Justice Department wants PPB to abolish controversial 48-hour rule, file use of force reports immediately

Daily Journal, Feb. 3, 2016

Assistant U.S. Attorney Jared Hager

Assistant U.S. Attorney Jared Hager

The U.S. Department of Justice wants Portland police to require officers who use deadly force to file immediate accounts of what occurred in use of force reports.

Justice Department lawyers are meeting next week with Multnomah County prosecutors and Portland city attorneys to try to get them on board.

Assistant U.S. Attorney Jared Hager said the Justice Department’s 2012 settlement with the city calls for the Police Bureau to review policies governing on-scene statements from officers in deadly force encounters and make them consistent with professional standards.

“This is something that’s a priority for the U.S. Attorney’s Office to get resolved,” Hager told City Council members last week.

The Police Bureau now requires officers who witness the use of force to file such reports and provide immediate statements to investigators. The reports include the officer’s description of what occurred.

The change would help address longstanding concerns that Justice officials, city-hired police consultants and community members have voiced about the controversial “48-hour rule,” which is part of the police union contract and requires internal affairs investigators to give officers at least two days’ notice before interviewing them after a deadly shooting or death in custody.

The city settlement stems from a federal investigation that found Portland police engaged in a pattern or practice of excessive force against people with mental illness or perceived to have mental illness. The negotiated settlement calls for a wide range of changes to Portland policies, training and oversight.

Police Chief Larry O’Dea last week repeatedly told the City Council that the bureau was acting at the direction of the Multnomah County District Attorney’s Office in choosing not to compel officers who use deadly force to talk to investigators right away.

“It really is their investigation,” O’Dea said.

Multnomah County Chief Deputy District Attorney Don Rees said this week that his office is involved in “ongoing conversations on this topic.” The DA’s Office is particularly interested in “preserving the integrity” of any criminal investigation into an officer’s use of force, Rees said.

City-hired consultants, in a report presented to the council last week, recommended yet again that the bureau enter into negotiations with the rank-and-file union to get rid of the 48-hour restriction.

In a written response, O’Dea said he agreed with the recommendation, yet said the contract isn’t up for renewal until June 2017.

Further, he sought to make clear that the 48-hour restriction pertains only to internal affairs investigations, in which an officer’s actions are examined to see if they follow bureau policy and training. The chief said the 48-hour restriction doesn’t prevent officers from voluntarily making statements to detectives leading a criminal investigation into a shooting.

But in Portland, it has the same effect: Detectives routinely ask officers involved in a shooting for an immediate statement or walk-through at the scene as part of the criminal investigation, but are routinely denied. And often, the officers aren’t interviewed by police detectives until at least two days after a shooting.

If detectives ordered an officer to provide a statement in a criminal inquiry, then the District Attorney’s Office couldn’t use what the officer said in any prosecution against him or her, the chief and detective division commander said.

“Once we compel (a statement), that creates some level of immunity for the officer who used that level of force,” Detective Division Cmdr. George Burke said. “We don’t want to do anything that is going to cause a problem with any admissibility (of statements) for the criminal investigation.”

But Justice Department officials don’t think the filing of use-of-force reports by police involved in fatal shootings would contaminate any criminal investigation.

“We feel the law is on the side of allowing some limited, routine reporting,” Hager told council members.

Case law supports the argument that use-of-force reports are part of a police officer’s routine job assignment, he said.

The 1967 U.S. Supreme Court decision Garrity v. New Jersey held that an incriminating statement made by a police officer is inadmissible against the officer in a criminal trial if the officer made the statement under the threat that the officer would lose his job if the officer invoked the right to remain silent. The court concluded that, under those narrow circumstances, the statement would be considered coerced because the officer was denied any meaningful opportunity to assert his Fifth Amendment rights against self-incrimination, according to federal Justice officials.

Based on the court decision and subsequent case law, Garrity wasn’t meant to apply to officers’ routine documentation of their activities, including, for example, the completion of use-of-force reports or discussing the use of force with department officials, according to Hager and Justice Department lawyers.

Cases from across the country have held that routine reporting is part of a public employee’s job and isn’t considered a compelled statement, Hager said. Something is only considered a compelled statement when officers face the threat of losing their jobs, not simply the possibility of discipline, he said.

“Attempting to provide blanket Garrity protection for every use of force statement is bad policy and goes beyond what is required by law or necessary to protect officers’ Fifth Amendment rights,” the Justice Department wrote in a technical memo to Seattle police more than four years ago. “Use-of-force statements are an invaluable training and officer-safety tool, and they are critical for maintaining accountability and managing risk.”

Michael Gennaco, a consultant with the California-based OIR Group hired by the city, told the City Council that many other major city police departments are able to avoid any contamination of their criminal investigations when internal affairs investigators compel officers in shootings to provide a statement to them about what happened on the same day of the event.

“The concern about the risk that somehow the obtaining of that compelled statement could then jeopardize a criminal investigation in this context has never happened in the history of mankind with regard to officer-involved shootings,” Gennaco told the council.

At other agencies, the officers give compelled statements in an interview room with internal affairs investigators, walled off and protected from any piece of the detectives’ criminal investigation, he said. That’s never presented to the district attorney’s office, so there’s no risk in contaminating the criminal investigation, Gennaco said.

Waiting for officers’ statements for more than 48 hours runs the risk of the account being contaminated by outside influences, he said. The officer may hear talk about the encounter in the police locker room, get information from a lawyer or witness a video of the incident.

Obtaining an immediate statement, in contrast, “provides you with an insight in the officer’s state of mind right after he’s used it,” Gennaco said.