Portland police reforms delayed further as judge allows union to join settlement talks

By Maxine Bernstein, The Oregonian, Feb. 19, 2013

Daryl Turner (L) and Mike Reese

Daryl Turner (L) and Mike Reese

A judge on Feb. 19 directed everyone to the table — city and federal negotiators and now the Portland police union and a community coalition — to iron out differences in proposed reforms to address a scathing critique that police use too much force against people who suffer from mental illness.

If the city and police union can’t come to an agreement by April 5 with the help of a mediator, the U.S. Department of Justice can seek a court order to enforce changes to Portland police policy, training and oversight.

“I’m sensitive there is value in moving this process forward and not letting it drag on too long,” U.S. District Judge Michael H. Simon said in court Tuesday.

The judge’s ruling to add parties to the case extends the time line for a possible settlement until late April or May at the earliest. It comes as Portland police are investigating the fatal shooting of a 50-year-old federal fugitive by officers Sunday night outside a city hospital.

The U.S. Department of Justice spent nearly 15 months investigating how Portland police use force after a series of controversial police shootings. Investigators announced in September that they found police had engaged in a pattern or practice of excessive force against people suffering from or perceived to have a mental illness.

The City Council in November approved a settlement with the Justice Department that called for widespread changes, including a revamped police use of force policy, restrictions on use of Taser stun guns, creation of a new crisis intervention team of officers and quicker internal inquiries into alleged police misconduct.

But most of the reforms are on hold. The union has challenged them, saying many are subject to bargaining under its contract with the city. The union put the city on notice of its bargaining concerns as early as Oct. 16.

Many of the changes — such as requiring officers involved in a shooting to do an immediate walk-through of the scene for investigators and having detectives interview officers within 48 hours — could have been applied to the latest shooting.

For now, however, the judge said he hopes all the parties can complete mediation by the April deadline. If not, they will come back before him on May 23.

Simon ruled that the Portland Police Association can intervene in the part of the case that involves reforms. He agreed with the union that he must follow the precedent set in April 2002 by a 9th U.S. Circuit Court of Appeals ruling.

That ruling enabled the Los Angeles police union to intervene in a judicial decree reached between Los Angeles and the federal government after justice officials found police had engaged in excessive force, false arrests and improper searches and seizures.

The 9th Circuit found the union’s rights to negotiate the terms of its officers’ employment gave it standing.

Quoting from the appellate court ruling, Simon noted that an employer “cannot unilaterally change” a collective bargaining agreement, even to settle a dispute over whether the employer has violated the constitution.

The judge also found that neither the city nor the federal government can adequately protect the union’s interests. The judge, though, cautioned that his ruling doesn’t mean the police union has “the legal right to block a settlement by withholding their consent.”

The judge denied a request by the Albina Ministerial Alliance’s Coalition for Justice and Police Reform to intervene, but gave the coalition enhanced “friend of the court” status.

That will allow the coalition to file legal briefs, make oral arguments and participate in settlement discussions and a future fairness hearing on any agreement.

The judge said he wanted the coalition’s perspective to be heard. The coalition was founded in 2003 after the fatal shooting by police of Kendra James. It argued that it should have a voice in the proceedings because of its diversity and deep roots in the communities most affected by the police bureau’s excessive force.

“The AMA Coalition has extensive community outreach, a deep understanding of the issues, including those raised in this lawsuit, and an important perspective to bring to the remedy phase of this action,” Simon said in his ruling.

City Attorney James Van Dyke told the court that police may face budget cuts this year, and the city is about to start contract talks with the police union. The city also is seeking an expedited decision by a state labor board to clarify what police reforms must be subject to bargaining.

The city has argued that it has the right to alter its use of force policy as a management right, but the union disagrees.

“I just wanted the let the judge know there’s a lot of balls in the air,” Van Dyke said. “There’s a lot of moving pieces here. The pieces all seem to be related, but the pieces seem to be moving on separate tracks.”