US DOJ v. Portland Settlement Agreement, Approved

By Bob Joondeph, Executive Director of Disability Rights Oregon

The Agreement is really two related agreements. One is about police policies and practices and is enforceable. One is about adequate community mental health services and is “aspirational.” All agree that the aspirational parts are necessary for the enforceable parts to work.

It’s been almost two years since the US Department of Justice (USDOJ) and the City of Portland reached a tentative agreement to reduce police use of unnecessary force against individuals with mental illness. Yesterday (August 29), Judge Michael Simon ruled that the settlement is fair and should be implemented.

Part of the delay was the result of a successful effort to intervene in the case by the Portland Police Association, appointment of special status to the Albina Ministerial Alliance Coalition (of which DRO is a member), and an open and robust process for public input. The judge also had to decide how to monitor the settlement and whether police should be required to wear body cameras.

Judge Simon ultimately required annual reviews but no cameras. He thereby set in motion the agreed processes for implementing new rules and procedures for use of Tasers, evaluation of officers’ use of force, organization of the police behavioral health unit, and police training, discipline and public accountability.

The agreement states that use of force should be lawful, no greater than necessary, properly documented, reported, investigated, evaluated and, if necessary, remedied. The police are to “ensure that officers use non-force and verbal techniques to effect compliance with police orders whenever feasible, especially in the course of conducting welfare checks or effecting arrests for minor offenses or for persons whom officers have reason to believe are experiencing a mental health crisis; de-escalate the use of force at the earliest possible moment; only resort to those use of force weapons, including less-lethal weapons, as necessary; and refrain from the use of force against individuals who are already under control by officers, or who may express verbal discontent with officers but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function.”

If you’re still with me, you may have noticed that all of these requirements address police behavior. Somewhat sadly, the agreement acknowledges that the underlying culprit behind the escalation of police violence in Portland is our dysfunctional mental health “system.” The agreement sets out a number of proposals for fixing the system but, as both USDOJ and Portland have pointed out, these are merely “aspirational.”

The agreement notes that police are often the first-responders to people in mental health crisis due to the lack of adequate community mental health services. It mention that, in another case, the USDOJ is working with Oregon’s state government to identify and address “gaps” in community mental health services that result in over-reliance on institutional care. But it acknowledges that in Portland case, neither the state nor the local agencies that are responsible for community mental health services are parties to agreement and required to obey them.

So what are the steps that the USDOJ cannot enforce but “expects” the city’s partners to do? (By “partners,” they mean the state, local Community Care Organizations -“CCOs”-, the County, local hospitals, health insurance providers, commercial health providers, community-based mental health providers, and other stakeholders.) Here goes:

CCOs will establish, by mid-2013, one or more drop-off center(s) for first responders and public walk-in centers for individuals with addictions and/or behavioral health service needs. They will also immediately create addictions and mental health-focused subcommittee(s) to pursue immediate and long-term improvements to the behavioral health care system, including:

a. Increased sharing of information,

b. Creation of rapid-access clinics,

c. Enhanced access to primary care providers,

d. Expanded options to divert crisis calls to qualified civilian mental health providers as first responders,

e. Expanding and strengthening networks of Peer-Mediated services to develop a referral guide and expand peer services including peer guides to work in emergency rooms,

f. Pursuing tele-psychiatry.

To sum up, the USDOJ-Portland Settlement Agreement is really two related agreements. The part about police policies and practices is enforceable. The part about adequate community mental health services is aspirational. Both parties acknowledge that the aspirational parts are necessary for the enforceable parts to achieve their goal. One wonders if the Governor, legislature and CCOs understood that in embarking upon mental health integration as a part of health care reform, they were becoming a key component for civil rights protection.