Story by Pete Shaw
A TALE OF TWO PORTLANDS
On Tuesday February 18th Federal Judge Michael Simon began hearing testimony regarding the proposed settlement agreement between the Department of Justice (DoJ) and the City of Portland. The agreement concerns the DOJ finding that the Police Bureau (PPB) “engaged in an unconstitutional pattern or practice of excessive force against people with mental illness.”
While the focus of the report was police violence toward people with mental issues, much of the community has also demanded an agreement that addresses police violence toward people of color. What emerged during the first day of testimony was two very different pictures of Portland and its institutions of government. One is the liberal paradise found splashed across the pages of travel magazines and seen in Portlandia. The other is the people and communities of color who are often terrorized by the Portland police.
The agreement, to which the Albina Ministerial Alliance Coalition for Justice and Reform (AMAC) and the Portland Police Bureau (PPB) are also parties, seeks to make changes to the PPB’s proclivity toward excessive violence. While many of the changes, such as those relating to the use of Tasers and de-escalation of force in relation to a decrease in resistance, appear to be steps in the right direction, they also have loopholes that might render the changes meaningless.
Essentially, the agreement would still permit a police officer to commit acts of violence as long as he feels himself or others are at threat, with the only real change being better protection for the City. Should a lawsuit follow violence, the City could now argue that an officer was just following the law.
Prior to testimony, Judge Simon said he did not have the power to amend the agreement, only to accept or reject it, depending upon whether he found it “fair, adequate, and reasonable.” Those are slippery terms, and it appears Simon has genuinely been wrestling with them. He granted the AMAC “enhanced amicus” status, allowing it to take part in settlement negotiations, and he has sought public input, allowing both recorded and written testimony.
With the gallery overflowing into another courtroom with closed caption television, testimony began with Michelle Jones, an attorney for the DOJ’s Civil Rights Division. “This agreement is for you,” Jones told the gallery. She said the agreement would lead to significant improvements in the PPB and that DOJ would “not rest” until the City came into full compliance, adding that if Simon rejected the agreement, there would be no guarantees as to what would replace it.
Jones then praised the citizens of Portland for their input, explaining the important role they played in shaping the agreement. Not only did the DOJ take comments from over 1000 people, she said, but it also conducted town hall meetings and met with community groups and that it had the “community to thank for many of the innovative ideas in the agreement.” Jones concluded her remarks by acknowledging that while many saw the agreement as lacking, they should not “let perfect be the enemy of the good” and that the agreement was “a first step forward and a good step forward.”
Charles Gruber, a DOJ witness and veteran police officer who has worked throughout the country to reform police departments and has participated in interviews with the community and the PPB, and “exhaustively” analyzed materials related to the settlement, approved of the agreement and felt it had a very good chance of being successful. Gruber, who was not allowed to be cross-examined–expressed ideas of success that seemed to center around problem-solving after police action. His language was soft, lacking in accountability. At one point, he emphasized that reform was about “constant improvement” and figuring out where “better decisions could have been made that could have resulted in a better outcome.”
Fred Bryant, the deceased father of Keaton Otis, who was killed by the PPB in 2010 and gave testimony to the DOJ in 2012 certainly would have disagreed this assessment. Rather than helping the three policemen who shot and killed his son figure out what better decisions–not shooting him 23 times–could have been made that would have resulted in a better outcome–not being dead–Bryant spent the last years of his life seeking justice for his son.
Gruber also noted that the public needs to feel confident that police will be held accountable for their actions, otherwise the PPB risks having every use of violence appear inappropriate. At points like this, it was difficult to know who Gruber saw as the victim–the PPB or those people and communities the PPB has terrorized. Predictably–although far later than the phrase is usually uttered during most police accountability discussions–Gruber got around to fingering the few bad apples as the source of the problem. Unfortunately, an institutional problem is not some blighted apples: it’s a putrid barrel that will remain rotten even when the rancid apples are removed or replaced.
“Unless you’ve been in a dark alley,” Gruber said, it’s difficult to determine how police actions should be disciplined. Some assessments of the agreement have stated that when it comes to accountability, there are too many loopholes, and Gruber’s testimony sounded as if he supported those loopholes–particularly the idea of a police officer falling back on the “totality of circumstances” standard. By that principle, an officer can excuse his actions by saying that an examination of the situation provoked him to act as he did. This is no different than the rationale that police have used in the past.
More importantly, Gruber’s testimony once again individualizes an institutional problem. The issue is not that a few police officers are shooting people, as if they were rogue actors in an otherwise benevolent institution. The issue is that the PPB keeps churning out officers who commit horrific acts of violence and then are not held accountable for those acts. Gruber did make mention of the need to change Portland’s police culture–calling it a “closed society”–but the his focus was on individual officers, not the PPB itself.
In light of the loopholes, if police accountability still hinges on an officer’s rendition of events, can any real change take place? One root of the PPB’s problems is that officers realize they are the ones who dictate reality, and the result is a police force in which not one officer has been disciplined for killing someone in 35 years. If a police officer’s story is still privileged over all others, then very little change can be expected.
Judge Simon then asked Gruber how fair, adequate, and reasonable the agreement could be since it “does not explicitly discuss” racial profiling. Gruber said that in the DOJ’s investigation of the PPB, while it specifically looked for racial profiling, “we just didn’t have the data to give us the right direction.” That statement drew a moan from a gallery that may have been wondering how much more “data” was needed than Kendra James, Aaron Campbell, and the numerous other people of color the police have murdered, brutalized, or intimidated.
Portland deputy city attorney Ellen Osoinach also urged Simon to accept the agreement, stating that much of it was “currently being vigorously implemented by the City” including, according to Osoinach, over half of the 80 settlement agreement reforms. She then went on to praise the PPB’s Behavioral Health Unit and the 40 hours of crisis intervention training all front line officers have received each year since 2012. By May, Osoinach said, 90 officers will have received enhanced training that will make them responsible for mental health calls on their shifts.
Osoinach then gave a presentation highlighting the good work of these trained officers, although once again it seemed people were being asked to separate the good and bad apples. She also noted that police use of force had declined each year from 2008 to 2013, a point that would later by contested by public testimony.
Osoinach also talked up the great strides made in gaining funding for mental health services, although an item by Denis Theriault on Portland Mercury website shows this to be bilge (see: http://www.portlandmercury.com/portland/an-empty-mandate/Content?oid=11777964).
The other side of Portland emerged when the AMAC gave its views on the agreement. Reverend Leroy Haynes said that even after the Declaration of Independence, the Civil War, the 13th, 14th, and 15th amendments to the Constitution, and the various civil rights acts of the 1960s, people of color, as well as people with mental illness, were “once again pleading for justice”. Haynes acknowledged that the agreement could have been stronger and needed to resolve many issues, but also saw it “as an opportunity to set a foundation for oversight and accountability.”
Pastor Mark Knutson of the Augustana Lutheran Church also supported the agreement with reservations, saying it was part of a much larger step in the right direction. But getting there, he said, would require greater transparency on the part of the PPB. The agreement, Knutson said, lacked genuine, independent police oversight and made little mention of how the public could remain involved in PPB reform efforts. Knutson talked about how when his African American son went out at night, he and his wife, like most parents of children of color, worried he might become a victim of police violence. “Our goal,” he said, “is that every person in the City can go home safe at night…but the vision is to make all people safe.”
Pastor T. Allen Bethel, President of the Albina Ministerial Alliance (AMA) also supported the agreement, but stated it only “set a floor, set a foundation–not a ceiling, and not an end.” Bethel insisted that the 48-hour window between the time a police officer kills someone and when he must explain the events surrounding the shooting must be abolished. “There is no valid justification for this rule,” he said, adding that it “undermines public confidence”. Bethel echoed Knutson in urging that the public have more input in modifying the agreement.
Bethel reminded Simon that for years prior to the DOJ’s findings the AMA “yelled, screamed, and shouted for reform,” but those demands “all fell on deaf ears” until the DOJ’s report. Regarding Osoinach’s assertion about the decline in police violence over the past five years, Bethel said, “When stops occur and arrests occur, there is much more than what is happening on paper.”
For these reasons, as well as the fact that the PPB and the City only seem willing to make changes when they are caught, Bethel insisted on the necessity of an independent court appointed monitor, rather than leaving accountability in the hands of the PPB or the City. “There must be great oversight, if I might add, with a hammer,” Bethel said. “And if I might add, with bars on the door.”Simon replied that it was the DOJ that had the hammer, noting that he, on the other hand, had a gavel. But perhaps acknowledging the need for a court appointed monitor outside the influence of the City and the PPB, he added that a gavel can sometimes be as powerful as a hammer.
After the PPB opted not to make a statement, community members began their testimony, which ranged from asking Simon not to approve the agreement to providing as much truly independent PPB oversight as possible. Jo Ann Hardesty of Consult Hardesty asked Simon to “reject the agreement and go to trial”, where she was sure it would be found that the PPB uses illegal force. Hardesty added that “truly independent oversight would be independent of the police and City Hall” and whoever provided that oversight would not be “an apologist” for the police, but would “hold them accountable”.
Jeri Williams, who has spent years working for police accountability and spoke as part of Consult Hardesty, disputed Osoinach’s numbers regarding a decrease in police violence. “People are complaining less,” she said, “because they have less faith in the police than ever before,” and they know “it will get them nowhere.” Regarding her negative interactions with the police, Williams said, “I didn’t want discipline. I wanted them to stop what they do.”
Roger Hardesty, also of Consult Hardesty, emphasized that while public input was solicited for the agreement, it was drawn up “in secret with no public oversight.” He described it as a “police-centric agreement” that “protected the City from fiduciary problems.” Hardesty stated that the PPB’s “long record of abuse” meant it was a bad idea to make the “perpetrators responsible for the remedy”.
Jo Ann Hardesty closed Consult Hardy’s testimony by reminding Simon of the PPB’s history of racial profiling. Showing the systemic racism at PPB, she noted how police are now supposed to spend 15 minutes of each hour on the street in conversation with the community, but that “Portland police don’t feel safe unless they can pat down people of color.”
Hardesty also stated that the police are not the right people to make mental health calls. “It’s insulting to the community to think that 40 hours of training are going to make police proper first responders.”
Hardesty finished by telling Simon that the agreement “doesn’t provide justice to people who have suffered at police hands” and urged him to require a trial that would result in a solution that is “fair, adequate, and reasonable for the community, not just the police.”
Members of the NAACP also addressed the court. Tony Funchess, First Vice President of the Portland chapter, wondered how the Portland police could possibly be trusted as first responders for people with mental health issues or those experiencing mental health crises. He also said the agreement did not serve people, but rather served “to continue the status quo” that has already resulted in “children being incarcerated, beaten in the streets, and killed by police officers.”
Gerald Hankerson, President of the Seattle/King County NAACP, said that while the NAACP did not oppose the agreement, it felt it needed to be far more reaching than currently written. He urged Judge Simon to notice that historically there was nothing new about police violence against people of color and that the agreement did not address how the City was going to deal with racial profiling. Hankerson, speaking to Osoinach, said “Had you heard the complaints, cries, screaming, and yelling…you couldn’t agree to this.”
“Settlement of what? And on whose back have we settled?” Hankerson asked, saying the DOJ should “come to an agreement with the community, not the City of Portland.” Echoing Reverend Haynes, Hankerson said that this case was just more of the “same old thing that we’ve been going through the last hundred years.”
Hankerson called the agreement a hollow victory, predicting that when the DOJ’s lawyers leave Portland, the police will “get back in their cars and continue destroying our communities.” He said the agreement had been written on a “pretty piece of paper, just like the Constitution” and then asked Simon to consider the history of how people of color have been denied the promises of that document.
Thomas Steenson, who has spent over 30 years practicing civil rights law, urged Simon to reject the agreement, saying that the settlement would do nothing to stem the “absence of discipline” that “contributes to a toxic environment,” in which Portland police continually evade discipline.
Steenson noted that the agreement contains only one sentence on discipline, which he felt would likely lead to nothing. He added that he felt the 2013 Use of Force policy that resulted from the DOJ’s findings, was “no better, maybe worse, than existing policy.”
One of the primary problems of the agreement as it relates to PPB violence toward people of color is that it seems to have been created in a vacuum. Though the DOJ’s initial report made mention of what appeared to be problems between the PPB and communities of color, the case was aimed at how the PPB interacts with people with mental health issues. Judge Simon sought to remedy some of that problem by granting the AMAC enhanced amicus status.
More important, though, is the failure to learn from history when it comes to police and how they deal with people of color. One of the founding ideologies of Oregon was its explicit ban of Black people. The subsequent effect that ideology has had on the development and maintenance of Oregon’s governmental institutions lacks consideration in this agreement.
It should come as no surprise when PPB violence gets a pass–after all, the job of police is to protect the status quo, and since its inception, this state (and the country as a whole) has upheld white supremacy. This protection of the status quo has come in both hard form, such as police violence against people of color, and soft, whereby democratically elected institutions like the Portland City Council promote land grabs–called urban development–in areas where racist policies such as mortgage redlining prevented Black families from purchasing houses.
With the release of a report on Wednesday showing that the PPB clearly profiles people of color (https://www.portlandoregon.gov/police/article/481668), the data that Gruber and the DOJ could not find is now available, and that alone would seem to demand a better settlement agreement.
Some time in March, Judge Simon will decide to accept or reject the agreement. He has suggested that amendments be added, with the implication that those amendments give consideration to the views expressed by community members during Tuesday and Wednesday’s testimony. The DOJ and City complained that adding amendments could destroy their fragile agreement. “The agreement is not a panacea,” said US Attorney Amanda Marshall in an Oregonian interview. “It is not going to solve a lack of community-based health care, or a decades-long history of distrust in the African American community of Portland police. But this agreement will provide a foundation upon which those issues can be addressed.”
Obviously, there is good reason for distrusting the Portland police. And when murders, beatings, friskings, and other patterns of violence and humiliation go unpunished–or are even rendered non-existent due to a dearth of “good data”–there is the larger question of how the system can possibly hope to administer justice. The present agreement does not even remotely broach that topic.
The question then arises: if the agreement, as Thomas Steenson said, would likely lead to nothing, and in some ways would create an even more toxic environment at the PPB, does it really matter if it falls apart?