The District Attorney’s Office May Be Over-Protecting Cops Legal loopholes could keep police testimony under lock and key

Subin Yang

A seemingly innocuous case against a Portland police sergeant may set a new precedent for how far the county’s top lawyer will go to protect cops—and how little the citizen-led police oversight board can do about it.

When a Portlander brings a potentially criminal complaint against an officer, it’s Portland Police Bureau (PPB) procedure to call for two investigations: one conducted by PPB or city staff to find if the officer violated workplace rules, and another conducted by the Multnomah County District Attorney’s office to decide if the officer broke any laws.

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The administrative investigation is either handled by PPB’s internal affairs department or the Independent Police Review (IPR), the city department that investigates cases involving higher-ranking officers, crowd control cases, and issues involving vulnerable populations. A citizen can appeal a decision made by internal affairs or the IPR to the Citizen Review Committee (CRC)—a panel of 11 volunteer community members that then makes recommendations to the IPR.

That’s what happened in December, when PPB’s internal affairs decided Sergeant Erin Smith should not be disciplined for telling activist Ben Kerensa that he “could be arrested” for filming officers during a 2016 protest—despite Smith admitting to investigators that he had lied to Kerensa. Kerensa successfully appealed this decision to the CRC. Smith's admitted lie cemented CRC’s recommendation that PPB discipline Smith, and Police Chief Danielle Outlaw agreed.

But last week, the Multnomah County District Attorney’s office decided that Smith’s empty threat didn’t merit criminal prosecution, and promptly closed its investigation. While the DA’s decision against pursuing the case isn’t necessarily shocking, the office’s explanation has raised concerns among police accountability advocates and lawyers.

In her April 18 analysis of the case, Senior Deputy District Attorney Amity Girt wrote that since Smith admitted to misleading Kerensa during an internal “administrative investigation”—not a criminal investigation—the admission cannot be used against Smith in a criminal trial. That’s because during these administrative investigations, like the ones conducted by the IPR, an officer’s testimony is considered “compelled,” meaning they’re at risk of losing their job if they refuse to testify. Thanks to the Fifth Amendment, a person’s compelled testimony cannot be used against them in court.

“The result of Sergeant Smith going through the administration investigative process and providing a compelled statement presents the risk of transactional immunity,” writes Girt. “Meaning that [Smith] could be entirely immune from prosecution for any crime stemming from this incident.”

A day later, Girt had edited this sentence out of the memo. But to Mat dos Santos, legal director of the ACLU of Oregon, the implications of that statement couldn’t be ignored.

Dos Santos says that while it’s true compelled statements can’t be used in the courtroom, they shouldn’t prevent the DA’s office from conducting a criminal investigation of an officer—an investigation where testimony is most definitely on the record. That’s why PPB runs two parallel but independent investigations, administrative and criminal, if they believe a cop is guilty of a crime.

According to dos Santos, District Attorney Rod Underhill has taken an “overbroad position” on an officer’s immunity from prosecution, blurring the line between these two investigations, and, in the process, shielding cops from criminal prosecution.

“It’s absurd, and the public should be outraged.” —Mat dos Santos, Legal Director of the ACLU of Oregon

“It’s such a troubling conclusion,” says dos Santos. “This means police officers can never be prosecuted for information that comes out in an administrative hearing. What happens when it’s something bigger—an investigation into sexual misconduct or a shooting? That means [the] DA could never get involved. It’s absurd, and the public should be outraged.”

It’s also a sign that the office of Multnomah County District Attorney Rod Underhill has not changed its mind about how cops should be treated after shooting a member of the public.

Last July, amid a police contract overhaul, Underhill argued that an officer involved in a shooting cannot be interviewed by internal affairs about the incident until after a criminal investigation is completed—a process that could take months. If PPB’s compelled interview takes place before the completion of a criminal investigation, Underhill wrote, the accused officer could be immune to criminal prosecution.

Both the National Lawyers Guild and the IPR disagreed with Underhill, insisting that officers should be interviewed by PPB’s internal affairs department within 48 hours of a shooting but that the content of those interviews should be kept from criminal prosecutors.

In a statement to the Mercury, Underhill confirmed he hasn’t changed his position on police immunity—but clarified Girt’s newly-amended analysis.

“Any statement that indicates that the District Attorney’s Office intends to reject all cases in which a compelled statement is obtained is incorrect,” Underhill wrote.

That statement, however, still implies that the DA’s office might reject some of those cases.

City officials have often pointed to the IPR as a transparent, community-led solution to officer misconduct. But if the DA’s ruling sets a precedent, it could mean that future complaints brought to the IPR could result in officers being shielded from criminal prosecution.

“It essentially guts IPR and internal affairs from being able to investigate their own officers,” says dos Santos. “That means those bodies have no power.”

IPR Director Constantin Severe doesn’t think this is necessarily the case. While the IPR may keep compelled statements under wraps, it doesn’t block IPR staff from tipping off the DA’s office when they suspect criminal fault.

“If we become aware of possible misconduct issues during our investigation, we let the criminal side know,” Severe told the Mercury. “Then prosecutors can discover whatever information we’ve obtained independently.”

Smith’s misconduct investigation might have been a low-stakes case, but it provided a glimpse into how the DA’s office might operate when a more serious accusation of officer wrongdoing lands in front of the IPR.

In the words of dos Santos: “This could become a real problem.”