Portland police are considering a new policy that could cause a delay of weeks before an officer who kills someone on duty would be compelled to say what happened.

The proposed policy change results from the legal advice of the Multnomah County district attorney based on a 1984 Oregon Supreme Court ruling and an interpretation of the state constitution.

But it's raising concern among advocacy groups and the director of the city's Independent Police Review who worry that further delays in getting a statement from an officer involved in a fatal shooting would set the city backward and contradict repeated recommendations from hired police consultants.

The changes would follow the hard-fought and successful elimination of the controversial "48-hour rule" in the police contract that had allowed the officers to wait at least two days before making a statement to internal affairs.

"If the city abides by the district attorney's desire to delay administrative interviews, it may be in a position of not having a 48-hour rule but a de facto 40-day rule,'' Constantin Severe, director of the city's Independent Police Review, said in a memo to the mayor and police chief.

Under the proposal, police internal affairs investigators couldn't order an officer who fatally shoots someone or is responsible for a death in custody to answer questions for an administrative review without getting the approval of the Multnomah County district attorney. That approval would come only after the officer testified before a grand jury in the criminal investigation and no indictment was returned.

The only exception to compel an interview with an officer would be when information is "immediately necessary to protect life and/or ensure the safety of the public,'' according to a draft of the Police Bureau's revamped directive on use of force.

Officers still could volunteer statements earlier to investigators, but that would be up to them -- and it's been rare in fatal shootings.

The proposed directive also would allow the officer who fired the fatal shots to wait to write a report until after completion of a criminal investigation – contrary to what the U.S. Department of Justice sought last year.

The changes are the result of a legal opinion by Underhill and his staff, buoyed by support from the Oregon Department of Justice, which rests on a state Supreme Court ruling in a 1984 case called State v. Soriano. Underhill has met repeatedly with the U.S. Attorney's Office and federal civil rights lawyers, who say they now recognize Oregon's legal constraints.

"The legal landscape in Oregon is different," Oregon's U.S. Attorney Billy J. Williams said. "I think it's very important to understand that DAs have to comply with the realities of Oregon law. We don't want to be putting a policy in place that's going to affect the potential prosecution in a case."

In practice, the Police Bureau already has begun to adhere to Underhill's legal advice, outlined in a late March memo.

After a Feb. 9 shooting, for example, internal affairs interviewed all involved officers within 48 hours. After a police shooting on May 10, it was more than a month later before the officer involved was interviewed by either a detective doing the criminal investigation or internal affairs investigators doing the administrative review, Severe noted.

So far, the proposal has drawn the ire of Severe and the Albina Ministerial Alliance's Coalition for Justice and Police Reform.

"A return to delayed interviews of Police Bureau members in officer-involved shootings is untenable from the standpoint of community expectations and investigative best practice,'' Severe wrote in his letter.

The community coalition criticized both the proposal, posted on the Police Bureau's website, and the time afforded to weigh in on the changes. Coalition leaders are urging the City Council to require a public hearing before the Police Bureau adopts the changes.

"Otherwise Portland will be stuck with the 'Ten Times 48-Hour Rule' for years to come,'' the coalition wrote in a statement.

DA: WALL NOT RECOGNIZED

The crux of the issue is the dueling nature of separate police investigations when officers shoot or otherwise kill someone in the course of their jobs.

There's the criminal investigation when detectives seek to learn what occurred and if anyone should be held criminally liable. There's also a police internal affairs administrative review where police investigators work to determine whether an officer's actions followed bureau policies, procedures and training.

In recent years, the two investigations have occurred at the same time. Detectives in criminal investigations can't force an officer to talk or the officer would be granted immunity from prosecution. But until now, internal affairs investigators had the ability to compel officers to give a statement with no immunity from criminal prosecution.

In late March, Underhill advised Portland police and city officials that ordering an officer who has used deadly force to talk to internal affairs violates the officer's right against self-incrimination even if internal affairs doesn't share the information with detectives doing the criminal investigation.

"Such compulsion, absent a sufficient grant of immunity, is unlawful and violates Article 1, Section 12 of the Oregon Constitution,'' wrote Deputy District Attorney Ryan Lufkin in a memo to Underhill shared with police.

In state v. Soriano, the Oregon Supreme Court said the state could not realistically erect a wall between the officers who solicit a compelled statement and the prosecution team.

"It is unrealistic to give a dog a bone and to expect him not to chew on it. ... We hold that Article 1, Section 12, of the Oregon Constitution forbids giving the dog the bone. Only transactional immunity is constitutional in Oregon,'' the court said.

Document: The proposed changes to Portland Police Bureau's Use of Force Directive

Document: Memo from the Multnomah County District Attorney's Office, with Oregon Department of Justice support

Document: Memo of concern from Constantin Severe, of Portland's Independent Police Review

Document: Statement from Albina Ministerial Alliance's Coalition for Justice and Police Reform

Transactional immunity precludes the state from prosecuting someone for an offense related to their compelled statements. Case law has held that the state cannot force the statements of a witness without granting transactional immunity because they have the right to remain silent, according to the district attorney's office.

Underhill said he had growing concerns about Portland police being pushed by federal Justice officials to quicken the internal administrative investigations of police shootings.

Although police in other parts of the country have effectively maintained such a wall between internal affairs and criminal investigations, "it's impossible to build that impenetrable wall'' under Oregon law, Underhill said.

The change doesn't prevent the internal affairs reviews from proceeding immediately -- without the involved officer's statements, he said. The public also rarely has access to the internal affairs interview of an officer who fatally shot someone, he noted.

Underhill also advised that any requirement for the officer to write a report on the fatal encounter would be as if the officer was being compelled to speak and result in immunity.

MEDIATION CONTINUES

In February 2016, lawyers from the U.S. Justice Department urged the Police Bureau to require officers who use deadly force to file immediate accounts of what occurred. Waiting longer runs the risk of the account being contaminated by outside influences, police experts have said. The officer may hear talk about the encounter from other officers, get information from a lawyer or witness a video of the incident, they've argued.

The department entered into a settlement agreement with the city after an investigation that found a pattern of excessive force against people with mental illness.

Assistant U.S. Attorney Jared Hager argued that 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. A statement is considered compelled only when officers face the threat of losing their jobs, not simply the possibility of discipline, Hager told City Council members then.

Michael Gennaco, a consultant with the California-based OIR Group hired by the city, told the City Council last year 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 in an interview room, walled off and protected from the detectives' inquiry.

"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.

The federal Justice Department's report-writing recommendation would have addressed longstanding concerns about the controversial "48-hour rule," which had been part of the police union contract until last year. It required internal affairs investigators to give officers at least two days' notice before interviewing them after a deadly shooting or death in custody.

The 48-hour notice requirement was eliminated in a new police contract.

Yet it appears that won't make much of a difference in the investigation of fatal police shootings going forward.

The district attorney isn't likely to allow compelled interviews in internal affairs investigations to happen until after a criminal grand jury hears a case, which could be weeks after a shooting.

Federal Justice officials, however, are in continuing mediation talks regarding police accountability measures, Williams said. He declined to provide specifics.

Over the last several months, Underhill and his staff have met with Chief Mike Marshman, staff from Mayor Ted Wheeler's office, Severe with the Independent Police Review Division, city attorneys, federal Justice Department lawyers and a police union attorney.

"I have to balance protecting a prosecution of a potential suspect with the community desire to have a statement from officers," Marshman told The Oregonian/OregonLive.

Even if the indictments of police officers in on-duty shootings are extremely rare, "I'd be remiss in my duties if I were to just throw that criminal case out the window. Would you really want the chief of police to immunize an officer from prosecution?"

Marshman, who is working to retain his job as police chief as the mayor conducts a national search, said he was disappointed the Albina Ministerial Alliance issued a press release without calling him to try to understand the changes.

"I get their frustration, but I'm personally a bit frustrated because they're making it sound like I orchestrated all of this," Marshman said. The chief said he's been working with Justice Department lawyers, Underhill and others to try to make a policy that works and is legal.

Marshman said he's working to have the use-of-force directive done by October. Meanwhile, he said he understands explaining the changes to the public will be difficult because it's complicated and full of nuances, but expects federal officials to be on board.

"We're not going to put out a draft policy for the public to review if I don't think the Department of Justice is not going to approve it," Marshman said.

Mayor Ted Wheeler said the district attorney's legal advice complicates the city's effort to get a compelled statement soon after a shooting. "We will continue to evaluate our options," he said.

Severe has urged the mayor and chief not to accept the district attorney's position but seek other legal advice. If they don't, the city needs to be up front with the public about the ramifications, he said.

"Given the turmoil over the latest union contract and the public's understanding that the 48-hour rule no longer applies, it is unfair to not apprise the public that even longer delays are occurring because of the District Attorney's position,'' Severe wrote to the mayor.

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian