Judge Delays Ruling on Portland's Police Settlement Agreement with DOJ, Citing Lack of Community Engagement

PCCEP's first meeting in November 2018. Alex Zielinski

On paper, it seems like the settlement agreement between the City of Portland and the US Department of Justice (DOJ) regarding the conduct of Portland police officers has been resolved.

But it's not that simple, as US District Judge Michael Simon decided at a Tuesday court hearing on the status of the agreement, which has been snaking through the federal court system for eight years.

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"It appears to me that there is a serious disagreement in whether or not there is substantial compliance with the settlement agreement," Simon said at the start of the hearing.

In 2012, the DOJ sued Portland, arguing the city had violated the United States Constitution by allowing its police officers to engage in "a pattern or practice of using excessive force" against people with a mental illness. To resolve this litigation, the City of Portland entered a settlement agreement with the DOJ in 2014, in which the city promised to create a walk-in emergency mental health medical center, form a behavioral health unit within the Portland Police Bureau (PPB), accelerate the process of investigating complaints of officer misconduct, expand mental health training for police officers, allow quarterly use-of-force audits within the PPB, and improve community outreach.

On January 10, the DOJ announced that the city has successfully met all the requirements laid out in the 2014 settlement (or, in legal terms, was in "substantial compliance" with the agreement). On Tuesday, Simon was expected to hear the DOJ's arguments and decide whether he, too, believed the city has met all of the DOJ's requirements.

But vocal opposition to the DOJ's ruling by Portland community leaders instead encouraged Simon to delay his decision for another year.

"You cannot solve problems in the community without community trust," said Dr. LeRoy Haynes, a civil rights leader and pastor who heads the Albina Ministerial Alliance Coalition (AMAC), a police accountability group. "And we don't see that trust."

AMAC, the League of Women Voters of Portland, the Mental Health Alliance, and Portland Copwatch have all disagreed with the DOJ's determination of substantial compliance. At the center of their disagreement is a single requirement baked into the settlement agreement: A component of community engagement to "promote community confidence in PPB and facilitate police/community relationships necessary to promote public safety."

From the start, Portland has had a difficult time meeting this requirement. The city originally created the Community Advisory Oversight Board (COAB) to work as a community oversight body, in which volunteer members could collect feedback from the public. But infighting between police and activists, disruptions from the public, and general neglect from City Hall led to COAB's demise.

Two years later, Mayor Ted Wheeler created the Portland Committee on Community Engaged Policing (PCCEP), another volunteer-led board, with hopes of meeting the DOJ agreement's requirements.

Since holding its first meeting in 2018, the 13-person PCCEP has had some successes: Both the group's recommendations on a police wellness program and the group's comments regarding the PPB's annual report have influenced PPB policy. But like any burgeoning committee, PCCEP has also seen its share of frustrations. From not being given clear instructions on how to make recommendations to PPB to PCCEP members feeling disrespected by fellow committee members during clunky, three-hour-long meetings, PCCEP's members have struggled to feel like they're making progress. That's been reflected in the group's tumultuous membership: Since convening its first meeting in November 2018, only two of the 13 original committee members are still sitting on PCCEP.

Community groups argue that PCCEP is hardly stable enough to sufficiently fulfill the DOJ's requirement of community engagement.

"We believe PCCEP needs to maintain 50 percent of its membership for a full year," said Juan Chavez, an attorney representing the local mental health advocacy group Mental Health Alliance. "PCCEP needs to create a comprehensive governance for effective decision making."

Several members of PCCEP's mental health subcommittee told Simon that the group's general ineffectiveness and what he perceived to be indifference to the needs of people with mental illnesses has been disheartening.

"It felt like a constant fight to get the interests of people with mental illness, addiction, alcoholism, and trauma to be considered by the other members of the PCCEP," said PCCEP member Patrick Nolen, who announced his resignation from the committee at the Tuesday hearing.

Other PCCEP members argued that the committee has been working hard to improve their decision-making process.

"Even when the outcome is not what a person wants," said PCCEP co-chair Andrew Kalloch, "the process is respected."

Kalloch acknowledged that the group's monthly meetings draw consistently small audiences, but said that PCCEP members—most of which have full-time jobs—commit long hours to reaching out to other community groups and individuals in hopes of getting their participation.

Lawyers with the DOJ seemed confident that PCCEP does, in fact, meet the requirements of the settlement agreement.

"We continue to believe that the PCCEP is moving the needle," said Assistant US Attorney Jared Hager. "We appreciate the concerns of the community, but the agreement... makes the United States the monitor." In other words, if Hager and other DOJ representatives say PCCEP's working, that should be enough to convince Simon to close the case.

Hager, who's worked on the case since the beginning, appeared frustrated that community input was delaying the case's closure. Portland City Attorney Tracy Reeve echoed Hager's sentiment.

"Most of the arguments being made are not that the city isn’t in substantial compliance, it's that there continues to be a trust deficit in the community," said Reeve. "That tells us there is work to be done. But that does not mean that the settlement agreement is the solution to all of those problems."

Simon, however, wasn't convinced PCCEP has proven itself capable of sufficiently fulfilling the the settlement's requirement.

"I still am not prepared to find that PCCEP... is facially adequate," said Simon. "It’s been very positive. It’s going in a good direction, but not without some hiccups. I’m going to defer against ruling on the amendment until its is further along."

Simon also suggested that community groups meet with the city and DOJ attorneys to decide how to fairly measure success in the final stages of litigation.

"If you all agree sustained, substantial compliance has been achieved, "then I’d give final approval," Simon said.

The parties won't return to Simon's court room for another check-in until February 25, 2021.

"I am sensitive that this settlement agreement was not anticipated to go on forever," Simon said in closing. "At some point, what needs to happen is we need to end this lawsuit. But the progress will continue."