Portland's mayor wants to press ahead for a court opinion on whether the Police Bureau can order an officer who uses deadly force to speak to internal affairs investigators within 48 hours, without compromising an ongoing criminal inquiry.

Mayor Ted Wheeler will ask the City Council on Aug. 3 to pass a policy that would push for police interviews with internal affairs investigations within 48 hours of an officer's use of deadly force under tight confidentiality restrictions, roping such an internal administrative review off from the district attorney's criminal inquiry.

But before it goes into effect, the city will petition for a circuit court judge, and then likely an appellate court, to validate the policy or determine whether it's legally valid.

Document: Proposed city ordinance

Meanwhile, the Police Bureau's revised use of force directive, based on Multnomah County District Attorney Rod Underhill's legal advice, is expected to go into effect within 30 days.

That requires internal affairs investigators to get approval from the district attorney before ordering any officer who uses deadly force to speak in an internal administrative interview. The district attorney, citing a 1984 Oregon Supreme Court ruling, believes any officer compelled to give a statement to internal affairs before a criminal investigation is completed could have his statements suppressed by a court and granted immunity from prosecution. The 1984 Supreme Court ruling affirmed a state appeals court ruling from 1982.

The district attorney, in a memo issued in late March, advised the Police Bureau to hold off compelling any police interviews until after a grand jury has heard the case, which could be weeks after a deadly encounter.

Underhill's advice to police followed the hard-fought and successful elimination of the controversial "48-hour rule" in the police contract that had allowed officers to wait at least two days before making a statement to internal affairs.

"I oppose the 48-Hour Rule. Officers who wrongly use deadly force should no longer wear a badge. The previous Council paid a steep price to eliminate the rule, and I want it gone forever,'' Wheeler said in a prepared statement.

The mayor said Underhill's interpretation of the Supreme Court ruling is "the best we have at this time,'' yet he added that he's not convinced the 1984 case, which did not specifically deal with the circumstances of concurrent employment and criminal investigations, "should be the final word on issues critical to police accountability and public trust today.''

Underhill on Friday said he welcomed the city's move to get a court ruling.

"I support the city's efforts to have our courts review the constitutional implications of the city's administrative practices in this area. Everyone will benefit from the clarity a reviewing court will offer to this practice - the sooner the better,'' Underhill wrote, in response to the mayor's move.

Officer Daryl Turner, president of the Portland Police Association that represents rank-and-file officers, said he was dismayed by the mayor's move. "It is frustrating that our Mayor is actively seeking ways to undermine our constitutional rights as police officers,'' Turner said.

The ordinance that will go before council next month says the law on the issue "is not entirely clear'' and that the district attorney's interpretation "frustrates the compelling public interest in a prompt and timely administrative investigation'' to determine if an officer who killed someone on duty violated any city policies or training.

Under the proposed policy, an internal affairs investigator could compel an officer to answer questions within 48 hours of a deadly force incident, unless there was a compelling reason to delay the meeting. Refusal to talk to internal affairs may be grounds for a disciplinary action based on failure to follow directives, but it will be decided on a case-by-case basis. Refusal alone would not be enough for discipline.

The internal affairs captain would be responsible for ensuring that the compelled statements and any evidence derived from them are "kept wholly confidential'' within the bureau's Professional Standards Division and not provided to anyone involved in the criminal inquiry, or anyone outside of the division, until the criminal investigation is done.

Even if a district court judge approved of officers' compelled statements within 48 hours of a deadly force incident, it likely would take an appellate court ruling on the subject before a change is made, as Underhill is relying on a 1982 state appellate court ruling, approved by the state Supreme Court, city attorneys said.

Michael Gennaco, of the California-based OIR Group that's been hired by the city to review officer-involved shootings, told The Oregonian/OregonLive, that "any investigative system whereby no one is able to interview an involved officer in an officer-involved shooting for several weeks is wholly inconsistent with best investigative practices.''

He added, "The proposed amendments to Police Bureau directives that would change the waiting period for such interview from 48 hours to several weeks is in serious need of further discussion and reconsideration.''

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian