THE FEDERAL JUDGE who's overseeing Portland's police reform settlement with the US Department of Justice says he's ready to approve the deal as drafted—but only if he gets his way on an 11th hour procedural change meant to increase court oversight of the controversial agreement.
That pushback by US District Court Judge Michael Simon—issued during a hearing on Monday, March 24—leaves Portland just shy of a landmark ruling that would end nearly two years of legal wrangling and set off a series of rapid-fire deadlines for both city hall and the police bureau.
A final ruling on the deal, up or down, now won't come until next month at the earliest. And it will depend on whether Simon gets what he wants: the right to require annual progress updates on how the reforms are progressing, instead of waiting until as late as 2017, some five years after the settlement agreement was negotiated.
"I am not satisfied with the prospect that three and a half years can go by with the court hearing absolutely nothing about how substantial compliance is progressing," Simon said.
Simon's request seems simple. He wants to keep alive—but "stay," or put on hold—a federal lawsuit accusing Portland police officers of violating the US Constitution by engaging in a "pattern or practice" of using excessive force against people with mental illness. The reform deal, as currently written, would dismiss the case with prejudice.
Simon, however, says he doesn't think he'll have the power to compel progress reports unless the case remains technically alive.
Keeping the lawsuit alive would also give him some extra leverage to compel changes: If he's displeased with the progress, he can lift the "stay"—scrapping the settlement agreement and sending the case to trial. A trial would force Simon to formally decide whether the city has engaged in unconstitutional policing. The settlement agreement doesn't go that far. It lets the city save face by agreeing to make changes without actually admitting guilt.
Simon's given the four parties arguing the case—the city, the feds, the Portland Police Association (PPA), and the Albina Ministerial Alliance (AMA) Coalition for Justice and Police Reform—until April 14 to huddle together and figure out how to answer his request.
The city and the PPA have both told the judge they're leery of letting him impose regular updates—with the police union arguing it might unravel the entire deal. The feds and the AMA coalition have both said they had no issue with it.
The feds and city are also worried about what would happen if Simon were to lift the stay—sending the case to trial maybe years after the accusations of police abuse were first levied.
"A stay would fundamentally alter the deal," argued Jonas Geissler, attorney for the federal justice department's civil rights division.
Before all that, however, Simon took some time to thunder against dismissive comments by PPA President Daryl Turner, first made public by the Mercury last month [Hall Monitor, February 26]. Turner, after enduring hours of harsh testimony at a reform fairness hearing, lamented in a private statement to his nearly 1,000 rank-and-file members—the people on whom the fate of this reform deal partially rests—"Why do we expose ourselves to the scrutiny of those who have never walked in our shoes?" Turner's own answer to his question amounted to a reluctant chin-up, suck-it-up sentiment: "It's just what we do!"
The judge saw it just a bit differently. He used it to set up his concerns about his own perceived lack of oversight.
"That is the very nature of a constitutional democracy under the rule of law," Simon said.