United States v. City of Portland

United States v. City of Portland was a lawsuit filed by the United States Department of Justice against the City of Portland, Oregon on December 17, 2012, alleging a pattern or practice of unconstitutional use of force by the Portland Police Bureau against individuals with actual or perceived mental illness.
The lawsuit was filed a lawsuit in the U.S. District Court for the District of Oregon under the Violent Crime Control and Law Enforcement Act of 1994, against the City of Portland.
Background.
The U.S. Attorney's Office for the District of Oregon and the Civil Rights Division of the U.S. Department of Justice, based their findings on more than a year of investigation, and sought injunctive and declaratory relief.
Specifically, the DOJ claimed: (1) Portland police encounters with such individuals too frequently resulted in a higher level force than necessary; (2) Portland police employed Tasers more times than necessary on such individuals, or in circumstances where such force was not justified; and (3) Portland police used a higher degree of force than justified for low level offenses.
United States v. City of Portland is notable because of its finding persons with mental illness are primary recipients of police use-of-force.
In February 2010 after the killing of Aaron Campbell by Portland police officer Ron Frashour, at the request of an alliance of Black church leaders, Portland city councilor and police commissioner Dan Saltzman asked Senator Ron Wyden for assistance in bringing a Federal civil rights investigation of the Portland Police Bureau. Representative Earl Blumenauer joined Wyden in a letter to the DOJ asking for an investigation.
In a widely publicized press conference June 8, 2011, Assistant U.S. Attorney General Thomas E. Perez announced the launch of an investigation to determine whether the Portland Police Bureau engaged in a pattern or practice of excessive or unnecessary use-of-force in their interactions with persons in a protected class, people with actual or perceived mental health disabilities, and whether such conduct deprived individuals of their rights secured by the Fourth and Fourteenth Amendments of the U.S. Constitution.
The 18-month-long investigation was prompted by the high number of Portland police officer-involved deaths that involved individuals with mental illness, including Kendra James, James Jahar Perez, James Chasse, Raymond Gwerder, Keaton Otis, Jack Dale Collins, Aaron Campbell, Darryel Ferguson, Thomas Higginbotham, and Brad Morgan.
On September 13, 2012, DOJ issued a Findings Letter with the results of the investigation, stating investigators found reasonable cause to believe Portland police had engaged in unconstitutional conduct. The letter identified serious deficiencies in policy, training, and officer accountability measures that substantially contributed to the unconstitutional conduct by police. That same day, DOJ and the City of Portland released a joint statement declaring the parties' mutual intent to reach a negotiated settlement agreement to resolve these issues.
On October 13, 2012, in a joint press conference, the DOJ and the City of Portland announced a settlement had been reached. On November 15, 2012, Portland City Council unanimously approved the settlement agreement. On November 27, 2012 Portland City Council approved a new tax on service providers of telephone land-lines to pay for police reforms. On December 17, 2012 — the same date the complaint was filed —the parties filed a joint motion to enter a settlement agreement and conditionally dismiss the action, subject to the Court retaining jurisdiction to enforce the agreement.
The proposed settlement agreement includes detailed provisions addressing Portland Police Bureau policies and practices regarding: (1) use of force; (2) dealing with persons perceived as or actually suffering from mental illness or mental health crises; (3) dealing with persons suffering from addictions and mental health challenges; (4) crisis intervention; (5) identifying at-risk employees; (6) officer accountability; (7) training; (8) supervision; (9) misconduct complaint intake, investigation, and adjudication; (10) transparency and oversight; and (11) community engagement. The proposed settlement agreement also includes provisions regarding the implementation and enforcement of its terms.
On December 18, 2012, the Portland Police Association, the labor union representing officers of the Portland Police Bureau, filed a motion to intervene. On January 8, 2013, the Albina Ministerial Alliance Coalition for Justice and Police Reform also moved to intervene.
Both interveners asked to participate in any negotiations of the proposed settlement agreement. On February 19, 2013, the Judge Michael H. Simon fully granted the Portland Police Association's motion, and granted the Albina Ministerial Alliance Coalition for Justice and Police Reform "enhanced amicus status for remedy purposes." Ultimately, both parties were allowed to participate in the settlement negotiations. In 2018 The Mental Health Alliance was joined as an amicus intervenor.
Attorneys.
The United States has been represented by Brian Buehler, Adrian L. Brown, Laura Coon, Laura Cowall, Jonas Geissler, Renata Gowie, Jared Hager, Janice Hebert, Michelle Jones, Amanda Marshall (resigned), Robert Moosey, Thomas Morse, Thomas Perez (promoted to Secretary of Labor), Stephen Rosenbaum, Jonathan M. Smith, Seth Wayne, Thomas Wheeler, and Billy Williams. Marshall resigned her position in April 2015 and was replaced by Williams. Williams resigned his position in February 2021 and was replaced by Scott Erik Asphaug. The City of Portland has been represented by Mark Amberg, David Landrum, Ellen Osoinach, Judy Prosper, Tracy Reeve, James Van Dyke, Denis Vannier, Heidi Brown, Robert Taylor, and Bridget Donegan. Intervener Portland Police Association is represented by Anil Karia. Intervener Albina Ministerial Alliance Coalition for Justice and Police Reform has been represented by Ashlee Albies, Shauna Curphey, and Kristen Chambers. Intervenor Mental Health Alliance is represented by Juan Chavez and Franz Bruggemeier.
Outcome.
The settlement agreement includes 187 items. One item is the defendant (The City of Portland) must hire a compliance officer-community liaison (COCL) and form a Community Oversight Advisory Board (COAB). After soliciting only three eligible applicants for the $315,000 per year position, on November 8, 2014 Portland City Council selected a team of academics led by Dennis Rosenbaum of the University of Illinois at Chicago. During community meetings Rosenbaum's team received the lowest rating, but boosted their viability to Mayor Charlie Hales by agreeing to hire former Oregon state Supreme Court Chief Justice Paul De Muniz. De Muniz resigned April 8 citing poor health.
All parties reached a tentative agreement regarding the terms of the proposed settlement in December 2013. Subsequently, the court held a fairness hearing for the general public for February 18–19, 2014. Parties filed their post-hearing memoranda on July 2. Judge Michael Simon approved the agreement August 29, stating the city must give him annual updates on reforms for up to five years. City Council, led by Mayor Charlie Hales and Commissioner Amanda Fritz, with support from the police union, appealed Simon's decision on October 22, 2014. After months of talks between city and federal officials, they reached an agreement that the sessions won't be called "evidentiary hearings" but instead "status conferences," and the appeal was withdrawn in August 2015.
In September 2015 the DOJ released its first Compliance Status Assessment Report for the Settlement Agreement in "United States v. City of Portland". The report found the bureau was in "partial compliance" but also listed significant outstanding problems which were not addressed, including failure to track data on use of force, failure to write reports on shootings, and investigating officers sharing information - such as video recordings of shootings - with officers under investigation.
The DOJ's October 2016 Report cited progress on most items of the Agreement but excoriated Portland Mayor Charlie Hales and Police Chief Larry O'Dea for not informing investigators that O'Dea shot a friend while drinking alcohol and playing with firearms. Community oversight of the Agreement was stymied by hostility and poor facilitation by the Rosenbaum team causing the DOJ to allow city attorney Tracy Reeve to adjourn COAB meetings for 60 days on August 19.
Mayor Ted Wheeler disbanded the COAB on February 1, 2017 and after months of meetings with the DOJ, proffered an amended plan, stripped of independent community assessment of the implementation of the settlement agreement.
In August 2017 Portland City Council agreed to amend the Settlement Agreement to create a new community oversight group, the Portland Committee on Community-Engaged Policing, bypass the Police Review Board when an officer accepts discipline for less-serious offenses, remove a 180-day deadline for an appeal ruling on alleged police misconduct before the Citizen Review Committee, ensure officers who use deadly force are interviewed within 48 hours, change to how use of force data is measured and collected, and allow the COCL to report on one or two comprehensive elements of the settlement instead of addressing every single element. No changes directly benefited people with mental illness harmed by police. In December 2017, Portland dropped a legal challenge to court-ordered hearings. On April 19, 2018 Judge Simon gave a six-month conditional agreement to the amendments. The City failed to start a new community oversight group before the October 4 status conference and Simon extended the 'conditional' approval until June 2019. In a June 2019 status conference the city failed to show the oversight group had yet accomplished anything beyond being formed. In a February 2020 status conference, again the city failed to show the amendments to the agreement were fair, reasonable, and adequate. Amicus testified on the Portland Committee on Community-Engaged Policing, highlighting its attrition of members, lack of broad community outreach and respect for recommendations offered by members with mental illness, and Judge Simon gave the city another year to resolve issues. In September 2020 the COCL found the city out of compliance with data collection and training issues. In January 2021 citing the city's non-compliance, Judge Simon delayed further hearings until August of 2021. In April 2021 the US DOJ, echoing the COCL's September report, found the city out of compliance with the agreement and gave the city time to respond with a written plan.
In an independent analysis of Portland police data presented in Federal court in April 2022, Jonathan Betz Brown, PhD of the Mental Health Alliance showed no decrease in use of force by police, against people with mental illness or not, between 2017 and 2022.