Multnomah County District Attorney Rod Underhill may be 100 percent correct in concluding that a police accountability measure negotiated by the city last year could jeopardize the ability to prosecute police officers who shoot someone.
He may be appropriately cautious in advising that internal-affairs investigators hold off on interviewing officers who use deadly force until criminal investigators and a grand jury weigh possible charges in the shooting first.
But Underhill's suggestion to essentially put criminal considerations first shortchanges the police accountability practices that this weary community has been promised. That's unacceptable. The city should instead look to devise, negotiate and, if necessary, litigate a solution that allows Portland Police to do what many other law enforcement agencies already do - gather on-scene accounts from officers who use deadly force to examine whether employees acted appropriately according to bureau training and policies.
As The Oregonian/OregonLive's Maxine Bernstein reported, getting such immediate statements from officers has been a key reform sought by the federal justice department and other police accountability advocates. And it seemed that the city had finally scored a win last year when Mayor Charlie Hales negotiated a new contract with the police union that eliminated the so-called "48-hour rule" that granted officers two days before being asked to give internal affairs investigators a statement.
But about four months ago, Underhill sent a memo to city and police officials that warned against requiring an officer to give a statement to personnel investigators. He cited a 1984 Oregon Supreme Court opinion that found the Oregon Constitution's protection against self-incrimination requires granting someone who is compelled to testify broad immunity from prosecution. While that case centered on requiring testimony from a witness in a burglary case, Underhill argues that the same immunity standard applies for an officer compelled to give a statement to administrative internal-affairs investigators. Even though the investigation is separate from the criminal inquiry, information can still leak from one to the other.
But there are agencies around the country that successfully compel statements as part of an administrative inquiry that does not infringe on their officers' constitutional rights. And Underhill's own chief deputy district attorney told The Oregonian/OregonLive Editorial Board in February 2016 that he believed "a carefully walled off internal affairs statement, even if compelled, would not impair a criminal prosecution."
Clearly, the city needs more information before adopting a policy that fundamentally betrays its promise to the public. Mayor Ted Wheeler has already said he is talking with Underhill's office, as well as city attorneys and lawyers from the state and federal justice departments to work through the conflict. That's a good first step. Additionally, he should direct staff to review how other jurisdictions manage dueling investigations to maintain both the fundamentals of accountability and the officer's constitutional rights.
No one wants an officer who criminally shoots someone to escape prosecution. But the public should bear in mind that an enduring culture of accountability comes through the administrative actions that the bureau takes each day to train, evaluate, correct and discipline officers -- not through the exceedingly rare interventions by the criminal justice system. In Oregon, grand juries almost never bring criminal charges against police officers in use of force cases. There's a recognition of the difficulty involved in making split-second decisions on behalf of the public's safety. Convictions, as national experience shows, are far rarer. Portland citizens would be better served by ensuring that the police bureau has the policies it needs to hold employees accountable for maintaining professional standards through administrative means rather than pinning their hopes on criminal charges.
Wheeler should also fast-track development of a program to outfit police officers with body cameras, with a goal of rolling out their use by next year. While body cameras are not a panacea, they can provide a supplemental - or, if necessary, a replacement - account of an incident in which a police officer used force.
It's unfortunate that Underhill, an elected official, didn't think to join the public conversation a lot sooner, considering the high-profile discussions on the topic for years among federal justice officials, police commanders, past and current mayors and police reform advocates. He can help rectify that failure by arranging a forum with Wheeler in which they can share the legal concerns and policy considerations directly with the public.
The Oregonian/OregonLive Editorial Board
Oregonian editorials
Editorials reflect the collective opinion of The Oregonian/OregonLive editorial board, which operates independently of the newsroom.
Members of the editorial board are Laura Gunderson, Helen Jung, Mark Katches and John Maher.
To respond to this editorial:
Post your comment below, submit
, or
.
If you have questions about the opinion section, contact Laura Gunderson, editorial and commentary editor, at 503-221-8378 or lgunderson@oregonian.com.
Editorial Agenda 2017
Boost student success
Get Oregon's financial house in order
Help our homeless
Honor our diverse values
Make Portland a city that works
Expand access to public records
________________________
Read more about the editorial board's priorities for Oregon.