National Lawyers Guild
Portland, Oregon Chapter
3519 NE 15th Ave #155
Portland, Oregon 97212
DATE: AUGUST 2, 2017
TO: PORTLAND CITY COUNCIL
FROM: PORTLAND CHAPTER OF THE NATIONAL LAWYERS GUILD
ENDORSED BY: AMA COALITION FOR JUSTICE AND POLICE REFORM
OREGON JUSTICE RESOURCE CENTER
NAACP PORTLAND BRANCH
CC: PORTLAND CITY AUDITOR
MULTNOMAH COUNTY DISTRICT ATTORNEY
OREGON DEPARTMENT OF JUSTICE
RE: RESPONSE TO THE CITY’S COMPELLED OFFICER TESTIMONY
The City of Portland is currently shaping its policy regarding compelled statements from officers involved in deadly force incidents. The public has a strong interest in obtaining prompt interviews of police officers who use deadly force. At the same time, there is a risk that compelling an officer to respond to questions about a deadly force incident in violation of the officer’s right against self-incrimination could jeopardize a criminal prosecution of the officer, if adequate safeguards are not in place.
Mayor Wheeler’s current proposal for handling this issue, as described below, does not appropriately balance these competing concerns. The proposal is founded on an inaccurate assessment of Oregon law. In addition, the proposal requires an inadequate policy to remain in operation while the City attempts to obtain a court opinion on a policy that does not go far enough to hold officers accountable.
As this memo demonstrates, Oregon law clearly supports immediate implementation of a directive that compels officers who have used deadly force to provide a statement within 24 hours. The National Lawyers Guild (NLG) urges the City to take this course, starting with policies and procedures that ensure separate administrative and criminal investigations, with a plan to transfer the administrative investigation piece to the Independent Police Review (IPR) as soon as possible.
When an officer is involved in a deadly force incident, two investigations take place. Detectives from the Portland Police Bureau (PPB) homicide division conduct a criminal investigation, while members of the PPB’s Professional Standards Division (Internal Affairs/IA) conduct an administrative review to determine if the officer should be subject to workplace discipline. As to the latter investigation, when and how the City may compel an officer to answer questions about the use of deadly force has been a subject of controversy for many years.
In June 2011, the U.S. Department of Justice (DOJ) commenced an investigation into whether the PPB engaged in civil rights violations relating to officers’ use of force. At the time of the DOJ investigation, the Portland Police Association’s (PPA) collective bargaining agreement with the City provided that, in an employment discipline investigation, an officer must receive 48 hours of advance notice before being required to submit to an interview or write a report, so long as the delay did not jeopardize the investigation. Police practices experts and police accountability advocates roundly criticized this provision, known as the “48-hour rule.”
In 2012, the DOJ issued the findings of its investigation, which concluded that the PPB had engaged in a pattern or practice of using excessive force on individuals with actual or perceived mental illness. The DOJ’s findings letter also found that the PPB’s supervisory review of officers’ use of force was “insufficient to identify and correct patterns of excessive force in a timely fashion.” The DOJ noted that “Multnomah County District Attorney previously requested that PPB not conduct IA investigations of officer-involved shootings until after the completion of the DA’s investigation and/or criminal prosecution.”
The DOJ, however, recommended that “PPB should make clear in its policy that administrative and criminal investigation shall run concurrently.” It further stated that “PPB should also clearly set forth in policy that though IA may use criminal investigation material in appropriate circumstances, all administrative interviews compelling statements, if any, of the subject officer and all information flowing from those interviews must be bifurcated from the criminal investigation in order to avoid contamination of the evidentiary record in the criminal case.” The DOJ also took issue with the 48-hour rule, because it delayed statements from officers and their completion of use of force reports and thereby defeated “contemporary, accurate data collection” regarding use of force incidents.
Near the end of 2012, the DOJ filed a complaint against the City of Portland, which, consistent with the DOJ’s findings, alleged that the PPB had engaged in a pattern or practice of using excessive force on individuals with actual or perceived mental illness, in violation of the Fourth Amendment to the U.S. Constitution. At the same time, the City and the DOJ asked the Court to approve the parties’ Proposed Settlement Agreement. The Settlement Agreement requires that the PPB review its policies for compelled statements from officers and submit them to the DOJ for review and approval.
Despite this provision in the Settlement Agreement, the 48-hour rule remained part of the City’s collective bargaining agreement with the PPA until 2016. In February 2016, the DOJ publicly opposed the rule and took the position that officers’ routine completion of use-of-force reports or discussion of the use of force with department officials did not implicate their rights against self-incrimination. The Multnomah County District Attorney’s Office was involved in the “ongoing conversations on this topic.” Finally, in September 2016, the City, under then-Mayor Hales, reached a new collective bargaining agreement with the PPA, agreeing to police pay raises projected to cost $6.8 million a year in exchange, in part, for the elimination of the 48-hour rule.
In March 2017, however, the Multnomah County District Attorney’s office authored a memo, in line with its position articulated in 2012, taking the position that if the City compelled an officer who has used deadly force to complete an administrative interview, there is a high risk that it would confer “transactional immunity” to the officer. (hereinafter “DA’s memo”). See Exhibit A to the City’s proposed ordinance, attached. Transactional immunity means the officer would be completely immunized from criminal prosecution for the incident. This memo recently became public, after the PPB announced its proposed Directive 1010.10, Deadly Force and In-Custody Death Reporting and Investigation Procedures, and the Albina Ministerial Alliance Coalition for Justice and Police Reform issued a press release with concerns about the directive.
The new Directive 1010.10 provides that the PPB shall not compel statements from officers who have used deadly force until after the DA has concluded the criminal investigation, except in exceptional circumstances where information is immediately necessary to protect life or otherwise ensure the safety of the public. A homicide detective may ask the officer involved to give a voluntary statement, but the officer has the right to refuse. Additionally, the officer is not required to complete a written report of the incident.
In sum, under the new policy, officers who have used deadly force can choose to remain entirely silent, including by refusing to write a police report, until after they are cleared of all criminal charges, without negative consequence. Thus, instead of the 48-hour rule, officers who use deadly force now have a much longer time–potentially weeks or months–before they are required to answer questions about the incident.
Despite public opposition to the new rule, Mayor Wheeler has not delayed its implementation. Instead, he introduced an ordinance to address the issue, a copy of which is attached to this memo. The proposed ordinance is two-fold. First, it sets forth a proposed alternative Directive 1010.10 (Exhibit B, attached), which requires an administrative interview of officers who use deadly force within 48 hours of the incident and directs the City Attorney to seek a court ruling to clarify whether the City may adopt that policy without immunizing the involved officers from criminal prosecution. Second, the ordinance provides that while the City awaits that ruling—which could take years or not be allowed at all—the original proposed Directive 1010.10 (Exhibit C, attached), which permits officers to wait until the criminal investigation is over before providing a statement or being interviewed by administrative investigators, will remain in place.
III. ANALYSIS OF THE DA’S MEMO: The Oregon Constitution does not grant
transactional immunity to police officers who are the subject of parallel internal and criminal investigations.
Contrary to the DA’s memo, Oregon law is clear on the issue of officer immunity–it is derivative use immunity, not transactional immunity that applies when an officer is compelled to speak.
Article I, section 12, of the Oregon Constitution, like the Fifth Amendment to the United States Constitution, protects Oregonians from self-incrimination. The DA’s memo asks the City to make a troubling choice in the name of the Oregon Constitution: either forfeit immediate and complete investigations into a police officer’s use of deadly force or forfeit a subsequent prosecution of any police officer who complies with that investigation.
That ultimatum is unnecessary. Rather, an internal investigation that compels testimony may proceed contemporaneously with a criminal investigation. The only limitation on the criminal investigation is that, if the internal investigation compels the officer to speak, the compelled testimony and the evidence derived from it must be excluded from the criminal trial. The Oregon Constitution does provide some limits on the criminal prosecution but it does not, as the DA’s memo threatens, forestall it.
- The District Attorney’s interpretation of Article I, section 12, conflicts with binding case law from the Court of Appeals and the Oregon Department of Justice’s previous position on the issue in the Court of Appeals.
The Oregon Court of Appeals has squarely rejected the idea that Article I, section 12, of the Oregon Constitution grants a police officer transactional immunity when he is compelled to testify as part of an internal investigation. In State v. Beugli, the criminal defendant was an Oregon State Police Trooper accused of a series of crimes, including sexual abuse in the second degree, official misconduct, and harassment. The charges arose out of complaints that the Trooper had inappropriately touched multiple women. The Oregon State Police initiated an internal investigation into the complaints. Internal investigators interviewed the Trooper multiple times pursuant to the internal investigation. During each interview, the investigators advised the Trooper that he was required to answer questions and submit a report about the alleged sexual contact. The Trooper complied.
While the internal investigation was underway, the Oregon State Police initiated a parallel criminal investigation. The criminal investigatory team was given the names of the women who had reported that the Trooper assaulted them, but it was not provided the statements or reports that the Trooper created during the internal investigation.
Four months after the criminal investigation began, the Marion County District Attorney filed an information charging the Trooper with multiple crimes. The Trooper moved to dismiss the information, arguing that he was entitled to full transactional immunity because he was compelled to make statements during the internal investigation. The trial court agreed with the Trooper and dismissed the indictment, concluding that transactional immunity was required.
The Oregon Department of Justice (ODOJ), represented by a now-Supreme Court Justice, appealed. The ODOJ acknowledged that the Trooper was compelled to testify during the internal investigation. But, the ODOJ argued, the remedy for that violation was simply the exclusion of the compelled statements and any evidence derived from it in the criminal case; transactional immunity was not required.
The Court of Appeals agreed with the ODOJ. Specifically, the court held that Article I, section 12, does not and cannot affirmatively grant transactional immunity. Transactional immunity could be guaranteed by statute or contract (say, during plea negotiations with the DA’s office), but never by Article I, section 12. The court wrote:
The right to transactional immunity arises only when the legislature has granted it as a substitute for the right against self-incrimination guaranteed by Article I, section 12, of the Oregon Constitution. In the absence of a legislative decision to grant immunity, the remedy for unconstitutionally compelled testimony is suppression of that testimony and any evidence derived from it.
Because the Trooper was not promised or contractually guaranteed transactional immunity in exchange for his testimony, transactional immunity was not available. Instead, the presumptive Article I, section 12, remedy applied—the compelled statements and the evidence derived from them were excluded from the criminal prosecution.
Other cases from the Oregon Court of Appeals interpreting State v. Soriano are consistent with Beugli. For example, in Graf, the Court of Appeals explained that, under Article I, section 12, a “[d]efendant’s constitutional right is the right not to be compelled to testify against himself, not a right to immunity.” Similarly, in State v. White, the Court of Appeals concluded that, under Soriano, “The authority to immunize a witness derives solely from statute[,]” not from Article I, section 12. And, in 2015, the court reaffirmed that “Article I, section 12, protects only the right to not to be compelled to testify against oneself; it does not, in itself, confer transactional immunity whenever that testimony is given.”
The Oregon Court of Appeals has clearly stated that derivative use immunity, not transactional immunity, is required when an internal investigation compels officer testimony. The City should not, in the name of the Oregon Constitution, sacrifice the public’s need for a timely and independent investigation into police use of deadly force.
- The District Attorney’s interpretation of Soriano is incorrect.
The DA’s argument that Article I, section 12, conveys transactional immunity to a police officer when an internal investigation compels his testimony relies on the Supreme Court’s 1984 decision in Soriano. As a preliminary matter, it is worth noting that the position in the DA’s memo is solely based on that 1984 case; there are no more-recent cases supporting such a position, and, in fact, all of the Oregon appellate cases interpreting Soriano have rejected the DA’s position.
The underlying case in Soriano was a contempt case. The defendants were subpoenaed to testify at a Klamath County Grand Jury hearing. They invoked their rights under the 5th Amendment and Article I, section 12, not to testify. The trial court nevertheless ordered them to testify, and granted them derivative use immunity under two, now amended, Oregon statutes. The defendants still refused to testify, and the trial court held them in contempt.
The defendants appealed, arguing that the Oregon statutes limiting the available immunity to derivative use immunity, rather than transactional immunity, violated Article I, section 12. The Oregon Court of Appeals agreed, and the Oregon Supreme Court adopted the decision of the Court of Appeals as its own.
In so concluding, the court relied on the United States Supreme Court’s admonition that “It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one[.]” That reliance was appropriate, since the question in Soriano was whether an immunity statute must grant transactional immunity in order to support a contempt conviction. That is, the question in Soriano was not whether Article I, section 12, of the Oregon Constitution requires transactional immunity whenever a person’s right against self-incrimination is violated.
The answer to the latter question—the proper remedy for an Article I, section 12, violation—has been resolved and reaffirmed in numerous cases in the Oregon appellate courts. In State v. Vondehn, the Oregon Supreme Court rejected the state’s argument that something less than derivative use is required to remedy an Article I, section 12, violation. Rather, there, the Supreme Court definitely stated that, when the state violates a person’s rights under Article I, section 12, “[t]hat constitutional violation requires suppression of both the answers that [the] defendant gave in response to, and the [physical evidence] that the police identified and seized as a result of, that interrogation.” The remedy for an Article I, section 12, violation is the exclusion of the compelled statements and any evidence derived from those statements from the defendant’s criminal trial.
Finally, the DA’s memo makes much of the court’s statement in Soriano that it is “unrealistic to give a dog a bone and to expect him not to chew on it.” That statement in Soriano was actually a quotation from an earlier Oregon case, State ex rel Johnson v. Woodrich.In Woodrich, the prosecutor in a criminal case compelled testimony via a psychiatrist that the prosecutor hired. And in Soriano, the prosecutor attempted to compel testimony during a Grand Jury. Thus, the court used the analogy to explain that the prosecutor could not fairly “unsee” evidence that its own team compelled.
But in the scenario at issue here, the prosecutor is not the same entity compelling the testimony; the internal investigator, not the prosecutor, has the “bone.” Correctly structured, there would be no evidence for the prosecutor to “unsee.” That is, if the dog does not have a bone, there is no risk that he will chew on it. To the extent that the DA’s memo offers the metaphor to persuade the City, its reliance on it is—at best—unavailing.
This analysis reveals that the Mayor’s proposal to seek permission from a court before implementing its proposed Directive 1010.10 (Exhibit B, attached, which requires officers to submit to administrative interviews before any criminal investigation is over) is unnecessary and will unreasonably delay implementation of a critical police accountability policy. The City has a choice of routes it can legally pursue to maintain the integrity of the administrative and criminal investigations, which are explored in the next section.
- PROPOSED SOLUTIONS: Separate investigations are the standard and should be
The City has options in structuring a policy that maintains the integrity of both the administrative and the criminal investigations. The City could 1) grant IPR the authority to conduct independent investigations of deadly force incidents; or 2) wall-off IA investigations from the PPB criminal investigation or use an outside agency to conduct the criminal investigation.
Both of these options are intended to create a barrier between the administrative and criminal investigations so they run concurrently and do not contaminate the other. As explained above, the rule in Oregon is derivative use immunity; when an officer is compelled to testify in an administrative proceeding, the prosecutor cannot use the compelled statements or any evidence obtained as result of the compelled statements in the criminal prosecution. In other words, the criminal investigation must be entirely independent from the administrative investigation. This is not an uncommon arrangement—federal law provides derivative use immunity for officers who give compelled statements upon threat of termination.
The seminal case establishing the rule of immunity for compelled testimony was Garrity v. New Jersey. That case held that “protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of [termination].” Later cases clarified the rule. From these cases evolved what is now known as a “Garrity Warning.” A Garrity Warning advises officers of their rights when they are compelled to speak and the consequences of any voluntary statement. Based on this long-standing legal standard, many law enforcement agencies have developed practical ways to facilitate successful parallel investigations, as explained below.
- Have IPR conduct the parallel administrative investigation.
It is the NLG’s position that investigations of PPB deadly force incidents should be conducted by IPR. This would serve the dual purposes of walling off the administrative investigation from the criminal investigation and increasing public trust in police accountability. The perceived barriers to giving IPR this authority that have been raised in the past are surmountable and do not outweigh its value and benefits.
One such perceived barrier is that IPR does not have authority to compel officer testimony. This is not true. The City can require the Police Commissioner or Chief to administer the Garrity warning and instruct the officer to answer all IPR’s questions under threat of termination. This is precisely how the City of Minneapolis handles this situation. Moreover, Portland’s City Code already provides:
A Bureau employee shall attend investigative interviews conducted by IPR, cooperate with and answer questions asked by IPR during an administrative investigation of a member conducted by IPR. If an employee refuses to attend an investigative interview after being notified to do so by IPR or refuses to answer a question or questions asked by IPR during an investigative interview, the Police Chief or Police Commissioner shall direct the employee to attend the interview and answer the question or questions asked.
Another perceived barrier is the fact that IA has more resources, expertise, and investigators than IPR. This barrier can be overcome by diverting funds from (and sharing certain resources, like training from experienced investigators, between) Internal Affairs to IPR.
The NLG recognizes that this course of action will require changes to City Code, a potential minor change to the PPA collective bargaining agreement, and a restructuring of the City’s funding and resources for investigations of police misconduct. Considering the reality that some of these changes will take time, the NLG proposes the City implement the protocol in the next section until these changes can be made.
- Have the Portland Police Bureau or an outside agency continue to conduct the parallel administrative investigation independently of the criminal investigation.
As the DOJ recommended five years ago in its Findings Letter, a criminal prosecution of an officer can be successful where an administrative investigation is already underway, so long as the criminal investigation is not contaminated by compelled statements obtained during the administrative investigation. To accomplish this, the IA administrative interviews compelling statements of an officer and all information flowing from those interviews should be bifurcated from the criminal investigation.
Adequate protections are already in place, since parallel criminal and administrative investigations are standard practice for local, state, and federal governments. For example, as the DA’s memo notes,
the criminal investigative team must now be segregated from the internal administrative investigation team and no information that the internal administrative investigation team collects much reach any personnel that will have contact with the criminal investigation team. For example, the involved agency’s Police Chief should not know the nature or content of the compelled statements since the Police Chief would have contact with the criminal investigation team. It is important to note that this is already the current practice of police shooting investigations in Multnomah County.
And the Use of Force Directive currently provides that, “all personnel involved in the administrative review shall keep information garnered from the Professional Standards Division interview strictly confidential, nor permitting disclosure of any such information or its fruits to the criminal investigation.” Further, a current directive also requires “involved and witness members not to discuss the incident,” which reduces the risk that compelled statements will contaminate the concurrent criminal investigation.
Other municipalities have pursued two general models of bifurcated investigations. In some cities, bifurcated investigations are successfully accomplished within the police agency, and, in others, the city utilizes an outside agency.
One example of the former is Eugene, Oregon’s system. While the investigators for the criminal investigation are employed by the bureau, Eugene’s policy provides that no administratively coerced statements will be provided to the criminal investigators. It appears that the City of Portland’s current policies are consistent with this model.
One example of the latter is the protocol in Wisconsin. The Wisconsin DOJ leads criminal investigations of officer-involved deaths and then presents findings to the DA. Thus, no investigators employed by the same agency as the involved officer are part of the criminal investigation. This allows the criminal investigation to proceed without any concern that it will be contaminated by compelled statements or evidence obtained through them.
Ultimately, it is important to recognize that parallel criminal and administrative investigations occur regularly at all levels of government. While an outside agency creates a clearer and stronger barrier between the two investigations, properly separated internal investigations can maintain the integrity of the criminal investigation.
As explained above, transactional immunity is not required by Oregon law. It would be a disservice to the public and a threat to justice if the City waits for a court opinion on this issue before implementing a policy to hold officers administratively accountable. While the NLG does not believe that a court ruling on transactional immunity is necessary, it understands the City’s desire to feel confident in its approach.
Therefore, while the City is awaiting a ruling from the court, it should immediately implement a directive similar to proposed 1010.10 (Exhibit B) but with the requirement that officers give a statement or undergo an administrative interview within 24 hours, which is more time than it already requires of witness officers. As the DOJ pointed out in 2012, delaying officer statements defeats “contemporary, accurate data collection.” It also provides the opportunity for officers to prepare coached statements after consulting with their attorney and union representative. Neither of these serve the interests of accountability and justice. We urge the City to be rid of the 48-hour rule for good!
Compelling the officer’s statement in the context of a bifurcated, parallel investigation is clearly permissible under Oregon law, and outweighs the risks (and potential benefits) of approaches that attempt not to do so. The NLG recommends the City take this course, starting with policies and procedures that ensure separate administrative and criminal investigations, with a plan to transfer the administrative investigation piece to IPR as soon as possible.