Get Involved!

Hey NLG members!

Wondering what your other chapter members are working on, or how you can get involved with their work? You’re in luck! We’ll be convening our second annual Get Involved; Stay Connected meeting at Cider Riot on July 31, 2018. Check out the flier below!

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Support for Oregon State Bar’s Publication of Statements Condemning Racism and White Nationalism

Dear Board of Governors,

The Portland Chapter of the National Lawyers Guild expresses full and unequivocal support for the condemnation of racism and white nationalism expressed in two statements published in the Oregon State Bar’s April 2018 Bar Bulletin. Our chapter is committed to confronting racist ideologies and policies everywhere, from the White House to local fascists and Neo-Nazis who seek to increase their power in Oregon. Furthermore, we are committed to rooting out the structural and institutional racism that permeates our society.

The Bar’s own statement condemned the growth of racism and white nationalism in the United States. Several of Oregon’s Specialty Bar Associations, representing diverse communities within Oregon’s legal profession, authored and signed the second statement. This letter identified President Donald Trump as a source of the expansion and legitimization of racism in the United States and cited to the President’s published statements about people of color and immigrants and his executive order that halted refugee admissions and immigration from seven Muslim-majority countries. The letter stated that it was “in support of” the Bar’s own statement, offered its own analysis of the issue, and was endorsed separately by seven different voluntary bar associations.

The Bar Bulletin solicits articles from attorneys and non-attorneys “on a wide variety of subjects, and favor such topics as access to justice, legal funding, judicial independence, diversity in the profession, professionalism and future trends.”[1] Thus, the Bar Bulletin is not, and cannot be perceived to be, speaking for all members of the Oregon State Bar. This is especially the case with regard to statements specifically signed by other, voluntary bar associations in the state. As a result, the Specialty Bar Associations’ statement does not impinge the First Amendment rights of the bantam group of attorneys who claimed to take offense. See Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032, 1038 (9th Cir. 1999) (upholding student fee funding for a campus organization in part because the organization did not, and was not perceived to be, speaking for all students).

We are therefore appalled that, in response to less than 20 attorneys who have complained, the Board of Governors has refunded bar dues attributable to the publication of the Specialty Bar Associations’ statement. This small group’s demand for the return of their entire annual dues and threatening of legal action is outrageous. We are concerned their actions will ultimately chill efforts to speak out on important issues facing our profession, including access to justice and the rule of law, at a time when such efforts are most necessary.

It is well-established that the regulatory function of a state bar justifies compelled membership.  Morrow v. State Bar, 188 F.3d 1174, 1177 (9th Cir. 1999) (citing Lathrop v. Donohue, 367 U.S. 820 (1961)). Moreover, under the Supreme Court’s decision in Keller v. State Bar of California, the use of mandatory state bar dues does not violate the First Amendment rights of its members if “the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or ‘improving the quality of the legal service available to the people of the State.’” 496 U.S. 1, 14 (1990). This “germaneness doctrine . . . does not silence organizational speech; rather, it requires only that ideological activities not germane to an organization’s purpose be funded through sources other than compulsory fees.” Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032, 1037 (9th Cir. 1999) (emphasis supplied). Thus, “[w]hat what Keller found objectionable was not political activity but partisan political activity as well as ideological campaigns unrelated to the bar’s purpose.” Gardner v. State Bar, 284 F.3d 1040, 1043 (9th Cir. 2002) (emphasis supplied).

According to its by-laws, the Oregon State Bar acts to “to serve justice by promoting respect for the rule of law, by improving the quality of legal services and by increasing access to justice.”[2] Toward that end, the Bar serves several functions, including: 1) promoting high standards of honor, integrity, professional conduct, professional competence, learning and public service among the members of the legal profession; 2) seeking to ensure the fair administration of justice for all; 3) helping lawyers serve a diverse community and 4) advocating for access to justice.”[3]

The statements in the April 2018 Bar Bulletin — both from the Bar itself and the Specialty Bar Associations — are ideological in their condemnation of white nationalism and violence; this is entirely germane to the Bar’s stated purposes. To the extent the Specialty Bar Associations mentioned Trump by name, that viewpoint helps all lawyers better understand how the people most directly affected by the President’s behavior perceive it. Such understanding improves the quality of legal services that we provide in a diverse community.

In the April 2018 Bar Bulletin, the Oregon State Bar proclaimed, “we are intent on standing in support and solidarity with those historically marginalized underrepresented and vulnerable communities who feel voiceless within the Oregon legal system.”[4] Sadly, the Board of Governors’ decision to refund the dues attributable to the publication of the Specialty Bar Associations’ statement has reneged on this commitment.

For a Better World,

National Lawyers Guild

Portland, Oregon Chapter

[1] Oregon State Bar Bulletin, “Be an Author,” April 2018 at 17.

[2] Oregon State Bar Bylaws, Article 1.2, available at: https://www.osbar.org/_docs/rulesregs/bylaws.pdf.

[3] Id.

[4] Oregon State Bar Bulletin, “Statement on White Nationalism and Normalization of Violence,” April 2018 at 42.

Testimony in Support of Care Not Cops: Mental Health Care Not Policing Campaign

Before the Budget Committee Public Hearing:

The National Lawyers Guild Portland Chapter and the National Lawyers Guild Lewis & Clark Law Student Chapter stand in support of the Care Not Cops: Mental Health Care Not Policing campaign and urge Portland City Council to reject the Mayor’s FY 18-19 Portland Police Bureau proposed budget.

The Mayor’s FY 2018-19 proposed budget represents the further criminalization of unhoused people in the name of “livability”; the implementation of a re-styled broken windows model of “community policing” which disproportionately targets poor communities, Black communities, and other communities of color; and a dangerous, increased investment in the failed practice of using police to respond to people experiencing mental health crises.

The proposed budget includes additional funds for “enhancing” police response to mental health crises—a practice that has proven to be not only inadequate and inappropriate but also inhumane. This further investment in funds is particularly unconscionable in light of the recent police killing of John Elifritz inside a homeless shelter. There is no indication that further funds for the police would improve the situation. A recent review of the police bureau found no difference in arrests between officers with or without Enhanced Crisis Intervention Training. Furthermore, the Mental Health Association of Portland found that the average number of police shootings has stayed the same or increased since the Department of Justice Settlement Agreement.

We support the Care Not Cops campaign’s call to decouple mental health crisis response from policing and instead invest in life-affirming responses and resources, including mental health services, health care, and funding for individuals and organizations that have existing relationships with targeted or vulnerable populations.

A budget is a moral document. Rather than adding 49 sworn officer positions and providing an additional $6 million to the police bureau, we call on City Council to reject the proposed budget, divest these resources from policing and criminalization, and instead invest in our communities. Ensure funding for YouthPass in this budget. Commit to investing in that which can truly bring about health and safety, such as housing for all, food security, mental and physical health care, education, and the creation of living wage jobs.

Letter in Opposition to Ryan Bounds Nomination to Ninth Circuit

Ahead of Ryan Bounds’s hearing before the US Senate Judiciary Committee on May 9th, we sent the following message to Senators Grassley and Feinstein.

RE: Opposition to Ryan Bounds Nomination to Ninth Circuit

Dear Senators Grassley and Feinstein:

Because we can never know what is in a person’s mind, we must rely on their deliberate actions to reveal their true beliefs. Ninth Circuit nominee Ryan Bounds’ calculated actions show that he is firmly clinging to deep-rooted prejudices that make him unfit to serve as an adjudicator of justice.

Ryan Bounds has not earned redemption for his prejudicial actions because he has not reformed his thinking. If Ryan Bounds had changed his thought, he would have shown curiosity about how he has harmed the communities he claims to care for, and apologized unequivocally for that harm. Mr. Bounds didn’t. Rather, Mr. Bounds’ actions in response to the uncovering of his hateful college publications were uncovered by the Alliance for Justice Fn.1—tokenizing marginalized people, dismissing and minimizing his egregious rhetoric, and exaggerating his pro bono affiliations— prove his true regret: publicly recording his abhorrent views before he was savvy enough to recognize the political consequences of such disclosure.

The most obvious evidence of Ryan Bounds’ deep-rooted prejudice is his blatant tokenizing of people of color and other marginalized people by asking them to write letters to prove that he is innocent by association. Mr. Bounds’ supporters conflate discrete experiences with gross generalizations, and erroneously assume that discrimination and racism only occur in individual interactions. Take, for example, the letter written by Mr. Bounds’ African-American friend from college, Kristina Gill. Fn. 2. In this letter, Ms. Gill states “I never saw bias, discrimination, disdain or dislike carried out in his behavior toward others nor in his decision-making.” Or the letter written by Courtney Angeli and David Lat Fn. 3 who say “We know he harbors no such insensitivity or hostility — and we speak as members of the supposedly maligned groups.” How do they know this? We cannot give this testimony much weight, especially considering the speakers’ lack of connection to Portland’s most marginalized communities. Mr. Bounds’ friends’ letters are also problematic because he uses them to trivialize his unacceptable articles. The letter from Ms. Angeli and Mr. Lat refers to such articles as “hyperbolic collegiate musings.” Ms. Gill refers to Mr. Bounds’ writings simply as “conservative.”

In addition, Ryan Bounds’ initial response to the exposure of his disturbing writings was one of dismissiveness and minimization. The subject line of Mr. Bounds’ initial response Fn 4 to the Alliance for Justice Report in an email to his fellow committee members of the Equity, Diversity, and Inclusion Committee of the Multnomah Bar Association reveals the source of his true remorse: “apologies in advance for some embarrassing news.” Here, Mr. Bounds apologizes for the embarrassment of the news itself, not for the matter of which and the people to whom he should be apologizing. And the first line of his email reads: “Being nominated for judicial office is an honor, but it has its downsides-including having the ill-considered, tone-deaf, and mortifyingly insensitive pronouncements of one’s youth unearthed and scrutinized.” Mr. Bounds goes on to call the report an “unpleasant reminder of my errors of nearly a quarter-century ago.” Are we to believe that Mr. Bounds forgot that he harbored racist, misogynistic views? And if so, how are we to believe that he has actually changed those views?

In Ryan Bounds’ subsequent resignation letter, Fn. 5 provided at the request of the MBA Committee, he continues to downplay his egregious rhetoric, calling it “poorly worded and ill-conceived pronouncements of a youth.” He goes on to describe in great detail the MBA Committee’s work, taking credit for projects that span well beyond his participation. In addition to being inaccurate, Mr. Bounds’ MBA Committee membership is not proof that he has changed. It so happens that Mr. Bounds is also a member of the extremely conservative Federalist Society which supports discrimination and white nationalists. For some examples of this group’s discriminatory views, see their article, “The ABA’s Garbled View of Free Speech” Fn. 6 and this Hatewatch article Fn. 7 on the Federalist Society’s debate on the Birthright Citizenship for Children of Illegal Immigrants. How are we to believe that Mr. Bounds’ Federalist Society membership has not influenced his MBA Committee participation?

The Portland Chapter of the National Lawyers Guild believes justice can only be attained when people of color and all other oppressed communities are more than mere afterthoughts. We expect our highest courts to administer justice equitably. Ryan Bounds would like us to believe that racism, sexual assault, anti-labor, and queer violence are excusable so long as one portrays them while they are young and naïve. He would like us to believe that a few people of color speak for all people of color. He would like us to believe that he hasn’t caused harm. We can’t do this without abandoning our values of justice and equity. We firmly oppose Ryan Bounds’ nomination to the 9th Circuit Court of Appeals.

Sincerely,

The Portland Chapter of the National Lawyers Guild

1 AFJ Snap Shot: Ryan Bounds

2 In support of Ryan Bounds: Letter to the editor

3 Ryan Bounds passes muster with those he supposedly maligned: Guest opinion

4 Bounds Email to MBA

5 Bounds Resignation from MBA ED&I

6 The ABA’s Garbled View of Free Speech

7 Hatewatch: INVITED WHITE NATIONALIST TO SPEAK TO FEDERALIST SOCIETY FRIDAY

#Law4thePeople2018 Convention in Portland OR!

#Law4thePeople Convention

SAVE THE DATE!

2018 #Law4thePeople Convention in PORTLAND, OR! – Benson Hotel: October 31 – November 4, 2018

Join hundreds of legal professionals, scholars and activists for five days of interactive CLEs, workshops, and panels by members of the oldest and most progressive public-interest bar association in the country! You don’t want to miss this convention!

More details coming soon… In the meantime, check out videos, photos, and the brochure from #Law4thePeople 2017.

https://www.nlg.org/convention/

 

The true cost of the convention is hundreds of dollars per person. However, like the NLG‘s membership fees, convention registration rates are sliding-scale suggested amounts. No one is turned away for lack of funds. Please contribute whatever you can so that we may continue providing conventions that are affordable for all. Your support keeps the Guild alive—thank you!

National Lawyers Guild National Office

132 Nassau Street, Rm. 922
New York, NY 10038
United States

GET INVOLVED; STAY CONNECTED

NATIONAL LAWYERS GUILD PORTLAND, OREGON CHAPTER PRESENTS:

GET INVOLVED; STAY CONNECTED

ARE YOU A NEW NLG MEMBER LOOKING FOR A WAY TO GET MORE INVOLVED IN THE WORK?
ARE YOU A LONG-TIME NLG MEMBER WHO WANTS TO REENGAGE WITH THE WORK OR STAY CONNECTED WITH OTHER MEMBERS?
COME TO THE NLG’S FALL EVENT TO LEARN ABOUT THE CURRENT STATUS OF THE MAJOR NLG PROJECTS IN PORTLAND, WHO IS DOING WHAT, AND HOW YOU CAN HELP OUT!

Thursday, September 28, 2017

6:00-7:30pm

O’Connor’s Vault, 7850 SW Capitol Hwy

Get updated on Portland NLG’s protester support, legal observing, police accountability, immigration support, international issues, housing/houselessness work, convention planning, and more!

CHILDCARE PROVIDED.

Some food provided. No host bar. RSVP: kristenachambers@gmail.com

Get involved Flyer (002)

NLG Position on Officer Compelled Testimony in response to Multnomah County DA Memo

National Lawyers Guild

Portland, Oregon Chapter

3519 NE 15th Ave #155

Portland, Oregon 97212

 

MEMORANDUM

 

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

IPR DIRECTOR

MULTNOMAH COUNTY DISTRICT ATTORNEY

OREGON DEPARTMENT OF JUSTICE

 

RE:             RESPONSE TO THE CITY’S COMPELLED OFFICER TESTIMONY

PROPOSAL

 

  1.   INTRODUCTION

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.

 

  1.   BACKGROUND

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.

 

 

  1.  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.

 

  1.   PROPOSED SOLUTIONS: Separate investigations are the standard and should be

implemented.

 

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.

 

  1.  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.

 

  1. 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.

 

  1.   CONCLUSION

 

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.