Ted Wheeler takes on DA over police accountability

Mayor introduced ordinance allowing legal dispute with District Attorney Rod Underhill

Portland Mayor Ted Wheeler, March 28, 2017, (KOIN)
Portland Mayor Ted Wheeler, March 28, 2017, (KOIN)

PORTLAND, Ore. (Portland Tribune) — Trying to rescue a campaign pledge, Mayor Ted Wheeler wants to take the city’s police accountability system to court.

Battling a legal interpretation from Multnomah County District Attorney Rod Underhill, Wheeler has introduced a city ordinance that would allow officers to promptly interview police following fatal shootings. It would then be sent to a court for constitutional review.

The Portland Tribune is a media partner with KOIN 6 News

The issue of when an officer’s statement must be given following a shooting is contentious in Portland law enforcement and police accountability circles, and the city Independent Police Review office and Underhill have issued dueling legal opinions on whether prompt mandatory interviews are constitutional.

Wheeler campaigned on eliminating a part of the Portland police contract that blocked interviews of officers from taking place within 48 hours. His predecessor, Charlie Hales, beat him to the punch by negotiating a contract that took out the rule.

But the ensuing effort to take has led to a vociferous behind-the-scenes debate in local law enforcement, and Underhill’s memo, which in turn caused Police Chief Mike Marshman to issue a rule saying criminal investigations must be done before any disciplinary interview.

Police accountability activists say Underhill’s stance and Marshman’s proposal would gut the city’s system of accountability, as they say prompt statements are less likely to be skewed to avoid discipline. Underhill’s office and some police, however, say making such interviews mandatory threatens officer’s right under the U.S. Constitutional to not give statements that could be incriminating.

Here’s the statement issued by Wheeler’s office Friday morning:

Today Mayor Ted Wheeler will file an ordinance to be brought in front of City Council to preserve the elimination of the “48-Hour Rule.” The ordinance details investigative procedures to be used in an employment investigation of an officer involved in the use of deadly force. Those procedures include a compelled interview of the involved officer within 48 hours of the incident, as well as assurances that the employment investigation can be effectively walled off from the criminal investigation. Finally, the ordinance asks for Court review to ensure investigations are properly conducted under the Oregon Constitution.

“I oppose the 48-Hour Rule. Officers who wrongly use deadly force should no longer wear a badge,” said Wheeler. “The previous Council paid a steep price to eliminate the rule and I want it gone forever.”

Multnomah County District Attorney Rod Underhill shown in an interview with KOIN in 2013.
Multnomah County District Attorney Rod Underhill shown in an interview with KOIN in 2013.

The latest chapter in the fight to ensure thorough and timely employment investigations of officers who used deadly force involves a March memo from Multnomah County District Attorney, laying out his legal reasoning that an Oregon Supreme Court Decision, State v. Soriano (1982), prevents compelled interviews. The DA’s interpretation was later backed by an Oregon Department of Justice memo, which acknowledged grey areas in the law remain.

“The DA’s interpretation of the law is the best we have at this time, but I am not convinced a case from 1982, which did not deal with the question of concurrent employment and criminal investigations, should be the final word on issues critical to police accountability and public trust today,” said Wheeler.

Employment investigations are a powerful tool to ensure bad actors are held to account. Criminal prosecutions of officers involved in the use of deadly force are rare, and convictions even more so. However, the City has a responsibility to be mindful of taking any action or implementing any policy which might interfere with the Multnomah County DA’s ability to hold a police officer responsible for criminal behavior.

The ordinance will come before City Council on August 3. If approved, it will take effect upon entry of a final judgment and conclusion of subsequent appeals, if any, by Oregon courts. Mayor Wheeler continues to actively pursue additional options to ensure interviews are conducted within 48 hours.