New Portland Police Oversight Board, Could be Strongest in the Nation and Create a National Model

Photograph by Nathaniel St. Clair

In the Black Lives Matter uprising of summer 2020, no city was more nationally prominent than Portland. Nightly protests drew thousands to the blocks around police headquarters, city hall and the federal courthouse. Donald Trump called Portland “a beehive of anarchists” and dispatched federal troops to the city, only fueling protest numbers. Attorney General Bill Barr designated Portland, along with Seattle and New York, as “anarchist jurisdictions.”

Through the protests, Portland police engaged protesters with batons, rubber bullets, other impact weapons and tear gas. Over 6,000 excessive force complaints were filed with the city. The visible brutality against largely peaceful demonstrators inflamed public opinion against the cops. Advocates for police accountability, long frustrated in their efforts by a oversight process that almost uniformly cleared police of brutality complaints, knew this was their moment. They rapidly assembled an effort to place a measure for a police oversight board with real teeth on the November ballot.

Former City Commissioner Jo Ann Hardesty spearheaded the effort. Hardesty has long been concerned about horrifying and unpunished incidents of police brutality in her African-American community. She took the proposed measure to City Council, which unanimously put it on the ballot.  With broad community backing from political leaders, citizen groups and local media, Measure 26-217 secured an overwhelming victory with 82% of the vote. What they passed what could be the strongest police oversight system in the nation, and a model for other jurisdictions.

“Capturing the moment is how you do politics,” says Jason Kafoury, whose Kafoury & McDougal law firm has won the first, third and fifth largest verdicts in Portland police excessive force cases. “It was a brilliant moment of Black Lives Matter and police excessive force in Portland and the community coming together, and we won. I think this is by far the strongest, best example of an independent citizen review board in the country. Assuming we get it implemented properly.”

Passage kicked off a process aimed at having the new citizen oversight board up and running by the end of 2024. In April, City Council appointed a 20-member Police Accountability Commission to fill out the details in the barebones plan passed by voters, including the organizational details and enabling codes.

Reform advocates were driven to the ballot by the city’s history of police brutality and a review system which routinely supported the police. The Oregonian, spurred by the BLM protests, published an investigation Aug. 15, 2020, entitled, “Shots fired: Deadly Portland police encounters reveal troubling pattern.” The newspaper reviewed 40 fatal police shootings since 2003. Though Black people make up only 8% of Portland’s population, 11 of those killed, or 28%, were Black. At least half suffered from mental illness. “And none of the 65 officers who pulled a trigger were indicted by a grand jury or ultimately disciplined,” reported The Oregonian.

The Police Bureau’s record of using excessive force on people with mental illness drew federal scrutiny. “The 2006 death of James Chasse, Jr., drew great public attention. Chasse, who suffered from mental illness, committed a trivial infraction, fled the police, and died of injuries suffered during his arrest.” The case was the subject of a 2019 movie, Alien Boy, named after a 1979 song written about Chasse by Portland punk rock icon and Kurt Cobain’s “godfather of grunge,” Greg Sage of the Wipers. In the review of the case, the officers were found guilty of misconduct for failing to report Chasse’s injuries, but had that misconduct overturned. The family did receive $1.6 million from the city in a  settlement. The city agreed to a Justice Department oversight order in 2012. At that time, Amanda Marshall, U.S. attorney for Oregon, said, “What we have found is that the Portland Police Bureau does in fact engage in a practice of excessive force, specifically in dealing with people who suffer from mental illness or who are experiencing a mental health crisis . . . ”

As a result of the summer 2020 police violence, the Justice Department ruled Portland was out of compliance with the order. The city and the department agreed to a revised order this February.

The Independent Police Review, the former system for examining complaints “is not truly independent and really is not valued as a way to hold police accountable,” Hardesty told The Oregonian in the run-up to the election. “The fact we have an oversight system that actually refuses to do its job is the reason why this ballot measure is so necessary.”

Added the commissioner, “Flaws identified by the community over and over again have not been resolved. That’s why we need a brand new system. We cannot take a system where police are the only people who can investigate police conduct and make it a community oversight system. That’s why we have to start from scratch. And that’s why this ballot measure is so key to starting to process of holding police accountable for inappropriate behavior.”

Kafoury notes that most investigations have been conducted by the Police Bureau’s Internal Affairs Division, and results are not available to the public. But as lawyers who have handled dozens of brutality complaints over the years, his firm has been able to see them. “And that’s what made me so outraged. Because I realize that all this stuff is a cover-up, 99% of the time ruled unsubstantiated and vindicated. I had this insider perspective where I could see the guts of what would happen.”

Willamette Week, the local weekly, called out the ineffectiveness of Portland police oversight in its editorial endorsing the measure. “Are you a Portland police officer who just hit somebody with a baton? If so, you probably love the city’s current police oversight system, which has resulted in just four cops going to arbitration after losing their jobs for misconduct in the past decade. (All four got their jobs back.)”

The Oregonian, in its endorsement, wrote, “If there’s one message that has come through loud and clear all year, it’s that Portlanders want true accountability for police.” That followed a previous editorial calling out “decades of earned mistrust, a history of excessive force and a lack of accountability for officer misconduct . . . “

The measure drew support from many political leaders including Portland Mayor Ted Wheeler, then Oregon House Speaker and newly elected Oregon Governor Tina Kotek, and Multnomah County Chair Deborah Kafoury. U.S. Representative Earl Blumenauer, who represents the east Portland district where most of the Portland Black community lives, said in support, “Not only has the Black community been asking for this reform for more than 30 years, but almost daily we are seeing the consequences of a broken system.”

A broad range of community organizations backed it, including the NAACP, Sierra Club, NARAL, League of Women Voters, Latino Network, Portland Gray Panthers, Physicians for Social Responsibility. The measure drew union support from Service Employees International Union State Council, Portland Association of Teachers, and Oregon Federation of Nurses & Health Professionals. Faith community support came from Ecumenical Ministries of Oregon and the Albina Ministerial Alliance, representing Black community faith leaders.

Measure advocates had expected the Portland Police Association, the politically potent police union that has long stood in the way of accountability efforts, to campaign against the measure. They were surprised when the union largely stepped back, likely sensing a weak political position after the backlash against the brutality with which police met the summer protests. But what the union could not win at the ballot, they hope to in court. The union has claimed the measure violates 14th amendment due process guarantees, and is expected to file a lawsuit. That represents the major hurdle to be overcome before the new review board can be fully implemented.

Assuming the oversight board can pass that hurdle, it will have three key powers to ensure police accountability.

“There are three legs to this,” Kafoury says. “It has to be truly independent. It doesn’t have the cops doing the investigations. It has to have the budget to do the investigations.  It’s got to have the ability to discipline up to termination the officers. If it doesn’t have one of those three legs it becomes pretty much impotent.”

In drafting the measure, advocates surveyed police oversight boards across the U.S. The National Association for Civilian Oversight of Law Enforcement (NACOLE) estimates around 200 exist across the country. NACOLE members include 46 boards from cities in the Major Cities Chiefs Association.  Creation of such boards has been advocated since the 1920s, and the first appeared in 1948, while New York and Philadelphia attempted ill-fated efforts in the 1960s. Most boards have emerged since 1990, but serious questions swirl around them. There is “limited empirical evidence demonstrating their effectiveness,” noted the U.S. Department of Justice in a 2018 report, Civilian Oversight of the Police in Major Cities. Minneapolis had a citizen oversight board 25 years before Officer Derek Chauvin killed George Floyd.

Kafoury says, “From what I’ve seen around the country, and this was a couple of years ago, there were no citizen review boards that had the budget, the independence, the power to properly investigate, which means the ability to compel testimony and actually subpoena records and get the cops to testify, and the ability to discipline up to termination. That’s why I do think what we passed is a model for the rest of the country.”

Hardesty agrees. “I believe this will be a national model.”

Campaign Zero, a national effort identifying and promoting best practices to reduce police violence, called the measure “A National Model for Police Accountability” in the Portland voters pamphlet statement.

Over the past five years, we’ve examined data on policing practices across the country to identify effective solutions to end police violence and keep communities safe . . . The model proposed here is the strongest in the nation. It is structurally independent of the Police Bureau and removed from the direct control of politicians. It has the necessary powers and resources to conduct thorough investigations and it is designed to have the power to enact discipline and change policy.

Beyond handling complaints and investigating deaths at the hands of police, the Portland board will also report to City Council annually to recommend policy revisions. Police reform advocates call out the ability to make such systemic recommendations as vital.

The old review process included a panel heavy with representatives of the Police Bureau. The new board will bar members who work or have worked in law enforcement, or their immediate families. The measure also specifies members must be appointed “from diverse communities, particularly those with lived experience of systemic racism and those who have experienced mental illness, addiction, or alcoholism.” Members will be appointed by City Council, a more democratic contrast to many cities where mayors select members.

One of the key points of Measure 26-217, the reason advocates made it a ballot measure rather than a city code revision, is that the measure enshrines the oversight board in the city charter, the constitution of the city. So the only way it can be changed or repealed is by a vote of the people, insulating it from political interference. Another provision along those lines is ballot language specifying that the board will receive funding no less than five percent of the Police Bureau budget. That protects it from defunding by politicians unhappy with its work.

After the election, the city faced a potential obstacle. The police union contract might have prevented it from creating the oversight board without union approval. The Oregon Legislature passed a bill allowing the creation of police oversight bodies without having to bargain with unions. The bill also partially dealt with the issue of arbitration under union contracts. An arbitrator will not be able to reduce discipline ordered against officers if it accords with a disciple guide negotiated with the union. But the revised law still allows an arbitrator to throw out the oversight board’s overall judgement if they conclude the office has not violated policy. A disappointment to reform advocates. As noted above, this has taken place repeatedly. The union has to agree to the selection of an arbitrator, which tilts the process heavily in the cops’ favor.

“If the arbitrator doesn’t agree with the ruling, this could keep happening,” notes Dan Handelman of Portland Copwatch, a relentless advocate for police accountability. (Handelman is also one of the the 20 members on the transition commission, but was speaking in his Copwatch role.) “Usually the reason a case is overturned in arbitration is because the arbitrator disagrees that the officer violated a policy.”

The investigative powers the new oversight board will be able to make much stronger cases that the officer has indeed violated policy, but it remains uncertain whether this will be enough.

Handelman also notes that as public employees, police officers will also have a right to an employee-employer due process hearing to mitigate the outcome. He calls out one other potential weakness in the system. State law provides public employees with a measure of privacy. So the public is not guaranteed to know names of officers who have been investigated, and whether discipline is enacted may not be fully transparent to the board.

“You can’t just wave a magic wand and say it will work,” Handelman says.

Despite those big ifs, if the Portland oversight board can survive the police union court challenge, it will represent a major step forward. In the decades-long uphill struggle to make police accountable, the Portland model is setting the pace for the nation.