Multnomah D.A. quietly imposes significant policy change concerning police use-of-force investigations

Police accountability advocates in Portland, Oregon celebrated a rare victory last October when former mayor Charlie Hales renegotiated the city’s contract with the Portland police union. Though many details of the negotiation were criticized, Hales did succeed in getting the union to strikethe long-held, controversial 48-hour rule that allowed officers involved in fatal shootings to wait two days before making a statement to internal affairs.

But Hales’s victory was a flash in the pan. On Thursday, current Mayor Ted Wheeler announced that Multnomah County District Attorney Rod Underhill’s office won’t prosecute cases in which an officer was compelled to give their account of a shooting to internal affairs immediately after it happens, according to the Willamette Week. The policy change stems from a memodrafted by Underhill’s office in March that advises the police department not to compel any statements from officers involved in “use of force events” that result in death or serious physical injury until after the criminal investigation has closed — a process that often takes weeks. Underhill’s office concluded that under existing Oregon law, forcing officers to make a statement while the criminal investigation was ongoing would either result in them receiving immunity from prosecution or violate their “right to remain silent” under the Oregon Constitution.

The memo wasn’t made public for months, raising questions about the process used by Underhill’s office to reach this conclusion without any public input.

“As the elected D.A., he should be sensitive to the tensions that exist in Portland between the police and the community,” Alice Lundell, communications director for the Oregon Justice Resource Center told In Justice Today. “We would have liked D.A. Underhill to be more open with his constituents and to have released the memo to the public in March when it was drafted.”

Reform advocates argue that delaying an interview with an officer involved in a fatal shooting may ultimately taint the statement they give. Given a longer time to review the incident and go over it with peers, an officer may be more likely to fabricate parts of their statement or forget critical parts of what happened. Police unions, which generally support the 48-hour rule (which exists in multiple other states), tend to argue that after a traumatic event like a shooting, an officer is more likely to give an inaccurate statement because of the stressful experience if he or she is forced to immediately recount it to internal affairs. The science behind that theory is contested.

Underhill serves a community that is, like many others across the country, at a critical point in police-community relations. Portland police have repeatedly responded to peaceful protests since Trump’s election with riot gear and militarized force, fostering a growing lack of trust between the police force and the community they serve. For years prior to Trump’s election, the police department and criminal justice system more broadly has disproportionately impacted and ensnared black Portlanders. Black people make up just under 6 percent of the county’s population, but they represent 27 percent of the county jail population. The broader community’s apparent hesitance to address the state’s history of state-sanctioned racism, and how that racism reverberates today, has also increased tension.

Amidst these strains on the community, Underhill’s stance on the 48-hour rule—and the fact that his position was seemingly kept from public view for some time — is likely to further dampen the spirits of those pushing for police reform, and engender greater distrust in the local criminal justice system.

“The potential for further damage to relations between the police and the community is very real,” says Lundell. “Portlanders fought hard to end the ‘48-hour rule.”