Stalemate over police body cameras continues in Portland

The Portland police union wants officers to be able to review recordings from their own body cameras before writing a report of any kind, before an investigation of any kind or before providing testimony in any force review, criminal investigation or civil or administrative case.

The city of Portland says officers could review the recordings before writing a police report when they don’t use force or if they use nondeadly force, only after they describe what occurred to a supervisor and that statement itself was captured on a body camera.

But if deadly force is used or a person dies in police custody, under the city’s proposal, officers should not have access to any body camera footage “until authorized by the Chief or designee.”

The two drastically different proposals have been submitted to the state Employment Relations Board for an arbitrator to break a stalemate that’s lasted for months and continues to delay the state’s largest police department from equipping its officers with the technology.

And that’s despite the U.S. Justice Department’s order last April that the bureau equip its officers with the cameras as a remedy to meet the requirements of a 2014 settlement agreement that mandated police policy, training and oversight reforms. The judge overseeing the settlement had voiced support for the technology at a hearing nine years ago.

U.S. District Judge Michael H. Simon in late April approved an amendment to the settlement, which requires the city to outfit officers with cameras and adopt an appropriate policy governing their use.

The order came after the police failed to meet key requirements of the settlement, including inappropriate use and management of force during 2020′s racial justice protests, inadequate training and subpar supervision of officers.

The amendment called for the Police Bureau to adopt a body camera program within seven months, which would have been last November, though it acknowledged the city would need to comply with collective bargaining with the police union.

Sgt. Aaron Schmautz, president of the Portland Police Association, argued Friday that “utilizing available evidence, including video, to complete comprehensive reports is consistent with every major agency in the State of Oregon with body cameras, as well as the vast majority of national agencies.”

Schmautz has said most agencies of “any substantial size” in Oregon, including Oregon State Police, the Clackamas and Washington county sheriff’s offices, Eugene, Beaverton, Gresham, Hillsboro, Medford and Bend police departments, allow officers to review their camera video before writing reports.

And 20 of the 22 largest police agencies in the nation allow the same, such as those in New York, Boston, Los Angeles, Seattle, Denver and Detroit.

The union’s proposal adds a clause that officers shall not view recordings that aren’t related to an incident in which they participated or were assigned to, unless authorized by the chief or a designee.

The city has followed guidance from federal Justice Department lawyers, who have urged that officers not be allowed to view the footage before writing a report when deadly force is used. The officers could write a supplemental report after viewing the footage, the Justice Department has recommended.

They say allowing officers to see the video of an encounter would taint the subjective reasoning by officers for why they acted as they did at the time.

Whether an officer acted reasonably “all depends on what’s in the officer’s head at the time” force was used, Jared Hager, an assistant U.S. attorney representing the Justice Department, argued in a city forum in late January 2022.

Just because it may be “common practice” to view the video before police write reports doesn’t mean it’s the best practice, Hager said, particularly when the equipment is now required as a remedy to the Police Bureau’s failure to properly document, review and analyze officer use of force. It simply reflects the strength of their police unions in bargaining, Hager has said.

The Justice Department’s proposal draws from policies used by Baltimore and Atlanta police, Hager said.

The matter now goes to a state arbitrator, which could add six to nine months to the process. Once an arbitrator rules, the Justice Department also has reserved the right to approve or reject any policy, creating the possibility of even more delay if federal lawyers take issue with it and seek a court order.