In the world of Portland police activists, one issue serves as a flashpoint: the 48-hour rule.
It's buried on page 40 of the 60-page labor contract that governs officers with the powerful Portland Police Association union.
"Prior to being interviewed regarding an Internal Affairs Division or Equal Employment Opportunity investigation for any reason which could lead to disciplinary action," the provision reads, "whenever delay in conducting the interview will not jeopardize the successful accomplishment of the investigation or when criminal culpability is not at issue, advance notice shall be given the officer not less than forty-eight (48) hours before the initial interview commences or written reports are required from the officer."
In fewer words, that means officers who use deadly force have at least 48 hours before they have to answer internal investigators' questions.
To be clear, the 48-hour rule has nothing to do with criminal investigations of cops who kill. Like all suspects, they have the right to remain silent. The 48-hour rule pertains only to administrative reviews—the kinds that can lead to discipline or termination.
For years, there's been a steady drumbeat from activists, politicians and police accountability experts, including the U.S. Department of Justice, to abolish the 48-hour notice. The argument is that the rule—an anomaly among big cities—hinders Portland's ability to hold cops accountable for bad decisions.
"The bureau should not be required to wait for two or three days to hear why an officer used deadly force against a citizen," independent consultants to the Portland auditor wrote in January.
Despite those pleas, city officials have not succeeded in giving officers something they want in exchange for ditching the rule. And the police union has succeeded in holding onto the rule by saying forced interviews could have unintended consequences. Specifically, the union has cast doubt on Multnomah County district attorneys' ability to prosecute cops who give compelled testimony in separate, administrative reviews.
The union says this despite assurances otherwise. "A carefully walled off internal affairs statement, even if compelled, would not impair a criminal prosecution," Multnomah County Chief Deputy District Attorney Don Rees told The Oregonian in February.
The police union contract expires in June 2017. And it likely will be up to the next mayor to address the controversial issue.
So when the Portland Police Association announced March 7 it endorsed Jules Bailey in his bid for Portland mayor, the natural question was: Does Bailey support getting rid of the 48-hour rule?
Opponents Ted Wheeler and Sarah Iannarone have said consistently and unequivocally they want to abolish the rule. When first asked the question in early March, Bailey (who says the 48-hour rule did not come up in his endorsement interview with police) did not provide a yes or no answer.
Today, Bailey says he wants to end the rule. He maintains he hasn't changed his position.
"I have been very consistent about the need to address and ultimately end the 48-hour rule," he writes in an email to WW on Wednesday, April 20. "I have also said I want to be careful about how we do it so that we don't get out ahead of the DOJ, and so that we do it in a way that is legal, and in a way that protects our ability to negotiate on other important matters. That's an issue of timing and process, not philosophy.
"Recently, I've met with the police association and with community members, and the two sides are closer together than I think they initially thought. Given that, I've been continuing the conversation, and I'm more convinced than ever there's a path forward to end it sooner than I or anyone else had thought. That's what happens when you bring people together and engage in dialogue, and ensure you aren't alienating people from the conversation, and I think that reflects qualities that Portland wants in a mayor."
Here's a timeline of how Bailey, a Multnomah County commissioner and former state legislator, went from "not yet" to "very soon" on the question.
Date: March 9
Setting: Newspaper interview. WW asks the candidate via email, "Do you support ending the 48-hour rule?"
Bailey declines to give a yes or no answer but provided a written response: "Portland police officers are held to an incredibly high standard, especially during deadly force investigations. We have robust involvement by outside agencies, such as the Multnomah County District Attorney's Office, and robust community dialogue about these events. The Police Bureau also uses communication restriction orders, which prohibit officers from communicating with one another during the investigation. I will strive to bring Portland residents the highest degree of accuracy and accountability when it comes to these investigations. Both the community and the officers deserve full and fair investigations."
Date: March 10
Setting: A forum on social justice moderated by former state Rep. Jo Ann Hardesty and police accountability activist Jason Renaud.
Hardesty: "Are you going to do away with the 48-hour rule?"
Bailey: "I believe we need to work through the DOJ process. It says right in the settlement agreement not to move overly quickly on that and so I think we need to bring all of the stakeholders together and address that. I do believe it needs to be addressed, but as we do that we also need to make sure that we have clear and consistent enforcement."
Hardesty: "What I'm hearing you say is you're going to work with them but it may be the next contract before you're able to make that 48-hour rule disappear."
Bailey: "I'm saying the 48-hour rule needs to be addressed, but I'm not going to get out in front of the DOJ and the feds on that process."
Date: April 4
Setting: WW endorsement interview
Bailey: "With regards to the 48-hour rule, I'm really happy we brought this subject up, because I think it's an important contrast both in style and substance. At a recent forum we had a conversation about the 48-hour rule and part of the challenge of the telephone game that is social media is that I think some of the responses at the forum have been somewhat distorted since that point. I've said consistently I absolutely believe that the 48-hour rule needs to be addressed and I believe that it should be scaled back if not done away with completely. I think what we need to do is have a mayor who understands that we have a rift in our community between our police force and our community and we need to start healing that rift and we have to make sure that as we load the order of changes that need to happen that we make sure we're not jeopardizing things like having independent investigations of police officers, deploying body cameras, making sure that we're addressing racial profiling and getting police officers and community members talking to each other so they're not on both sides. And in fact, I'm not just talking about this, I'm working on in. And I bet you dollars to donuts—and I have an educated reason for saying this—that if you went and sat down with the police association right now to talk about the 48-hour rule you'd find some voices on the other side who could get to a path on a way forward to end it.
WW: We've reported that you supported retaining the rule. Are we wrong?
Bailey: My answer was "not yet."
WW: We came to you before the March 10 social justice forum and asked, "Do you support getting rid of the 48-hour rule?" It was an opportunity to tell us in as many words as you needed what your position was. The response we got did not address the topics you're addressing now. And the response was, essentially, you did not support getting rid of it. Why should we believe your message has been distorted? It sounds like you've changed your message.
Bailey: I think you have to look at what I've said in public. It's been consistent. It's on tape. You can go back and take a look at what I said. What I'm trying to convey is this is more than a black and white issue and that the politically easy thing to do is just to pile on and say, "Yeah absolutely, I'm going to commit to getting it done immediately." What we need to do is have a mayor who understands how complex this issue is and is willing to take a methodical approach to working on it. And I actually think that we can get it done before the next contract negotiation if we have dialogue on it. But alienating and continuing that rift between police officers who are stretched really thin and a community that doesn't have any trust in the police force doesn't help resolve issues it makes matters worse.
WW: Do you want to eliminate it?
Date: April 5
Setting: Forum hosted by Portland Center of Intercultural Organizing
Bailey: "When it comes to police we need to ensure we're hewing the divide between community and police and that we are holding cops accountable and that we're also making sure they have sufficient staffing to be able to get back into community policing so we can rebuild those bridges. We need independent investigations of police. We do need to address and end the 48-hour rule."
Date: April 10
Setting: Publication of "pop quiz" in Street Roots.
Street Roots: Would you abolish the 48-hour rule?
Bailey: "Not yet. We need to address this, but in a way that doesn't jeopardize our ability to prosecute bad cops who have broken the law."
Date: April 11
Setting: Cafe Medium Podcast
Interviewer: You were endorsed by Portland police. What's your stance on that [the 48-hour rule]? And why? A clear answer would be helpful.
Bailey: "This is the challenge of social media in today's age when you're playing telephone in 140 characters and things that you say get massively warped. I want to be very, very clear. I support getting rid of the 48-hour rule. I've always supported getting rid of the 48-hour rule. What I was trying to do at the debate was ensure that people understood that it's not just a simple black and white issue of you can push a button and it goes away. It's very politically easy to say that. But the question I was asked was, "Would you support eliminating it in the very first contract you have as mayor?" I think that's a possibility. In fact, actually, I think we can do that before then. If we sit down with the police association, reopen bargaining, I think we could actually get rid of that sooner than that. But what I wanted folks to understand is that there's a lot that needs to happen around police accountability. We need independent investigation of police officers. We need body cameras. We need stronger anti-racial-profiling laws. We need the ability for citizens to be able to film officers without fear of recrimination. All of those things need to happen. And the risk is, every mayor has come in and said "I'm going to get rid of the 48-hour rule in my very first contract." It's been around for quite a while, years and years and years. And no mayor has yet done it. Charlie talked about doing it, and it didn't happen. Because it's a little bit complicated. If you just eliminate it completely, the Supreme Court has said if you compel an officer to give testimony too quickly in a window that that evidence cannot be used to prosecute that officer because it's evidence given under duress. You want to be able to hold bad apples accountable. I think there are ways that we can get rid of it and still be able to navigate that process, but we have to make sure that as we're changing it we're doing it in a way that passes Constitutional muster and that works with our justice system."
Date: April 18
Setting: City Club of Portland public safety forum.
Bailey: "I've said consistently that the 48-hour rule is an issue that must be addressed and ultimately ended. As we've talked about this issue I've also sought to ensure that I'm being realistic about how complex that issue is in ensuring we have information that can be used when we're holding officers accountable under testimony. I have sat down with the police bureau, I have sat down with the community. I have sat down with the police association. Here's what I believe. I believe that we are going to be able to end the 48-hour rule very soon, and I believe we may even be able to get it done before the next mayor takes office and if it's not done before the next mayor takes office, I will commit to getting it done."