Despite City Hall Efforts, The 48-Hour Rule Is Back—And Stronger Than Ever

The rule allowed cops to wait two days after shooting a suspect before making a statement.

Mayor Ted Wheeler talks to police while taunted by protesters on April 29, 2017. (Joe Michael Riedl)

Former Mayor Charlie Hales' capstone accomplishment was striking the 48-hour rule from the city's contract with the Portland police union: a rule that allowed officers who killed someone while on duty to consult with their attorneys for two days before making a statement about the shooting.

Now it seems the achievement has been reversed.

Mayor Ted Wheeler said in a statement Thursday that the Multnomah County District Attorney has determined that it can't prosecute cases in which the city compelled an officer to give their account of a shooting immediately after it happens.

The DA issued a memorandum in March that argued forcing officers to make a statement would either grant them immunity from prosecution or violate their "right to remain silent" under the Oregon Constitution. The Oregonian first reported on the existence of the memo.

Former Mayor Hales struck the 48-hour rule from the Portland Police Association contract on his second go-around of negotiations, just before his term ended. The City Council approved the four-year contract in October in the face of significant community protests that the deal didn't ensure enough reforms. (Commissioners Amanda Fritz and Nick Fish voted for it; Dan Saltzman was observing Yom Kippur that day and was not in attendance. Chloe Eudaly and Wheeler had yet to join the Council.)

After the contract was approved, the city operated under a policy mandating officers give their version of events as soon as possible after they use deadly force, but since the DA's memo, has changed course, The Oregonian reported.

Wheeler said he still supports revoking the 48-hour rule, and his office will evaluate its options to mandate speedy testimony in the wake of an officer-involved shooting. He added in his statement that "this determination obviously complicates the City's current policy of compelling a statement in the immediate aftermath of an incident."

Portland Police Association President Daryl Turner was not immediately available for comment.

Advocates, including the city's independent Community Oversight Advisory Board, have long fought the 48-hour rule. They argue that an officer's memory of a shooting will never be as accurate as in the hours just after it happens, and that two days to consult with lawyers allows a bad actor to construct a justification.

Constanin Severe, director of the Independent Police Review, said in a memo last week that the heart of the issue is whether or not the city can conduct an administrative investigation of a use of force and keep it separate from the criminal investigation.

If not, he says, Portland is in danger of slipping back to a past when internal investigations of shootings could take more than a year to close.

"If there is a situation in which the officer has engaged in a criminal act, we want that officer held accountable and we don't want the administrative investigation to get in the way of the criminal investigation," Severe said. "(But) if an officer engages in a use of force, particularly a deadly use of force, the public expects the Police Bureau to use its resources to do an investigation as quickly as possible. I don't think it's reasonable to ask the public to wait more than a year."

Severe said the city is in a tough position if the DA won't consider allowing the administrative investigation to go on while it's pursuing criminal charges. The mayor's options are limited.

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