Multnomah County Prosecutors Remain Tied to a “48-Hour Rule” that Prevents Cops From Making Compelled Statements

The battle over the 48-hour rule may not be over. Prosecutors believe they probably cannot prosecute a cop who has been compelled to make statements to internal investigators.

Portland Police arrest a protester on Feb. 20, 2017. (Diego G Diaz)

When Portland City Council voted to eliminate the "48-Hour Rule" and demanded officers provide statements in the immediate aftermath of officer-involved shootings, it seemed a longstanding divide between the city and criminal justice reformers had finally been bridged.

But new records indicate the battle over police testimony is not over.

On April 18, a Multnomah County prosecutor wrote a letter declining to bring a case against a Portland Police Sergeant Erin Smith, who was accused of threatening to improperly arrest a man for filming police. The letter indicates the District Attorney's Office believes it probably cannot prosecute a cop who has been compelled to make statements to internal investigators.

"This is because at a minimum the effect of compelling an officer to make a statement during an administrative investigation results in use and derivative use immunity," wrote senior deputy district attorney Amity Girt.

The argument reflects MCDA's position as laid out in a memo drafted by DA Rod Underhill in March, 2017, as well as testimony he presented to city council in July.

"In addition, there is also an argument that the results of Sergeant Smith going through the administrative investigation process and providing compelled statements presents the risk of transactional immunity," Girt wrote, "meaning that Sergeant Smith could be entirely immune from prosecution for any crime stemming from this incident."

An amended letter sent on Thursday removed the language about transactional immunity. The original letter was first published in a Medium post analyzing Girt's decision not to move forward with the case.

The problem stems from disagreement over whether the constitution requires internal investigators to wait—sometimes for months or even years—for a criminal case to conclude before starting an administrative review related to potential policy violations.

Delays in interviews stand in direct opposition to best practices for reviewing alleged police misconduct. Some advocates say they don't care that a criminal trial would be sabotaged, because officers are so rarely indicted and even more rarely convicted. Administrative repercussions would often be more swift and more likely.

The question is newly relevant after Portland police shot and killed a man this month in a homeless shelter near downtown. The seven officers who fired their guns two weeks ago have already been interviewed by investigators within the Portland Police Bureau.

When asked by WW tonight if he thought compelled statements could be used by prosecutors during a criminal trial, Underhill answered: "Simply put, no, if the statement is compelled."

If a police officer is suspected of breaking the law, it is Portland Police Bureau policy to pursue the criminal and administrative investigations simultaneously.

Underhill's statements and his senior deputy's letter declining to prosecute an officer strongly suggests that compelling officer testimony could get in the way of a criminal trial, though compelled testimony alone may not sabotage the prosecution entirely.

It's unclear who is right: the city or the district attorney.

A judge could make a final ruling on the matter—but that would likely only come if a police officer was convicted of a crime after giving compelled testimony.

And, so far, MCDA has not brought such a case to court.

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