Mayor Charlie Hales says a federal judge "has lost credibility and standing in terms of being an impartial body" in overseeing Portland's efforts to reform its police bureau, and that another judge should be appointed.
Those potentially inflammatory comments—in the dwindling weeks of Hales' time at the city—came this afternoon, as the Portland City Council voted to fight US District Judge Michael Simon's order [PDF] that the city file a status report on its efforts to improve a failing portion of federally mandated police reforms, and appear before him in late January.
Hales' ire has roots in an October 25 hearing before Simon—a yearly "status conference" the judge holds to make sure that a 2014 settlement between the city and the US Department of Justices over police abuse is on course.
During that lengthy hearing, an audience member, David "Kif" Davis, suggested that a deputy city attorney, Judy Prosper, should "go back to Haiti." Davis has said he was referencing Prosper's work as an attorney for controversial former Haitian President Jean-Bertrand Aristide. For Hales and others, though, the comments came off as an unmistakably discriminatory reference to Prosper being Haitian-American.
Hales, who acts as police commissioner, says Simon had a duty to sanction Davis for the comments, rather than allowing him to continue to speak. Portland City Council signed a letter in early November registering concern about "racist, sexist, and other ad hominem attacks" that took place at the hearing.
The mayor in a conversation with the Mercury this afternoon, went further. He said Simon thanked Davis for his testimony, which Hales called "odious."
"I was so shocked that I didn't have the presence of mind to get up and walk out," Hales said, "which I would have otherwise."
Asked whether another judge should be tapped to mind the settlement agreement, Hales responded "yes."
But in many ways, the mayor's shock is tangential to the judicial order the council voted unanimously to challenge this morning—over the objections of a police watchdog and the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMAC).
A key provision in the city's 2014 settlement with the US Department of Justice over police abuses requires officials to engage the community on required reforms. But as the Mercury reported last month, that engagement effort has lapsed to the point the DOJ has indicated the city might be breaching the agreement.
After the October 25 status conference, Simon ordered Portland to send an update on its efforts to improve things by December 2, and appear before him on January 31 to discuss how it might amend the settlement in order to create a better system for community outreach.
The city says the judge doesn't have the authority.
City Attorney Tracy Reeve points out that the federal case Simon had presided over has been dismissed. The judge's sole remaining authority is to hold yearly status conferences, and to weigh in if the US DOJ says the city has breached its settlement agreement, she says. Other than that, the city believes Simon should have no say in the matter.
"It's not the court's role to monitor the compliance," Reeve said today. "We are working very actively."
Reeve's office will file a challenge to Simon's order before the Ninth Circuit Court of Appeals, she tells the Mercury. In doing so, she hopes to get clarity about how much sway Simon still has over the settlement agreement.
This marks the second time the city's challenged Simon's authority in this case. In 2014, officials appealed to the Ninth Circuit seeking clarification on how much power Simon had over the settlement. The appeal resulted in a settlement, which Reeve acknowledges gives Simon the ability to hold status conferences and call hearings "as the court may otherwise order."
Reeve says that language was not intended to let the judge call Portland officials to account whenever he wants.
One party that has a say in the settlement agreement, the AMAC, implored city council not to challenge Simon's order, worrying it would only further delay police reforms (officials insisted it won't).
"We feel this incident… should not be used to be a setback for the settlement agreement," AMAC member Reverend Doctor LeRoy Haynes testified. "We are in critical and dangerous times. The city of Portland needs confidence that city leadership is not stalling implementation of the settlement agreement."