Judge Michael Simon District Court Response City Writ

Case: 16-73878, 03/15/2017, ID: 10358300, DktEntry: 13, Page 1 of 9
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

_______________________________
In re: CITY OF PORTLAND. No. 16-73878
_________________________ D.C. No. 3:12-cv-02265-SI

District of Oregon,
Portland
CITY OF PORTLAND,
Petitioner, RESPONSE OF
DISTRICT COURT1
v.
UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF
OREGON, PORTLAND,
Respondent,
UNITED STATES OF AMERICA;

et al.,
Real Parties in Interest.

_______________________________
In the underlying case of United States of America v. City of Portland,
Case No. 3:12-cv-02265-SI (D. Or.), the United States filed a complaint for
injunctive relief against the City of Portland (the City), pursuant to the
Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C.
14141. The United States alleged a pattern or practice of unconstitutional
1
The District Court respectfully moves the Ninth Circuit for leave to file this
response one day late.
Page 1 RESPONSE OF DISTRICT COURT
uses of force by officers of the Portland Police Bureau (PPB). On the same
day, the parties also filed a joint motion asking the district court to approve
their Settlement Agreement and conditionally dismiss the action. In
paragraph 178 of their Agreement, the parties agreed to ask the district court
to retain jurisdiction over the case for all purposes until the City has
substantially complied with all provisions of this Agreement and maintain
[sic] substantial compliance with all provisions for one year.
Shortly thereafter, the district court granted the motion of the Portland
Police Association (PPA) to appear as a Defendant-Intervenor. The district
court also allowed the Albina Ministerial Alliance Coalition for Justice and
Police Reform (AMA Coalition) to appear as amicus curiae with certain
participation rights, but not with intervenor status.
The district court held a fairness hearing on February 18-19, 2014,
and thereafter held additional conferences with the parties and allowed
additional legal briefs to be submitted. On August 29, 2014, the district court
signed an Order Entering Settlement Agreement, Conditionally Dismissing
Litigation, and Setting First Annual Settlement-Compliance Hearing. The
City filed a notice of appeal with the Ninth Circuit, which the City later
dismissed after the district court agreed to enter an amended order.

On July 30, 2015, at the request of the parties, the Court signed an
Amended Order Entering Settlement Agreement, Conditionally Dismissing
Litigation, and Setting First Annual Status Conference (Amended Order).
As part of the Amended Order, the district court retained jurisdiction to
enforce the Settlement Agreement upon request of any party and ordered the
parties to appear before the court at annual status conferences to describe the
progress being made toward achieving substantial compliance with the
Settlement and any obstacles or impediments that may be interfering with
that result. The Amended Order further directed that that this civil action be
placed on the Court's inactive docket, other than for the annual status
conferences referenced in this Order or otherwise as may be directed by the
Court, and subject to recall to the active docket should the United States
move to enforce the Settlement Agreement (emphasis added). The district
court held its first annual status conference on October 21, 2015.
The district court held its second annual status conference on
October 25, 2016. Shortly before this conference, the parties filed respective
periodic compliance assessment reports. In its report, the United States noted
that, among other things, the City was in non-compliance with a portion of
the Citys obligations under the Settlement relating to community
engagement and the Community Oversight Advisory Board (COAB) and

significant barriers were noted. The status report filed by the AMA
Coalition reflected similar concerns. According to the status report filed by
AMA Coalition on October 19, 2016, at pages 2-3:
The AMA Coalition is greatly concerned about the

implementation of the community oversight component
of the Settlement Agreement. The COAB got off to a
rocky start. Thirteen members have resigned due to lack
of support from the City and the PPB, lack of response
from the City to the COABs over 50 recommendations,
and unclear expectations regarding the boards role. This
is an alarming number considering the board has 15
members. Many of those who resigned were Council
appointees. . . .
Despite pleas from the AMA Coalition and numerous

meetings on the selection of new members, the City has
not taken action to fill the vacancies. The AMA Coalition
participated in discussions with the City on plans to fill
vacancies left by community-at-large members of the
COAB, but the City did not implement those plans. There
are currently four vacancies on the COAB that the City
Commissioners can fill by appointment, but they have
not done so. As a result of the Citys failure to appoint
replacement members, the COAB lacks a quorum to
carry out its important work.
In both the Citys memorandum and its periodic compliance report, filed
with the district court on October 19, 2016, the City did not dispute the
existence of these problems.
During the second annual status conference, held on October 25,
2016, the district court received presentations from counsel for the parties,
from several parties themselves, and from others associated with the
implementation of the Settlement, at the request of the parties. The district
court also allowed brief comments to be made at the conference by members
of the public, whom the court received as additional amicus curiae.
During the conference, the United States initially requested that the
district court hold an interim status conference after 30 days for the City to
report on its progress in developing a revised plan for the COAB and for the
district court to hold a second interim status conference after 90 days to hear
from the parties regarding any proposed modifications to the Agreement,
pursuant to paragraph 175. After the United States and the City conferred,
both parties requested one week to confer further, which the district court
allowed. The following week, on November 2, 2016, the United States filed
Plaintiffs Post-Status Conference Status Report, stating:
Upon conferral with all parties, the United States requests

that the Court either hold a status conference, or in lieu of
a conference, requests that the City submit to the Court a
written Supplemental Compliance Report by Friday,
December 2, 2016, specifically regarding the steps taken
to achieve compliance with Section IX of the Settlement
Agreement. The United States further requests the Court
hold a status conference on or about Tuesday,
January 31, 2017 for the Parties to report on the
obligations of Paragraph 175 of the Settlement
Agreement and any stipulated modifications.
After receiving a written response from the City, the district court, on
November 10, 2016, granted the alternative request of the United

States. At the request of the United States, the district court ordered
the City to file a supplemental compliance report by December 2,
2016, and set an interim status conference for January 31, 2017.
On December 9, 2016, the City filed with the Ninth Circuit the Citys
pending Petition for Writ of Mandamus, for a Stay of Proceedings, and for
Reassignment on Remand (Petition). Among other things, the City
requested a stay of the interim status conference set for January 31, 2017, so
that the Ninth Circuit may consider the merits of the Citys Petition. On
December 14, 2016, to facilitate the orderly consideration of the Citys
Petition, the district court struck the interim status conference set for January
31, stating that it would be rescheduled at a later date, if appropriate, after
the Ninth Circuit resolves the Citys Petition.
In addition to objecting to the Court holding additional interim
conferences at the express request of the United States as Plaintiff, the City
raises in its Petition three additional points that merit a response by the
district court. First, on pages 8-9 (internal) of its Petition, the City remarks
that the Court thanked persons who made what the City describes as
disparaging comments during the portion of the Second Annual Status
Conference when the Court allowed members of the public to provide their
views regarding the Settlement Agreement and the Citys compliance or lack

thereof. On page 9 (internal) of its Petition, the City specifically quotes from
comments made by a Mr. Davis. At the time that Mr. Davis was speaking,
the district court considered this speaker merely to be offering his own
political commentary, including hyperbolic references to a dictator from
Haiti (referring to former President Jean-Bertrand Aristide), to the Office of
the Portland City Mayor being run like a dictatorship, and to a lawyer
working in the Portland City Attorneys Office (who had just made a
presentation during the hearing that defended the Citys position) previously
having been employed by the government of Haiti. At no time did the
district court consider Mr. Daviss remarks to be racial; nor would the Court
ever tolerate racially disparaging remarks being made during a court
proceeding (or elsewhere).
Second, at page 9 (internal) of its Petition, the City states the District
Court appeared to be inviting the United States to give [the City] a
hammer. Although the City quotes a portion of the district courts
remarks, the City did not provide the context, especially the specific remark
to which the district court was responding. Rev. Dr. T. Allen Bethel of the
AMA Coalition was providing comments to the district court. As shown on
page 104, lines 7-12 of the hearing transcript, Dr. Bethel stated:

But for 60 days they [the City] were out of compliance

[with the Settlement Agreement], even though I know
they got the agreement with the DOJ to do that.
Since the 21st of October, there has still been nothing

that has happened. So I still think I want to ask you to
drop the hammer on this non-compliance.
Hearing Transcript 104:7-12 (emphasis added). The district court then
responded, explaining:
THE COURT: If I can interrupt you for one second to

make sure we are on the same page. Under the settlement
agreement, I do not have a hammer yet. . . .
Tr. 104:13-15. Thus, when the district court made reference to a hammer,
the district court merely used the same word that Dr. Bethel had just used
and explained to him how matters needed to proceed under the Settlement
Agreement. Specifically, the district court explained why it would not, and
could not, act in the absence of a formal motion made by the United States,
as Plaintiff, as required under the terms of the Agreement.
Finally, the City states on page 10 (internal) of its Petition that the
Second Annual Status Conference lasted more than six hours. As shown in
the transcript, the bulk of this time was taken by presentations from counsel
for the parties, the parties themselves, and others whom counsel requested
make presentations to the district court. See Tr. 1-127. Only after these
presentations were concluded did the district court invite members of the

public who wished to comment on the status of the Citys compliance or
non-compliance with the Settlement Agreement to be heard as additional
amicus curiae. The transcript from the hearing shows that these public
comments consumed less than one-third of the total hearing time. See
Tr. 127-192. Moreover, during the time for public comments, one person
who expressed a desire to be heardand who was heardwas Portland City
Commissioner Amanda Fritz. Her comments appear at Tr. 182-192.
Excluding Commissioner Fritzs comments, the remaining comments from
the public consumed less than 30 percent of the hearing time as measured by
the transcript.2
The undersigned appreciates the opportunity to provide this response
in connection with the Citys Petition.
DATED this 15th day of March, 2017.
Respectfully submitted,
/s/ Michael H. Simon

Michael H. Simon
United States District Judge
2
In addition, approximately 30 minutes of the hearing was consumed by the
Court watching a video presentation at the request of the City, which included comments
from Portland police officers and others. Thesecomments are not reflected in the
transcript because the City submitted its video for the record. These comments, as well as
comments from the public, all provided valuable information to the Court concerning the
status of the Citys progress toward complying with the Settlement Agreement.

Judge Michael Simon District Court Response City Writ

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Case: 16-73878, 03/15/2017, ID: 10358300, DktEntry: 13, Page 1 of 9

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: CITY OF PORTLAND. No. 16-73878

_________________________ D.C. No. 3:12-cv-02265-SI

UNITED STATES DISTRICT

UNITED STATES OF AMERICA;

Real Parties in Interest.

In the underlying case of United States of America v. City of Portland,

Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C.

14141. The United States alleged a pattern or practice of unconstitutional

their Settlement Agreement and conditionally dismiss the action. In

substantially complied with all provisions of this Agreement and maintain

[sic] substantial compliance with all provisions for one year.

Police Association (PPA) to appear as a Defendant-Intervenor. The district

Police Reform (AMA Coalition) to appear as amicus curiae with certain

participation rights, but not with intervenor status.

The district court held a fairness hearing on February 18-19, 2014,

signed an Order Entering Settlement Agreement, Conditionally Dismissing

Litigation, and Setting First Annual Settlement-Compliance Hearing. The

dismissed after the district court agreed to enter an amended order.

Page 2 RESPONSE OF DISTRICT COURT

Amended Order Entering Settlement Agreement, Conditionally Dismissing

Litigation, and Setting First Annual Status Conference (Amended Order).

As part of the Amended Order, the district court retained jurisdiction to

progress being made toward achieving substantial compliance with the

Settlement and any obstacles or impediments that may be interfering with

conferences referenced in this Order or otherwise as may be directed by the

move to enforce the Settlement Agreement (emphasis added). The district

The district court held its second annual status conference on

the Citys obligations under the Settlement relating to community

engagement and the Community Oversight Advisory Board (COAB) and

Page 3 RESPONSE OF DISTRICT COURT

Coalition reflected similar concerns. According to the status report filed by

AMA Coalition on October 19, 2016, at pages 2-3:

The AMA Coalition is greatly concerned about the

Despite pleas from the AMA Coalition and numerous

existence of these problems.

During the second annual status conference, held on October 25,

implementation of the Settlement, at the request of the parties. The district

court also allowed brief comments to be made at the conference by members

of the public, whom the court received as additional amicus curiae.

from the parties regarding any proposed modifications to the Agreement,

Plaintiffs Post-Status Conference Status Report, stating:

Upon conferral with all parties, the United States requests

November 10, 2016, granted the alternative request of the United

Page 5 RESPONSE OF DISTRICT COURT

the City to file a supplemental compliance report by December 2,

Reassignment on Remand (Petition). Among other things, the City

December 14, 2016, to facilitate the orderly consideration of the Citys

31, stating that it would be rescheduled at a later date, if appropriate, after

the Ninth Circuit resolves the Citys Petition.

In addition to objecting to the Court holding additional interim

disparaging comments during the portion of the Second Annual Status

Page 6 RESPONSE OF DISTRICT COURT

political commentary, including hyperbolic references to a dictator from

Haiti (referring to former President Jean-Bertrand Aristide), to the Office of

having been employed by the government of Haiti. At no time did the

ever tolerate racially disparaging remarks being made during a court

proceeding (or elsewhere).

Court appeared to be inviting the United States to give [the City] a

hammer. Although the City quotes a portion of the district courts

AMA Coalition was providing comments to the district court. As shown on

Page 7 RESPONSE OF DISTRICT COURT