Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 1 of 26 Case No. ________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE CITY OF PORTLAND, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, Respondent and UNITED STATES OF AMERICA, PORTLAND POLICE ASSOCIATION, and ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM, Respondents-Real Parties in Interest. From the United States District Court For the District of Oregon, Portland Division, The Hon. Michael H. Simon Case No. 3:12-cv-02265-SI PETITION FOR WRIT OF MANDAMUS, FOR A STAY OF PROCEEDINGS AND FOR REASSIGNMENT ON REMAND TRACY REEVE City Attorney Office of City Attorney 1221 SW Fourth Ave., Rm. 430 Portland, OR 97204 Telephone No.: (503) 823-4047 Facscimile No.: (503) 823-3089 Email: [email protected] Attorney for Petitioner Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 2 of 26 PRAYER FOR RELIEF The City of Portland invokes the supervisory authority of this Court under 28 U.S.C. § 1651(a), FRAP 21, and Ninth Circuit Rule 21-2, and prays for a writ of mandamus directing the United States District Court for the District of Oregon: (a) to withdraw its Order setting a further Status Conference in United States of America v. City of Portland, United States District Court (Oregon) No. 3:12-cv-02265-SI (ER-300); (b) to schedule or hold no more than one Status Conference in any calendar year, unless either the United States of America or the City of Portland invokes the breach provisions of their Settlement Agreement, and then only to the extent provided in the Settlement Agreement, and without testimony or comment on the record from members of the public; or, in the alternative (c) to vacate its Amended Order Entering Settlement Agreement, Conditionally Dismissing Litigation, And Setting First Annual Status Conference, and to enter an Order Entering the Settlement Agreement and Conditionally Dismissing Litigation, without providing for or scheduling any further status conferences; and 1 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 3 of 26 (d) to take such other measures as, in the judgment of this Court, will secure to the City of Portland the benefit of its bargain in the Settlement Agreement and in settlement of the prior appeal in this matter, in United States of America v. City of Portland, Ninth Circuit No. 14-35903. In order to allow this Court to consider the City’s petition, the City further moves for an Order staying the District Court’s Order setting an interim status conference for Tuesday, January 31, 2017 (ER-300). Finally, the City moves the Court, in its supervisory capacity, to direct the reassignment of this matter to a different District Judge on remand. 1. ISSUES PRESENTED This case involves a Settlement Agreement entered into between the United States of America and the City of Portland, Oregon, to resolve a claim made by the United States under 42 USC § 14141, and denied by the City of Portland, that the City, through its Portland Police Bureau, has a policy or practice of depriving persons suffering from mental illness, or perceived to be suffering from mental illness, of their federally protected Constitutional rights by subjecting such persons to excessive force. The issue is whether the District Court has abused its authority or committed legal error by exceeding the limited scope of its jurisdiction to 2 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 4 of 26 enforce the Settlement Agreement at the request of one or the other of the parties, has entangled itself inappropriately in the operation of a municipal police department, and has deprived the City of Portland of the benefit of its bargain with the United States. 2. STATEMENT OF THE FACTS In 2010, Aaron Campbell, an unarmed black man experiencing a mental health crisis, was shot and killed by a Portland Police Bureau (PPB) officer.1 In the aftermath of that tragedy, Portland’s then-Mayor Sam Adams and then- Police Commissioner Dan Saltzman invited the United States Department of Justice (DOJ) to investigate the PPB and make recommendations for improvement of its policies and procedures. DOJ conducted a lengthy review of police use of force in Portland, and issued a report asserting that PPB had a policy or practice of unconstitutionally using excessive force on people who either were or were perceived to be mentally ill. The City of Portland denied, and continues to deny, that any such policy or practice existed or exists. But the 1 The City subsequently settled a civil rights action brought on behalf of Mr. Campbell’s estate, Estate of Aaron Campbell v. Ronald Frashour, et al., United States District Court (Oregon) No. 3:10-cv-01358-MO. The City also attempted, unsuccessfully, to fire the officer who shot Mr. Campbell. The City was held to have committed an unfair labor practice when it refused to implement an arbitrator’s award directing the officer’s reinstatement. Portland Police Association v. City of Portland, 275 Or. App. 700, 365 P.3d 1123 (2015). 3 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 5 of 26 City also was and is committed to improving both the performance and the perceived legitimacy of its Police Bureau. Desiring an outcome beneficial to all, and most importantly to the community PPB serves, the City embarked on extended negotiations with DOJ to agree on improvements that the City could implement to improve the interactions between the police and people with mental illness, to enhance transparency, and to build trust and legitimacy with the community. The United States and the City of Portland reached a Settlement Agreement, after protracted negotiations, without the need for the United States to commence an action in court. The City agreed to make improvements in its police policies and practices, and to enhance public oversight, transparency and accountability for incidents involving use of force by Portland police. The quid pro quo for the City’s agreement was the agreement of the United States that the agreement would be effectuated and implemented by the parties, without the active involvement of the District Court. To that end, the parties agreed that the agreement would take the form of a Settlement Agreement, rather than a consent decree, that there would be no court-appointed monitor, and that the District Court would be involved only to the extent that either of the parties invoked the provisions of the Settlement Agreement dealing with breach (Settlement Agreement, ¶¶ 181-186). 4 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 6 of 26 The City’s insistence that these results be achieved through a Settlement Agreement between the City and the United States, rather than by a consent decree entered by the Court, was intentional. An essential feature of the Settlement Agreement, from the City’s point of view, was that the parties themselves would be responsible for its progress and enforcement. The DOJ agreed to this structure, so long as it could file, and then conditionally dismiss, a federal court action in order to ensure that the District Court would retain jurisdiction to enforce the Agreement under the specific circumstances set forth at paragraphs 181 through 186 of the Settlement Agreement. Short of invocation of that process by DOJ, however, the Settlement Agreement never was intended to involve the active, independent participation by the Court in its monitoring or implementation. As agreed by the parties, DOJ filed the action and moved to enter the Settlement Agreement and to dismiss the case. Since the action was filed, the District Court has taken an escalating series of steps to enlarge the proceedings, to insinuate itself into and take control of the implementation of the Settlement Agreement, and, thus, fundamentally to alter the bargain struck by the parties. Before entering the Settlement Agreement, the District Court conducted a fairness hearing, allowed the Portland Police Association (the union representing the sworn, non- supervisory, officers of the Portland Police Bureau) to intervene as a party, and 5 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 7 of 26 granted “enhanced amicus” status to the Albina Ministerial Alliance Coalition for Justice and Police Reform. Following the fairness hearing, the District Court initially proposed to stay, rather than dismiss the action, to retain jurisdiction to enforce “any provision” of the Settlement Agreement, and to require periodic evidentiary hearings to assess the City’s compliance and to address the District Court’s concerns. The United States, the City and PPA conferred and proposed an alternative Order, which would have dismissed the action, while allowing the parties access to the District Court to enforce the Settlement Agreement and the Memorandum of Understanding between the City and PPA, would have clarified the termination and enforcement provisions of the Agreements, and would have created a mechanism for the person charged with assessing compliance with the Settlement Agreement (known as the “COCL,” an acronym for Compliance Officer and Community Liaison) to have provided information to the District Court. The District Court rejected the parties’ proposed order, and entered its own Order Entering Settlement Agreement, Conditionally Dismissing Litigation, and Setting First Annual Settlement-Compliance Hearing. (ER-78). That Order was the subject of the City’s appeal in United States of America v. City of Portland, Ninth Circuit No. 14-35903. On appeal, in mediation with 6 Case: 16-73878, 12/09/2016, ID: 10227894, DktEntry: 1-1, Page 8 of 26 the assistance of Circuit Mediator Lisa Jaye and the Honorable Edward Leavy, Senior Circuit Judge, the parties negotiated an alternative Order, which provided only for annual status conferences to receive reports from the parties (including the intervenor and the “enhanced amicus”) and the COCL and the Community Oversight Advisory Board (another entity created pursuant to the Settlement Agreement).