Last week, hundreds of Portland police officers protested against their Chief Rosie Sizer, Portland Commissioner Dan Saltzman (our elected official who oversees the police) and The Oregonian (our major newspaper).  The protesting officers sought sympathy and support.by positioning themselves as victims of authority. 

I had something to say then, but waited to comment.

At the police protest, some officers wore t-shirts stating: “I am Chris Humphreys.”  If you weren’t closely following the action, you might assume that Chris was an officer killed or injured in the line of duty, having bravely placed himself in danger to protect a helpless citizen.  Or you might suppose he had drawn the spotlight through hours of volunteer service, promoting understanding with skeptical minority communities or educating himself about citizens with mental and physical disabilities. 

But no. Portland police identify with Chris Humphreys  because  -- three years after helping to beat James Chasse, a frail mentally ill man, to death -- he was disciplined for poor judgment after using a bean bag shot gun at point-blank range to control a flailing 12-year-old girl. 

I had something to say then, but waited to comment.

I heard that the Portland City Attorney now claims that James Chasse was having an episode of “excited delirium” when he was beaten to death.  This “disorder"has been aggressively promoted by the Taser industry to explain why some people die after being tasered or held in prone restraint.  I guess the City Attorney thinks that after the small man with schizophrenia was chased, leapt upon and had the majority of his ribs cracked on the cement sidewalk, his continued struggle was not brought on not by fear for his life, but by a mysterious medical syndrome that justified his being kicked, punched and repeatedly Tazered by a man who is now lionized on police t-shirts.

I had something to say then, but waited to comment.

When the police amassed in front of City Hall I could not help but think of all the times in history when a country’s army or police converged under government buildings to seek the removal of elected governments.  Although this overtly political action seemed designed to portray police as victims of politics and misunderstanding, the visual image struck me as intimidating.  The paramilitary to which we give special authority to carry weapons (and, of course, to use them when necessary) were making a show of force beneath the gate of our implicitly wimpy elected officials.

As you can tell by now, I find the way that this city processes the question of how our police should act to be maddening.  Letting my fury fly would just make me a player in the very process that could produce “excited delirium” in any observer.

I waited to comment because I needed to cool down. 

Portland wants a skilled and professional police force to both protect and respect us.  As a public service paid for with tax dollars, citizens are entitled to transparency and accountability in its provision.  The process that we seem to have now of dueling accusations and scare tactics, mutually assured covering of behinds, scapegoating and the seemingly inevitable publicly-funded “stress claim” parachutes and law suit settlements resolve nothing.  If an officer has joined the police force because he or she likes the feeling of power that comes from being feared, switching to an auditor position with the IRS might be a better choice.  If a police officer is in the struggle because he or she likes the feeling of power that comes from throwing stones at authority, the blogosphere offers many opportunities.

My settled down view goes like this:

Portland needs a truth and reconciliation process for its police system.  It needs an independently appointed review body with teeth for citizen complaints.  It needs the renewed commitment of police personnel to a mission of safety, professionalism, transparency and accountability.  It also needs community attention and support for the successes, not just the controversies.

On Monday, a three judge panel of the Ninth Circuit Court of Appeals found that Portland’s local transit system, TriMet, does not have to make certain modifications for riders with disabilities.  The plaintiff, who uses TriMet’s paratransit system, LIFT, asked TriMet to accommodate her balance disorder by providing her rides only in sedans or taxis.  Her doctor had informed TriMet that riding on the LIFT bus aggravated her condition by causing her dizziness, nausea and emotional stress.

The court decision hinged on whether regulations of the US Department of Transportation (DOT) or the US Justice Department (DOJ) applied to the plaintiff’s request.  The DOJ regulations require public entities to make reasonable modifications in policies, practices, or procedures when necessary to avoid disability discrimination.  The DOT’s regulations, the court found, do not have this requirement and since they govern the operation of paratransit systems, case dismissed.

Although the court set out a lengthy and detailed analysis of administrative law to support its conclusion, I sensed something else going on in the opinion.  At one point, the court says that the plaintiff “would like an enhanced level of service that would enable her to choose whatever vehicle she would like to ride.”  In concluding, the opinion says, “We recognize the importance of paratransit systems for disabled individuals… We are mindful, however, that the ADA requires only a ‘comparable’ level of service and the DOT regulations implementing the ADA ‘do not contemplate perfect service’ for the disabled.

"Like" to ride?  I can't help but sense in the use of this word an underlying bias against the notion of disability discrimination.  I've heard many comments over the years that the ADA does not level the playing field for people with disabilities but, instead, gives them special rights and benefits.  I made up a quote that I use to illustrate this view: “We’re not discriminating.  Anyone is allowed to use those steps!”

The court approvingly quotes a DOT regulation that says the ADA “is intended simply to provide to individuals with disabilities the same mass transportation service opportunities everyone else gets, whether they be good, bad, or mediocre.”  I suppose the same thing could be said about steps.

When the judges said that the plaintiff wanted to choose whatever vehicle she likes, they may have been right, but the ADA would never require that.  The ADA would only require that she have access to a vehicle she needs. 

This little choice of words reveals, to my sensitive eye, a bias against the ADA and perhaps against those who must use public transportation.  After all, if a rider is reduced to relying upon this form of transportation, “good, bad or mediocre,” she should shut up and suffer with the rest of us.  Total exclusion thus becomes a problem of personal wealth rather than equal access to a public service.

[The case is Boose v. Tri-County Metropolitan Transportation District of Oregon]

Each year, Major League Baseball names two pitchers (one from the American League, one from the National) as the best in the game.  This year’s American League Cy Young Award went to Zack Greinke of the Kansas City Royals.  The voting for the award wasn’t close.  Greinke’s 16-8 season, combined with a major league-low 2.16 earned run average garnered him 25 of 28 first-place votes by the Baseball Writers' Association of America.

And, oh yes, Zack Greinke happens to be a consumer of mental health services.

Greinke came to professional baseball directly after high school in Orlando, Florida.  He was selected at age 19 by Kansas City in the 2002 player draft.  Working his way up quickly from the minor leagues, he made his major league debut in 2004.  He did well that year but had a rough season in 2005, losing 17 games.  He left spring training the following year and stayed away from baseball for 7 months.

During this period, he was diagnosed as having social anxiety disorder and depression for which he began treatment.  He returned to the majors in 2007 on a one-year contract.  He did well enough to return in 2008 and had a good year for the hapless Royals, going 13-10.  In 2009 he was the best in the majors, pitching 24 consecutive innings without giving up a run.

In an interview in the Kansas City Star after he returned to baseball, Greinke talked about his experience.  When his problems started, he did not attribute them to an emotional disorder.  He was just unhappy playing baseball.   "It was always, once I got away from baseball, I was fine.  I just thought that, at the baseball field, I was unhappy."

"I'd talk to my agent all the time and ask him: 'How can I tell the Royals that I don't want to pitch? That I want to try hitting?’  I thought that was why I hated baseball. I thought it was because I wanted to hit. It would be at least once a month that I'd be crying to myself while I'm going to bed with a bat in my hand, just swinging it. It's stupid. That doesn't happen anymore."

When interviewed, he still didn’t know what to make of his diagnosis.  "Depression kind of runs in my family.  But I don't know if that's what I was actually going through.  The medicine I take is an antidepressant. So [depression] must have something to do with it. That and social anxiety. But I don't think it was a serious case. I mean, I never thought about killing myself.”

Since that time, Greinke has not spoken publically about his depression or social anxiety diagnoses.  Some sportscasters have speculated whether Greinke has Asperger’s at the root of his social issues.  Zach has let his pitching speak for him.

Whatever the label, the Kansas City Royals admire Greinke’s performance on and off the field.  Dayton Moore, the Royals General Manager, stated it this way: “I can’t speak to this because I’ve never experienced it, but I can only imagine how difficult it must have been for him to recognize his condition and evaluate it honestly and do something about it,” Moore said. “He’s been able to take all of those experiences and combine them and that’s why he is where he is today.”

This morning's Oregonian announced the death of Lee Johnson.  Judge Johnson had been a state legislator, Oregon Attorney General, advisor to Governor Atiyeh, appellate court judge and Multnomah County judge.  He was in the news last year when two of his grandchildren were tragically killed by a private plane that crashed into their house in Gearhart, Oregon.  He was also the defendant in the case Grant v. Johnson  which was filed by DRO in 1989.

Back then, Judge Johnson was running the Probate Court here in Portland.  Part of his job was to consider petitions for guardianships, including so-called  "temporary guardianships."  One day, an attorney representing Kevin Grant came to court and asked Judge Johnson to sign an order that would give his mother-in-law, Frances Sherrill, the power to make all medical and other life decisions for his wife Ginger.  The lawyer asserted that Ginger lacked the "capacity to meet the essential requirements for her physical health or safety due to her suffering from psychological problems preliminarily diagnosed at Providence Medical Hospital as high anxiety and panic reaction."  

Judge Johnson agreed to this request and appointed Ms. Sherill as temporary guardian "for a period not to exceed six months or until a permanent guardianship is established."   The Judge's order authorized Ms. Sherrill to "provide, consent to or approve any and all necessary medical or other professional care, counsel, treatment or service for Virginia Marie Grant"  and "to immediately place Virginia Marie Grant in a medical care facility, if necessary."  Ms. Sherrill immediately used this authority to have Ms. Grant placed on a psychiatric ward with strict orders that she could have no visitors, send mail or use the phone.  Meanwhile, Kevin Grant emptied the couple's bank accounts and moved out of their house.

After nine days of forced captivity, Ms. Grant was permitted by a concerned nurse to call DRO.  We immediately took steps to get her released.  We also looked carefully at what had happened in Judge Johnson' s court.  Our conclusion was that the Judge, Ms. Sherrill and Mr. Grant had all acted within the bounds of Oregon law.  The law on the books did not require Ms. Grant to be given meaningful notice and a chance to object.  Ms. Grant asked us to find a way to challenge that law so that something like this would not happen again.

Because of some very arcane procedural issues, we ended up suing Judge Johnson in federal court for the sole purpose of obtaining a declaration that the Oregon law was unconstitutional.  In 1990, Judge Helen Frye ruled in our favor.  The Oregon legislature subsequently changed the law to allow for adequate notice, independent investigation and opportunity to object.

Suing a judge is not what one would call a good career move.  We realized that at the time but couldn't figure out another way to get at the statute.  Judge Johnson was not pleased but he was professional.  Years later when we worked together on a bill to restructure Oregon's guardianship and conservatorship laws, he never mentioned the matter to me.  I did notice at that time, however, how smart and experienced he was.  When we filed our lawsuit, he seemed like a very old guy to us.  (He was about the age I am now.)  I'll admit to a certain amount of youthful rebelliousness on my part when we decided that suing a judge was the right thing to do.  

But was it the right thing to do?  Yes.  The courts exist to assure justice for our citizens.  The state (and Judge Johnson) chose to take this case all the way to the US Court of Appeals because it didn't like the idea of a judge being sued for following an unconstitutional law.  This is an reasonable principle but not one that would keep Ginger Grant and others from being held incommunicado on a psychiatric ward by authority of court order.  Her experience demanded justice for her and for others who are denied basic constitutional protections.

I'm saddened by Judge Johnson's passing.  I only knew him in his public role where he seemed a thoughtful and accomplished professional.  I don't think we added to the tragedies he endured in his private life.  In the arena of law, I sensed that he liked a good fight.

John Allen Muhammad – the “Beltway Sniper" – was put to death by lethal injection on November 9.  Muhammad had been sentenced to death for killing Dean Myers, 53, one of the10 people he gunned down in the Washington, DC region in 2002.

The skies opened up this weekend and Portland (aka "Puddletown") is literally awash in what's made it famous. November rains are a distinctive part of the Oregon experience. They also bring together a few salient (though little-known by outlanders) ingredients of our Northwest urban experience.

When I first came to Oregon, I expected that when autumn arrived it would be time to hop in the car and head out into the forest for some leaf peeping. That is, after all, what we did back East.  But, lo, it's mostly evergreens out there. The underbrush wasn't bad, but forests of raging color there weren't. Portland itself was a different story. This town of gardeners, where just about anything placed in the ground will happily grow, provides a wide and exciting array of color, shape and texture each fall.  So we put aside our cars and walk or roll through the dazzling urban landscape.

...Somehow we have not been able to help our motorists avoid the unsolicited thrill of blasting through our scenic autumnal street-lakes. Nor have we solved the problem of leaving pedestrians (particularly those in need of curb cuts) soaked and stranded on their shores.




Photo submitted by cyfacchini to http://photo.accuweather.com

Generally, the Portland weather in September and October is pretty darn nice. It allows us to enjoy the peak foliage in the not too hot, not too cold sunshine. But as the color fades and leaves start to drop, the skies darken and Pacific rainstorms ensue. It is now that Portland becomes the land of street-lakes.

As a general matter, rain in Portland is intermittent and moderate. Like Eskimos with snow, we have lots of words to describe the types of rain we experience. Most  are some version of "showers." Often they are interrupted by "sun-breaks." When those Pacific storms start to hit the coast in November, however, we tend to get good, old-fashioned hard rain.

You would expect that Portland would be prepared for, of all things, rain. But that's not entirely the case. The city infrastructure was designed to handle those all-too-common days and weeks and months of showers. But the sewer system was overpowered by hard rain. This caused raw sewage to dump into the Willamette River on a regular basis. Because this release-valve strategy got the attention of environmental officials, we have built two enormous underground pipes to act as overflow areas during peak demand. 

But there is something else.

Most of those beautiful leaves I mentioned earlier have headed for earth by November and the rains have helped stragglers to achieve their gravitational destiny. Many land in the streets and are pulled by rain water to storm drains, which their broad, wet masses clog. Since our city planners have carefully assured that all street water will flow toward storm drains, those leaf-jammed depressions soon become lake bottoms. The shores of these newly formed bodies of water extend well into the motoring portion of the streets, curb cuts, and sometimes up to the sidewalks, corners and the entire width of streets.

Although Portland motorists should be well-schooled in the art of puddle-dodging and general rain driving, this is not always the case. Fall rains bring the summer's accumulation of oil up out of the pavement. Wet leaves are not only clogging but amazingly slippery. Water splashing up from our new street-lakes can cause brakes to malfunction. Windows fog over with heavy rain. So the normal complex Portland routine of driving while keeping an eye out for pedestrians, bike riders, speed bumps and fancifully designed lane assignments now has its level of difficulty raised to "high."

Portland is famous for city planning and I am a big fan of what has been accomplished with public transportation, urban design, land use and livability. Comparatively speaking, we're a pretty accessible town.  But somehow we have not been able to help our motorists avoid the unsolicited thrill of blasting through our scenic autumnal street-lakes. Nor have we solved the problem of leaving pedestrians (particularly those in need of curb cuts) soaked and stranded on their shores.

We've dealt with the sewage overflow.  I say now it's time to deal with the rain drains.

Let's leave the "Land of 10,000 Lakes" moniker to Minnesota. 

After months of meetings and negotiation, followed by a complaint that eventually required an additional complaint and the intervention of our senior U.S. Senator, the Civil Rights Division of the federal Department of Justice has agreed to investigate a situation involving Andrew, my 8-year old client with autism.

My involvement began in April 2008, when Andrew’s school district refused to allow him to attend school with his trained autism assistance dog, Sadie.  His parents had gone to the effort and expense of acquiring the specially trained dog from a unique program in Ohio that trains assistance dogs for children with autism, 4 Paws for Ability.  

Andrew and his mom traveled to Ohio and spent more than a week at the program to bond with Sadie and learn how she could help the boy safely interact with others in public settings.  Sadie is also specifically trained to perform tasks designed to quickly de-escalate Andrew’s particular autism-related behaviors, on command or when he becomes agitated.  When he becomes aggressive, Sadie maintains a set distance on a tether by pulling him backwards.  To calm him, she lays down on him to apply comforting pressure, and then licks his face. 

Almost immediately, Sadie allowed Andrew to safely and happily participate in many normal community activities that had been difficult or impossible for him on his own.  His mom is now able to bring him with her to stores, restaurants, and other public places that had been impossible before Sadie.  Also, Sadie’s friendliness fosters positive interactions with other children, something typically difficult for a child with autism. 

Although Sadie clearly benefits both Andrew and the people around him, the school district refused to allow Andrew to bring Sadie to school.  That decision also cut Sadie out of Andrew’s life for about 6 hours every weekday, something that Sadie’s trainers believe reduces her effectiveness in other settings.

The school justified its decision with a number of objections.  One was that under state law, only students who are blind or severely physically disabled are entitled to have assistance animals at school.  Another was that allowing Andrew to bring Sadie to school with him would lead to an unending string of requests for other “therapy animals” from other students, and that the ensuing menagerie would cause allergic reactions and other potential harm that would prove disruptive and potentially lead to lawsuits.

Media reports of other instances in which similarly trained autism assistance dogs had been permitted to accompany students to school with minimal problems and excellent results failed to persuade school district administrators.  They also rejected a number of proposals by Andrew’s parents that included finding out if there were objections by other parents or children, implementing a “test” period to see if concerns were justified, kenneling Sadie during some classes, and professionally grooming Sadie once a week to minimize allergy problems.

The school district’s lawyer argued that the dispute was about special education and therefore could only be about whether my client was receiving adequate special education services.  

The district refused to consider that Andrew has an independent right to attend school with the support he needs and prefers – the same right that a paraplegic has when choosing between using a walker or a wheelchair to navigate in a public place that is supported with public dollars. According to the district, Disability Rights Oregon needed to challenge the rather good special education services that Andrew receives and then, after presumably losing at a due process hearing, go to federal court.

The recent acceptance of our case for investigation by the U.S. DOJ Civil Rights Division is a stark rejection of that legal theory.  Perhaps more importantly, DOJ’s involvement in our case is likely to make the district rethink its position that the protections of special education laws automatically strip students of other rights that protect people with disabilities.  I am hopeful that Andrew will attend school with Sadie by his side by the beginning of the next school year.

(The names used are to protect the privacy of client and family.)