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Oregonian, The (Portland, OR)

December 2, 2001

CONTROVERSY SWIRLS AROUND 2 STATE LAWS

Author: ASHBEL S. GREEN and MAXINE BERNSTEIN - The Oregonian

Edition: SUNRISE
Section: LOCAL STORIES
Page: A01

Estimated printed pages: 6

Article Text:

Summary: The uproar over anti-terrorism interviews is not the first flap involving two 1980s statutes
Two state laws that Portland says restrict police in questioning 23 foreigners as part of the federal government's anti-terrorism investigation have repeatedly sparked political controversy in the city during the past decade.

There are no definitive court rulings on the 1980s statutes, which prohibit police from "detecting or apprehending" people who have violated only federal immigration laws, and from collecting information on political, social or religious beliefs unless it pertains to a criminal investigation.

But the laws have exposed Portland to lawsuits and intense political criticism for its involvement in a 1992 immigration raid, its collection of information about political activists and motorcycle club members, and its participation in a federal anti-terrorism task force.

Now, the statutes have put Portland in the national spotlight, making it the first city in America to use a legal justification to refuse to participate in a broad anti-terrorism initiative.

Despite opinions to the contrary by Oregon Attorney General Hardy Myers and Multnomah County District Attorney Michael Schrunk, Portland City Attorney Jeff Rogers said the statutes prohibit Portland police from asking some of the 33 questions posed by U.S. Attorney General John Ashcroft.

"Of all the jurisdictions, we probably have the most experience dealing with these statutes," Mayor Vera Katz said. "We believe that Jeffrey Rogers' team and his experience on this is unmatched."

The law that has generated the most attention started as a bill to allow employers to obtain criminal background information on prospective employees.

Introduced in the 1981 Legislature on behalf of Associated Oregon Industries, a powerful business group, the bill drew fire from the American Civil Liberties Union, which said it eroded privacy.

As a compromise, the Legislature added language to prohibit police from collecting or maintaining information about the political, religious or social views of any individual or group unless the information is part of a criminal investigation and involves criminal conduct.

In the 20 years the law has been on the books, no case challenging it has ever reached Oregon's appellate courts for an interpretation. Portland, however, has been sued under it for retaining information about political activists and members of motorcycle clubs.

In 1993, Douglas Squirrel sued then-police Chief Charles Moose after discovering that the Portland Police Bureau had gathered information on Squirrel and other political activists.

As part of his lawsuit, Squirrel sought all the records police held on him. Police objected but eventually turned over eight documents that referred to Squirrel's participation in various political demonstrations.

Multnomah County Circuit Judge Michael Marcus ruled that seven of the eight documents were legal because they dealt with groups discussing civil disobedience actions. But one document showed that police had sent two undercover officers or informants to a July 26, 1992, Peace and Justice Works meeting in which Squirrel and others discussed police accountability. Marcus ordered the Police Bureau to destroy the document.

"The mere presence of an individual, group, organization, corporation, business or partnership at an event or activity where criminal behavior is discussed, planned or conducted by others shall not be sufficient basis" for including that person or group in a police document, Marcus ruled June 28, 1996.

Marcus also ordered the Portland city attorney to audit the files of the Police Bureau's criminal intelligence division every two years and ensure records that do not comply with state law are purged.

Considering the city's effort to conceal the documents involving Squirrel, his attorney, Philip M. Lebenbaum, said he was surprised by Portland's recent citation of the law as its reasoning for refusing to assist in the interviews.

"This is not the decision they've been taking in the Squirrel case," Lebenbaum said. "I was pleasantly surprised because I think they're dead on. But I also think it took some guts."

Lebenbaum added: "Where you stand depends on where you sit. The district attorney wants to be able to prosecute cases. The Department of Justice wants to be able to prosecute cases. But the statute was passed by the Legislature, and it says you can't maintain files on a noncriminal without violating the statute."

The next time the city was sued for collecting information, it won.

In 2000, Spencer Neal, a Portland civil rights attorney, sued the city in U.S. District Court in Portland on behalf of a motorcyclist because police had kept information on him and another motorcycle club member they thought were part of outlaw biker gangs.

Neal argued that his client's constitutional rights under the First and 14th Amendments had been violated because police collected, maintained and distributed information about his client with no evidence of a crime but solely because he wore club colors.

In June 1988, Robert Challis and another motorcyclist were stopped by a Portland police officer for speeding. The officer completed Field Contact Reports on the stop and noted that the motorcyclists wore their clubs' colors.

The reports noting the men's attire were entered into a police databank, and police said the files are maintained for six to 10 years. On at least two other stops, police photographed Challis and distributed his picture to other law enforcement officials. Police defended the actions, saying they were gathering information to develop a racketeering case against the club.

But the officer later testified as part of the lawsuit that although they were stopped for traffic infractions, he had no reason to think either man was engaged in criminal activity.

In July 2001, U.S. District Judge Ancer L. Haggerty found that the city had not violated the state statute or Challis' federal due process rights.

"Plaintiff's interests in being free from the police collecting information about him is relatively minimal when contrasted with the police's legitimate interest in investigating and preventing serious crime by organized gangs," the judge ruled.

While Haggerty was issuing his opinion, the city was in the middle of another dispute about the limits of the law. Throughout the summer, the ACLU and other local activists spent hours testifying before the City Council against Portland's continued participation in a joint federal anti-terrorism task force. They argued that the state statute prohibited police from participating.

The city disagreed, but the mayor and police chief signed a contract pledging to be vigilant to make sure police do not violate the statute.

"They promised the community that the Portland-FBI Joint Terrorism Task Force would not violate these laws, and they have followed through," said Dan Handelman, of the police watchdog group Portland Copwatch. "That's very heartening. In a rare case, we're being supportive of the city and police here."

1987 statute also scrutinized
The law preventing police from enforcing federal immigration law passed the Legislature in 1987.

Rocky Barilla, a former Democratic state representative who sponsored the bill, said it was inspired by a series of incidents in which police used immigration status -- a civil matter -- as an excuse to question Latinos and foreign students whom they otherwise had no reason to suspect of criminal activity.

Barilla, who now works for the California Teachers Association, said the law allowed police to cooperate with federal law enforcement on criminal matters such as making false documents and smuggling undocumented people into the country. But it prevented them from trying to enforce civil immigration laws.

"I didn't want to hinder real police investigations in criminal matters," Barilla said. "On the other hand, we didn't want them to go on fishing expeditions."

Although Portland has not been sued under the law, members of the Latino community accused police of violating it in 1992 when they helped Immigration and Naturalization Service agents during a raid of the Galaxy Apartments in Northeast Portland looking for undocumented workers.

In response to the criticism, Portland police changed the policy and strictly limited their involvement in immigration raids. Then-Police Chief Tom Potter said the changes were designed to address complaints by Latinos who felt that police discriminated against them by stopping them only to ask about their immigration status.

Oregon's congressional delegation praised the new policy and called it a national model.

"It sends a strong message that we want to hear from all our citizens, that all our citizens are going to get a fair shake when they come in contact with law enforcement officials," then-Rep. Ron Wyden, D-Ore., said at the time.

Statewide, the appellate courts have decided only one case under the law.

In 1993, the Oregon Supreme Court rejected the appeal of an illegal immigrant who challenged his conviction of being an ex-convict in possession of a firearm.

Wilfredo Rodriguez claimed in his appeal that the court should have thrown out the discovery of two firearms in his residence because Portland police had joined an INS agent on the raid in violation of the law.

Writing for the court, Justice W. Michael Gillette said the police had not violated the law because they were not there for the purpose of "detecting or apprehending" the defendant for violation of immigration law, they were "looking for violations of state statutes."

Although the laws have been a source of controversy, none compares to the recent flap.

Rogers, who has been city attorney for nearly two decades, said the city finds itself in an ususual position. Historically, the city has defended itself against charges that it was violating the statutes. Now, it is saying that the laws prevent it from acting.

"In a time of crisis, laws can be changed," Rogers said. "But as long as they exist, we follow it."

You can reach Tony Green at 503-221-8202 or by e-mail at Tonygreen@news.oregonian.com. You can reach Maxine Bernstein at 503-221-8212 or by e-mail at Maxinebernstein@news.oregonian.com.

Caption:
Sidebar - Statutes in Question

Copyright (c) 2001 Oregonian Publishing Co.
Record Number: 0112010288