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Secret List Allowed to Continue,
With Reservations, In Judge's Ruling

The controversial plan which forces repeat arrestees to enter treatment or face felony charges for misdemeanor crimes--Project 57/aka the Neighborhood Livability Enforcement Program (NLECP)- - went on trial in early 2009. The program depends on a secret list of some 400 people who are targeted as chronic offenders (PPR #46). On April 8, Multnomah Circuit Court Judge Dale Koch ruled that the City could not use the list to stiffen people's charges. However, he also said they could present suspects' repeat convictions (not just arrests) to the District Attorney on a case by case basis for review. As a result, two of five defendants in the case will be charged with felonies based on their previous records. The other three will be allowed to enter the judge- supervised STOP rehabilitation program, meaning their records may be expunged if they complete the program. Koch refused to rule on the constitutionality of the list, leaving it up to City Council to decide whether to keep using it. Officer Jeff Myers (#39608), the main proponent of the list, declared that he had no plans to change his behavior.

Myers retired after twenty one years as a police officer in Tucson, and came to Portland in 2000 as he was "interested in community policing." He joined the Portland Police Bureau and, as he testified during the trial, "I thought the whole system (in Portland) was broken. It was very dysfunctional in 2000 and I sought a holistic approach." Despite his belief that he was riding to our rescue, Officer Myers may well have been responsible for violating the constitutional rights of dozens of people, most of whom are people of color.

ACLU Attorney Elden Rosenthal and public defenders Lisa Pardini, Spencer Hahn and Brian Schmonsees represented the defendants in the January trial. In establishing Project 57, Myers focused on what he termed "livability issues" in five neighborhoods: Old Town, The Pearl District, Northwest Portland, Goose Hollow and Downtown. Myers subsequently established a secret list of 30 individuals, which was referred to as "the dirty thirty," that later ballooned to 400 names and included a disproportionate number of African Americans -- 52% of the list vs. 6.6% of the Portland population (Portland Mercury, January 15). Myers testified that those on the list are given special access to housing and drug treatment. However, if an individual who is on the list for having been arrested previously--even if never convicted--is arrested for a violation such as residue drug possession, they are prosecuted for a felony.

Those not on the list are considered to have committed misdemeanors and are eligible for the STOP drug court diversion program. If they complete the program, the charges are dismissed and they can expunge the arrest record. In what he may have perceived as a magnanimous gesture regarding the secrecy of the list, Myers stated, "I certainly have no desire to defame someone's character by distributing information about them that is negative" (Oregonian, January 8). The secrecy includes those on the list, who have no idea they are on it. Further, there is no mechanism for a person on the list to be removed from it, but they can be dropped from the "Master List" if no other crime is committed in three years.

Deputy District Attorney David Hannon focused his examination of Myers on the supposed success of the program, bringing forth a number of objections from Rosenthal on the basis that the issue was not the success of the program, but its constitutionality. During his direct examination, Myers admitted that upon the expiration of the Drug Free Zones in late 2007 (PPR #43), he put his program "on steroids" because "enhanced prosecution of residue cases was lost."

In their January 8 editorial, the Oregonian referred in a demeaning manner to those on the list as "frequent flyers," and addressed the concern of some civil libertarians by indicating they are "working off an old model, in which a secret list of names inevitably breeds abuses. The reality is that this list epitomizes community policing. It's used to connect frequent offenders to services and help them turn their lives around." (Perhaps this "old model" is like the quaint and obsolete provisions of the Geneva Conventions.) They also trumpeted the "success" of the program and stated that perhaps the list shouldn't be secret and should reflect conviction data rather than arrest data. The editorial ends by saying, "Certainly, the bureau should look at ways to tweak the list to bolster civil liberties and satisfy the objections of civil libertarians. But it appears to us that this program isn't just clipping the wings of frequent fliers. It's mending wings, too."

The case returned to Koch's courtroom in late February. On February 25 the Mercury's blog quoted Rosenthal's closing arguments to the Court: "After the hearing last month, I got a call from an editorial writer at the Oregonian, and she was very antagonistic towards me. She asked me what my problem was, she said that Officer Myers is the face of community policing in Portland, and I said that one of the most efficient police forces in history was Hitler's. But ... we're a long ways from the Gestapo. We have a bill of rights, which says that we don't go over that fence. We are over that fence and out in the front yard. Secret police lists have never come to any good, wherever they are used. There's just too much opportunity for abuse."

In his original post, Matt Davis of the Mercury wrote, "One of Oregon's most prominent civil rights attorneys compared Officer Jeff Myers to a Nazi in open court this morning." This prompted a response from Rosenthal in which he stated he was disappointed and requested apologies to himself and Myers. He indicated that while he had been accurately quoted, "at no time...[did] I compare Officer Myers to a Nazi." Davis responded that that "by evoking the specter of Nazism in reference to the secret list program, Rosenthal was implicitly comparing the officers behind the program to Nazis." In addition, Davis noted "Myers seemed to feel that the implication was clear."

  People's Police Report

May, 2009
Also in PPR #47

Chief Sizer Releases Profiling Plan
Judge Allows Secret List to Continue
Misconduct Costs $7 Million in 17 Years
Auditor to Quit; Board Adds Work Groups
Lawsuit Challenges Anti-Camping Ordinance
Shootings Report: Cops Let Suspect Bleed
  Clackamas Craziness and Other Area Police Shootings
Quick Flashes PPR 47
  • Private Cops Up the Ante
  • Oakland Copwatch Formed After Transit Cop Kills Man
  • Atlanta Cops Sentenced for Killing 92-Year-Old in Raid
  • Don't Swear At, Photograph Cops Abroad
Legal Briefs PPR 47
  • Supreme Court Rulings Erode Civil Liberties
  • Sit/Lie: It's Legal, No It's Not!
Updates PPR 47
  • Help or Coercion for Prostitution Suspects?
  • Woman Attacked by Cops Over Bike Light Loses Case
Rapping Back #47

Portland Copwatch
PO Box 42456
Portland, OR 97242
(503) 236-3065/ Incident Report Line (503) 321-5120
e-mail: copwatch@portlandcopwatch.org

Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.

People's Police Report #47 Table of Contents
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