IN THE COURTS
By Jann Carson

Female Inmates Strip-Searched in Jackson County Jail
One Saturday night in the fall of  2003, approximately 28 female inmates of the Jackson County jail were ordered to the recreation room. Guards had received a tip that a razor blade was hidden in a cell. While some guards searched the cells for the razor blade, other guards began a systematic strip-search of all of the female inmates. The women were required to remove all of their clothing, to bend over and spread their cheeks while guards used a flashlight to peer into their buttocks and vaginas. All the while, male guards and inmates could observe the search from a window with improperly closed blinds separating the women’s recreation room from the male dormitory and the guard station.

The ACLU of Oregon has put the county on notice that we are representing many of the women searched. We are in the process of completing interviews and research to determine the range of legal claims the women have available to them. ACLU cooperating attorneys in this case are Keith Dubanevitch and Celia Howes of Garvey Schubert Barer of Portland.

Non-Traditional Homes Protection
The ACLU of Oregon joined the Federal Public Defenders, as friends of the court, to urge the Ninth Circuit Court of Appeals to reconsider its decision in USA v. Barajas, a 4th Amendment search case. The issue is whether evidence obtained by law enforcement without a warrant should have been suppressed.

Police in Washington County trespassed on Barajas’ thirty-acre, undeveloped property to surveil a natural clearing containing a travel trailer and Quonset hut. Defendant Barajas argued that police could not enter the clearing without a warrant because the clearing was in essence a curtilage. Curtilage is the land immediately surrounding a home or place of dwelling and the 4th Amendment requires a warrant prior to searching a curtilage or dwelling. In this case, Barajas argues the trial court should not have allowed law enforcement’s observations from within the curtilage, such as peeking into the trailer and hut, to be evidence used to obtain a search warrant.

The ACLU of Oregon is troubled by the 2-1 decision of the Ninth Circuit panel affirming the trial court because it gives law enforcement greater latitude to trespass onto property that contains non-traditional dwellings. We see a danger in applying one standard to traditional housing and another, lesser standard for other settings. We know people of lower economic means often live in non-traditional dwellings. There have been cases of homeless people’s shacks and migrant workers’ camps being searched without warrants.  It is wrong to allow the 4th Amendment’s protection from unreasonable searches to be  based on economic differences.

Unfortunately, the Ninth Circuit denied Barajas’s motion for reconsideration. We will wait to see if Barajas files a petition for certerorai with the U.S. Supreme Court.  ACLU of Oregon’s cooperating attorneys were Margarita Molina and Tim Volpert of Davis Wright Tremaine LLP in Portland.

Right of Assembly - State v. Ausmus 
On March 11, 2004, the Oregon Supreme Court declared a portion of Oregon’s disorderly conduct statute to be unconstitutionally overbroad on its face. The ruling was celebrated by the eleven defendants and their attorneys, as well as the ACLU, as a victory for the rights of Oregonian’s to assemble and protest. 

The statute, ORS 166.025(1)(e), provides as follows: “A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person: “(1)(e) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.”

Before the Oregon Supreme Court, the ACLU, in a friend of the court brief, joined the defendants in arguing that ORS 166.025(1)(e) was unconstitutional on its face because it was both “overbroad” and “vague.” The Supreme Court agreed with the first of these arguments, holding that ORS 166.025(1)(e) is unconstitutionally overbroad because it restrains conduct protected by Article I, sections 8 and 26, of the Oregon Constitution. 

In a unanimous opinion authored by Justice Paul J. De Muniz, the Court concluded that the problem with ORS 166.025(1)(e) is that a person who is ordered to disperse violates the statute regardless of whether any harm results from the refusal to disperse or the continued congregation with others. In other words, as the ACLU argued in its amicus brief, a protestor engaged in protected speech or assembly who refuses to comply with a lawful order to disperse—but who is not engaging in illegal activity or threatening violence—may nonetheless be arrested for disorderly conduct in violation of ORS 166.025(1)(e). The Court stated that “because ORS 166.025(1)(e) reaches that conduct, the legislature has stepped beyond the permissible regulation of damaging conduct or the harmful effects that may result from assembly or speech.” Accordingly, the Court concluded that ORS 166.025(1)(e) is unconstitutionally overbroad on its face because Article I, sections 8 and 26, of the Oregon Constitution protect individuals from governmental restraint of expression or assembly that is not causing a harmful effect. 

The practical effect of the Ausmus opinion is that the police can no longer arrest a protestor under ORS 166.025(1)(e) simply for failing to comply with a lawful order to disperse. Rather, the Oregon Constitution permits an arrest for failure to comply with a lawful order to disperse only if the protestor is engaged in conduct that is violent, illegal, or otherwise causing a specific harmful effect.  This is a welcome and just limitation on police authority to break up peaceful and legal protests. 

By way of background, the Ausmus case arose from a demonstration against the United States bombing of Iraq that took place in downtown Portland in December 1998. Jason Ausmus and the other defendants were arrested moments after police ordered them to disperse, despite the fact that Ausmus had been waiting for a bus near the demonstration and other defendants were peaceably gathered when they were ordered to disperse. The defendants were charged with ORS 166.025(1)(e), the crime of disorderly conduct, for refusing to obey a lawful order to disperse.

The ACLU of Oregon’s amicus brief in State of Oregon v. Ausmus, et al. was prepared by cooperating attorneys Alia Miles and Jonathan Ater of Ater Wynne LLP and Les Swanson of Portland.