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ACLU of Oregon—News
Volume XXIX, Number 2
Summer/Fall 1997




On Sunday morning, June 1st, Eugene police pepper sprayed and tear gassed scores of protesters and bystanders gathered at the construction site of a public/private development downtown. The police actions prompted numerous calls to our Eugene office raising serious questions about police procedures, training and possible misconduct. What began as a group of citizens attempting to peacefully postpone the destruction of 40 historic trees ended largely in serious damage to public confidence in the City and its police department. An expert on pepper spray at the ACLU of Southern California believes the June 1st incident in Eugene to be the worst abuse of pepper spray that has come to his attention.

The ACLU of Oregon is pursuing various remedies, including political and possible court actions to prevent such occurrences in the future. Public outcry over the police actions has provoked a unique opportunity to press for the creation of a citizen review board, and we are playing a key role in this community discussion.

Some of the demonstrators on Sunday were engaged in civil disobedience when they were pepper sprayed (tree sitters); others were in a crowd of supporters; still others were mere bystanders. The 40 trees were all cut that day, 22 people were arrested, and public comment at the City Council meeting the next night focused on the outrageous conduct of Eugene's police and the dire need for external review of police activities in this city of 120,000.

Police officers used fire truck ladders and pepper spray to remove protesters who were in the trees. The police even cut the pants of one climber from ankle to crotch, pepper spraying him continuously up and down his bare leg while he hung from a branch 30 feet above the ground. Pepper spraying the tree sitters without any safety nets clearly agitated the crowd, resulting in some charging the chain link fence which surrounded the development site.

Police responded by using canister after canister of pepper spray and tear gas to disperse the crowd. Citizens who were exercising their right to assemble and to protest the City's actions, as well as innocent bystanders--young and old--suffered the extremely painful and debilitating effects of pepper spray and tear gas. The pepper spray used by most police agencies is 100 to 1000 times hotter than the juice of a jalapeno pepper. When sprayed into the face, pepper spray causes rapid inflammation of the mucous membranes, instant closing of the eyes, coughing, gagging, and gasping for breath. The pain has been described as " having been hit in the eyes with hundreds of needles" or feeling like your "eyes are on fire. "

The use of pepper spray is not to be taken lightly. It can exacerbate serious health problems and be a contributing factor in causing death. As recently as mid-June, a San Quentin inmate died after being pepper sprayed in his prison cell. The Southern California ACLU reported 26 fatalities in California between 1993 and 1995 that appear to be tied to the use of pepper spray; the International Association of Chiefs of Police in 1994 reported 30 fatalities nationwide. No federal agency has taken regulatory responsibility for pepper spray and no comprehensive studies of the health effects of pepper spray on humans have been conducted.

Our initial research into pepper spray in Oregon has revealed serious discrepancies between recommended practices and its actual use. For example, a major pepper spray manufacturer says the product should be applied "in two (double tap) ¸ to 1 second bursts, " yet video footage shows much longer and repeated bursts during the June 1st incident.

In response to citizen outrage and concerns surrounding the June 1st incident, the Eugene City Council has formed a committee to research various police review mechanisms from across the country. The committee is expected to make a recommendation to the City Council by mid-October on the advisability of a review board. The 17-member committee includes ACLU Southern District Lawyers' Committee Chair Diane DePaolis.



The best thing we can say about the 1997 Oregon Legislative session is that it is over. Overall, the 1997 Oregon Legislature was very hostile to civil liberties, with few exceptions.

The effort to repeal Oregon's Death with Dignity law and the failed attempt to prohibit sexual orientation discrimination in the workplace were two issues that got the attention of the news media. But there were dozens of other bills with civil liberties implications -- and most of them were bad.

As you will see from the legislative scorecard, civil liberties get bipartisan support and opposition. It's not easy to choose a sample of votes to provide an accurate picture of where legislators stand on a wide range of ACLU issues. We monitored more than 800 different bills during the session and actively lobbied on about 150. Of those we opposed, many never reached the full House or Senate or were amended in response to our testimony.

A large number of bills that concerned ACLU were related to crime and that is why there are several crime and sentencing related bills represented in our scorecard. We also included bills related to some of our priority issues over the past few years: free expression, death with dignity, and lesbian and gay rights.




The 1997 ACLU Legislative Scorecard:
---Check how your Senators and Representatives voted on key civil liberties issues!
Summaries of the noted bills are listed below.



SB 936 - Measure 40 (Passed; Governor signed)

- This bill implements last year's Ballot Measure 40, known as the "Victims' Rights" measure, which made sweeping changes to Oregon's criminal justice system and tilted the scales in favor of the government in criminal cases. You may recall that we have a pending court challenge to Measure 40 arguing that it should be invalidated because it dealt with more than one subject and is a wholesale revision of the Oregon Constitution rather than an amendment. We opposed SB 936 because it included provisions setting aside legal protections against unlawful police searches that will remain in place even if Measure 40 is thrown out by the courts. The House vote included here is a proposed Minority Report (which we supported) that would have implemented only the parts of Measure 40 giving crime victims greater access to the criminal justice process. The Minority Report failed by a vote of 20-40. SB 936 passed the Senate (21-7) and the House (46-13). We recommended a veto. ACLU POSITION: Senate÷NO; House (Minority Report)÷YES.

SB 1049 - Ballot Measure 11 Reform (Passed; Governor signed)

- This bill removed three offenses (second degree assault, second degree kidnapping, and second degree robbery) from Ballot Measure 11's requirements for very lengthy mandatory prison sentences. Although the bill was supported by Crime Victims United (the sponsors of last year's Measure 40) and the Oregon District Attorneys Association, its passage was by no means certain because the bill required a 2/3rds majority to pass. (That requirement was imposed by 1994's Measure 10.) The House added the Measure 11 reforms to an unrelated Senate bill because the Senate Crime and Corrections Committee had refused to hold hearings on the issue. That parliamentary move allowed the issue to go directly from the House to the Senate floor for approval of the House amendments. We did not include the House vote because it was approved by such a wide margin (51-8). SB 1049 passed the Senate 21-8 (one vote more than necessary). ACLU POSITION: YES.

SB 1205 - Farmworker Bill (Passed; Governor vetoed)

- SB 1205 was designed to reverse a decision by the Oregon Court of Appeals which for the first time allows farmworkers to sue employers if they are fired for acting collectively to complain about working conditions or wages. Supporters of the bill argued that since Oregon collective bargaining law expressly excludes farmworkers, the Court had "made" law which is the job of the Legislature. Opponents, including the ACLU, argued that the bill had undertones of racism since most Oregon farmworkers are Hispanic and that the bill would eliminate the only existing legal remedy for farmworkers fired because they speak to their employer about working conditions÷a right guaranteed to virtually all other workers. SB 1205 passed the Senate (20-10) and the House (37-22). It was vetoed by Governor Kitzhaber. ACLU POSITION: NO.

HB 2433 - Police Searches; "Driving While Hispanic" (Passed; Governor signed)

- HB 2433 greatly expands the power of police officers to search motorists stopped for minor traffic infractions. It also expands the ability of police officers to stop and frisk pedestrians when there is reasonable suspicion the person is "about to commit" a crime. We argued that the bill will result in searches of hundreds of innocent Oregonians in order to catch a handful of criminals and that the impact of the changes will fall most heavily on ethnic and racial minorities, especially Hispanics. HB 2433 passed the House (39-20) and the Senate (20-9). We urged the Governor to veto. ACLU POSITION: NO.

HB 2954 - Death With Dignity Repeal (Passed; will appear on Nov. '97 ballot)

- One of the most contentious issues of the session, HB 2954 referred the repeal of 1994's Measure 16 to the November special election this year. Since ACLU was part of the Death With Dignity Coalition and supports the right of physician-aid-in-dying, we urged legislators to amend Measure 16 rather than ask voters to repeal it. On the bright side, since HB 2954 was the top priority for Oregon Right to Life and the Oregon Catholic Conference, there was no significant effort this year to pass any anti-abortion bills. HB 2954 passed the House (31-27) and the Senate (20-10). Since it is a referral to the voters, the Governor did not have the option to veto it. However, the Governor did veto HB 3502 which repeal supporters drafted to establish the ballot title for the measure. Instead, the Attorney General's office will draft a more neutral description to describe the measure. ACLU POSITION: NO.

HB 3643 - Recriminalization of Marijuana (Passed; Governor signed)

- HB 3643 changes the punishment for possession of less than 1 ounce of marijuana from a violation (subject to a $500-$1,000 fine) to a Class C misdemeanor (subject to a maximum 30 days in jail and/or $1,000 fine). While the battle over this bill was largely symbolic, it will permit police to do warrantless searches when a person possesses less than ounce. Such searches are not allowed for non-criminal offenses. We strongly opposed this change and urged the Governor to veto the bill. It passed the House 43-17 and the Senate 20-9. ACLU POSITION: NO.

HB 3719 - Sexual Orientation Discrimination (Passed House; Died in the Senate)

-The failure to win approval of anti-discrimination protection on the basis of sexual orientation was more frustrating than ever this year because the bill had such broad bipartisan support in the House. Parliamentary maneuvering and the opposition of Senate President Brady Adams killed the bill once it reached the Senate. Passed the House 40-20. ACLU POSITION: YES.

HCR 6 - Flag Burning (Passed; resolutions do not need Governor's approval)

- HCR6 urges Congress to pass a constitutional amendment allowing criminal prosecution of anyone who "desecrates" the flag. This bill was very similar to versions passed every two years by the Oregon Legislature since the U.S. Supreme Court held that flag burning laws violate the First Amendment. We strongly opposed because when flag burning is done for political reasons, it represents core political speech which should be protected by the constitution. Passed the House (34-18) and the Senate (20-8). ACLU POSITION: NO.




Schedule to Date

Faces of Liberty, ACLU’s traveling photo-journal exhibit, is not yet fully booked for 1997, and is totally open for 1998. If you would like to host Faces of Liberty in your community, or if you know of a potential display site, please contact the Portland office.

Each set of the exhibit is on display at each site for the entire month, unless otherwise noted.


Cascade College
E.W. McMillan Library
9101 E. Burnside St.


Churchill High School Library
1850 Bailey Hill Rd.

Oregon Episcopal School
6300 SW Nicol Rd.


Philomath High School
2054 Applegate




The infamous cross on Skinner's Butte, that has been at the center of heated fighting within Eugene's political scene, is gone. After more than 30 years on a hill in a downtown public park, the cross was removed early this summer.

In 1996, the Ninth Circuit Court of Appeals found that the City of Eugene ". . . violates the Establishment Clause by owning and maintaining a 51-foot Latin cross in a public park. " The City declined to appeal that decision to the U.S. Supreme Court, but the American Legion was granted intervenor status by Federal Judge Michael Hogan. In December of that year, the American Legion's request that the US Supreme Court review the lower court's decision was denied because the petition was filed 12 minutes after the deadline.

After the Legion lost all other appeals in the Federal Court in Eugene, a City of Eugene committee formed to help select a more appropriate private location for the cross. In June the cross moved to a private bible college in the Eugene area. Cooperating attorneys David Schuman and Allen Johnson represented the ACLU of Oregon during the long appeals process that started in the early 1990's.


In May, we filed a legal challenge which seeks to overturn the Oregon Department of Corrections rules which strictly limit what news media witnesses to executions can see and hear. The lawsuit, filed in the Oregon Court of Appeals, contends that the Department's rules violate the federal and state constitutional guarantees of freedom of the press and the public's right to know because they prohibit news media representatives and other witnesses from observing and listening to critical parts of the execution process. The ACLU of Oregon filed the challenge on behalf of several news media organizations.

At the May 1997 execution of Charles Harry Moore, DOC officials did have difficulty preparing Moore for his execution. However, there were no public witnesses to this part of the procedure and the public had to rely on DOC to report on their own actions. The focus of this challenge is whether public officials can carry out most of the execution process in secret.

The rules also require all witnesses to sign a contract agreeing not to disclose any information which would tend to identify corrections officials taking part in the execution process. The journalists and the ACLU claim that portion of the rules is an unconstitutional "prior restraint" on the news media.

The ACLU of Oregon is providing pro bono legal representation through its volunteer cooperating attorney, Leslie M. Swanson, Jr. of Portland.


On the Ballot, Again

The Oregon Legislature has referred the physician-aid-in-dying legislation created by Measure 16 to the November 1997 general election. The repeal of Measure 16 will appear on the mail ballots as Measure 51. (Look at HB 2954 on our Legislative Scorecard on pages 6 and 7.) The ACLU urges a no vote on Measure 51.

Oregon became the first state to allow competent, terminally ill patients to receive aid-in-dying from physicians when voters passed Measure 16 in 1994. However, the law has never taken effect because of a legal challenge, by National Right to Life, that has gone all the way to the United States Supreme Court.

Political insiders anticipate the campaigns to support and oppose Measure 51 will be among the most expensive and competitive ever waged in Oregon. Both sides will likely receive national, and perhaps international, support and contributions.

On the Legal Front

As we have reported in the past, the Oregon ACLU is directly representing a man with AIDS and a physician, both who wish to see Measure 16 implemented (Lee v. Oregon). In March, the Ninth Circuit Court of Appeals threw out the Right to Life lawsuit challenging Measure 16 on the grounds that the people bringing the lawsuit do not have the appropriate standing to do so. Although this is a legal victory, we are disappointed that the appeals court refused to rule on the constitutionality of Measure 16.

The injunction preventing Measure 16 from taking effect remains in place while Right to Life petitions the U.S. Supreme Court to hear the case. In its 1996-97 term, the Supreme Court ruled (in cases out of Washington and New York) that the constitution does not provide a fundamental right to end one's life. This decision implies that each state has the ability to allow or prohibit physician-aid-in-dying.

If the Supreme Court decides to review the Oregon case, we hope it will be to examine the merits of Measure 16 and not to scrutinize the technical standing issues which were the basis of the Ninth Circuit Court of Appeals decision. We may not hear whether the Supreme Court is going to review Lee v. Oregon until after its 1997-1998 term begins the first Monday in October. Of course, if Oregonians passed Measure 51 and repeal the physician-aid-in-dying law, the lawsuit will be moot.

Tom Christ, of Mitchell, Lang & Smith, has been the ACLU's cooperating attorney throughout the appeals portion of this case. Jeff Merrick and Mike Williams, of Williams & Troutwine, were our cooperating attorneys at the trial level in U.S. District Court.

The 1997 Uncensored Celebration reflects the ACLU's ongoing commitment to the fight against censorship. This is the 50th anniversary of the founding of the House Un-American Activities Committee, a grim commemoration of the institutionalization of censorship in the modern era. While the Committee is gone, censorship lingers on: Oklahoma City police recently confiscated copies of the Academy Award winning film "Tin Drum". Continuing Congressional attacks on the NEA signal that the struggle for unfettered free expression is far from over. This UC, take in a film, a show, an exhibit, a reading or other celebration of free expression -- and come to the Free Expression Party! 

Uncensored Celebration Free Expression Party!

On Friday, September 12, from 7-12:00 pm, the ACLU of Oregon is throwing a party on the rooftop of Yamhill Marketplace -- a veritable extravaganza of free expression!

Nadine Strossen, the national president of the ACLU will be here, headlining a fabulous lineup representing the full spectrum of the arts and creative community from the mainstream to the cutting edge. 10 individuals (including James Canfield, Oregon Ballet Theater; Walt Curtis, writer; & Kristi Edmunds, artist, PICA) will be given 3 minutes to say why free expression is important to them. Pink Martini, the ever-intoxicating band led by Thomas Lauderdale, will play and there will be performance art interludes throughout the evening. Video islands will show continuous clips and some very special short films.

You can get tickets at the door for a contribution of $5 - $10. Food and beverages will be available at a no-host bar staffed by O'Connors of Yamhill Marketplace. This party is produced in collaboration with Artists for a Hate Free America.

The Free Expression Party Host Committee includes Joan Biggs, James Canfield, Ursula LeGuin, Walt Curtis, Kristi Edmunds, Michael Powell, Joan Gratz, Jim Blashfield, Mark Woolley, Audrey Van Buskirk, Peter Gray, Tom Ranieri, Jeanne Goodrich, Robin Lane, Pete Miser, Missy Stewart, Matt Weurker, Julie Mancini, Don Merkt, Chris Monlux, Bill Clodfelter, Sarah Stephens, Howard Aaron, Kris Olson, Gus Van Sant, Robert Bailey, Nancy Coffelt, Howie Baggadonutz, D-J Haanraadts, Judith Barrington, Thomas Lauderdale and other local luminaries. This is going to be one great party!!

Watch for UC updates on our website!



As part of a sweep through the Northwest, National ACLU Grassroots Organizer, Bob Kearney will be in Portland, Corvallis and Eugene from October 27-29. Kearney will brief us on the Istook school prayer amendment, which will be of critical importance this fall in Congress.

Rep. Ernest Istook, (R-OK), chief sponsor of the so-called "Religious Freedom Amendment", has described the constitutional wall that separates church and state as "needlessly high." He is offering this amendment to bring religous prayer, symbols and heritage back into public life in America.

In the past, school prayer amendments have suffered from infighting by groups who agreed that such an amendment was needed but disagreed on the wording. This year, many of these factions have united behind the Istook amendment, giving the proposal dangerous new potential.

Kearney will speak about the Istook amendment and other critical Congressional issues in Portland on the evening of October 27th, in Corvallis on the evening of October 28th and Eugene on the evening of October 29th. Call the Portland or Eugene offices for more information and the exact location and time. Bring friends who want to hear about congressional threats to civil liberties and want to know how to get active.



ACLU friends have realized that including the ACLU Foundation of Oregon in their wills is a convenient and meaningful way to continue the financial support they have provided throughout their lives. If you would like to learn more about providing a charitable bequest for the ACLU, contact our associate director, Jann Carson at (503) 227-3186.


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Copyright 1997 ACLU Oregon