ACLU Partner Attorney Fighting Secret List

From Matt Davis at the Portland Mercury, January 7 2008

I’ve been at Multnomah Circuit Court all day watching hot-poop attorney Elden Rosenthal fight the city of Portland’s controversial secret list program on constitutional grounds, as a partner attorney to the ACLU of Oregon.

The list targets the top 35 arrestees in Portland on a quarterly basis, adding their names to a master list of 350 names. There is no way for people on the list to know that they are on the list, and there is no way for them to challenge their status on the list, even though their presence on it means they’ll be charged more seriously for the same crimes than people who aren’t on the list. You could even be on it, and you wouldn’t know.

Rosenthal is presenting constitutional arguments against the secret list before Judge Dale Koch, in partnership with three defense attorneys for three separate people who are presumed to have been charged with felonies instead of misdemeanors because they are on the list. Today Rosenthal grilled Jeff Myers, the cop who came up with the idea for the list back in 2003, for two hours on the details of the program. Myers, who has been on vacation for three weeks, had been hoping to hit the slopes today, and had to come in especially to answer Rosenthal’s questions. He didn’t look too pleased, although no photographs were allowed in the courtroom today.

There’ll be more details in the paper next week, and the hearing continues tomorrow. It’s unclear when Koch will make a constitutional ruling, but we’ll keep you posted.

Jeff Myers

Jeff Myers

A similar list, which named alleged gang members, was successfully challenged in Portland’s courts in 1994, with the city undertaking to inform people on the list of their named status so that they could hold hearings to appeal an officer’s decision to place them on the list. Evidently, nobody at the City Attorney’s office, Police Bureau or District Attorney’s office learned anything from this experience.

To describe Rosenthal as an attorney with impressive credentials would not do him justice. He served as co-counsel in a landmark federal lawsuit in 1991, suing Tom Metzger, leader of the White Aryan Resistance, for $12.5 million in civil damages for inciting members of his organization to violence leading to the death of Mulugeta Seraw, a black Ethiopian. You can read more about that incident in my write-up for our best of 1988 issue, here. Rosenthal quoted from a transcript of a Mercury interview with Myers and the list program’s manager, Bill Sinnott, in court today.

The Mercury first wrote about the NLCEP list last April, when it emerged that 52 percent of those on the then 408-strong list were African American, while African Americans make up six percent of the local population [“Blacklisted,” News, April 24]. But then last May, the Mercury discovered that despite the city’s effort and a considerable amount of money being invested in the program, the criteria for getting on and off the NLCEP list isn’t written down anywhere [“The Policy that Wasn’t There,” News, May 22].

Since then City Commissioner Randy Leonard, the list’s primary cheerleader on council, has withdrawn all public interest in the program. City Commissioner Dan Saltzman has expressed support for it in the Tribune, however, making no mention of the constitutional challenges.

READ – Portland Police ‘most arrested’ list faces ACLU challenge, Oregonian, January 7 2009
READ – ACLU challenges Portland police over secret list,, January 8 2009

OUR COMMENT – We’re following this story because we’re concerned the implied rational for keeping a list of prospective criminals used by the police secret is to protect those individuals’ anonymity or medical confidentiality. This is bogus. The implied intention of the program is to force a set of difficult individuals into mental health or addiction treatment. To date there’s been no actual record of these treatments occurring, much less whether the keeping a secret list causes a positive treatment outcome. We’re concerned civil liberties have been jeopardized in exchange for a panicky response to the state and county not providing sufficient treatment resources.

If the police – as a group or as individuals – are sincere in their desire to help people, they would join with organizations like the Mental Health Association of Portland and the National Mental Health Association of Oregon to make mental health and drug treatment a top priority at the Oregon State Legislature. To date, they haven’t.