Earlier this month, the American Civil Liberties Union filed a lawsuit against the Medford Police Department alleging “unlawful police surveillance.”

That same week, lawyers representing the Oregon Department of Justice filed a motion to dismiss a lawsuit surrounding the legality of a law enforcement data clearinghouse known as Oregon Project TITAN.

The TITAN lawsuit, first filed nearly three years ago by the NYU School of Law’s Policing Project on behalf of former Jordan Cove pipeline protesters, alleges that demonstrators’ rights were violated by an “unauthorized and unaccountable domestic intelligence program.” The protestors included former Phoenix City Councilor Sarah Westover and environmental groups such as Rogue Climate.

Lawyers representing the state Department of Justice filed a motion for dismissal on Aug. 19 that “assume(d) the truth of the allegations,” before casting the allegations aside to make purely legal arguments.

“To determine that legal authority exists, the court must look to Oregon law, not to whether ODOJ may have exceeded its authority in past individual cases,” the DOJ’s motion for dismissal states.

While far from carbon copies of each other, the 2021 civil rights suit on behalf of pipeline protesters has threads in common with the lawsuit filed Aug. 20 by the ACLU against Medford police on behalf of progressive “unincorporated association” Rogue Valley Pepper Shakers, nonprofit Stabbin Wagon and former Stabbin Wagon executive director Melissa Jones.

Both involve claims of “spying” on progressive organizations and left-leaning demonstrations, and claims that the two agencies collected, retained and analyzed information about law-abiding individuals — the DOJ through its Project TITAN criminal information clearinghouse shared with agencies that include the Coos County Sheriff’s Office, the public relations team of Canadian energy company Pembina which backed the project, and Medford police through alleged “dossiers” with information compiled by crime analysts using fake social media accounts.

A civil rights law spawned half a century ago by police ‘spying’ 

Both the ACLU and Policing Project lawsuits claim violations of the same Oregon statute: ORS 181A.250.

The law, passed in 1981 by the Oregon Legislature, prohibits law enforcement agencies from collecting or maintaining information about the political, religious or social views of any individual or group unless it “directly relates to an investigation of criminal activities” and there are reasonable grounds to suspect the person or group may be involved in criminal conduct.

“Oregon’s law is unique and is cited as a proper response to protect against the type of abuses that have happened repeatedly and may continue to happen,” an ACLU briefing paper on the law states.

The law’s origins date back to 1974, when the Portland Police Bureau disclosed that they had for decades been maintaining secret files “on dozens of lawful political organizations such as the ACLU of Oregon,” according to the ACLU briefing.

The ACLU obtained a copy of its Portland file in 1975 and found internal ACLU documents and news clippings. “Names had check marks and were underlined,” the briefing states.

It took several attempts before the law ultimately passed as an amendment to House Bill 1581, where Oregon senators passed the bill 26-0 and state representatives approved it 48-8.

Today, the law is codified in policy and procedure manuals across the state, including item 600.5 of Medford’s policy manual on the “Collection or Maintenance of Specific Information.”

“The collection or maintenance of information about the political, religious or social views, associations or activities of any individual group, association, organization, corporation, business or partnership shall occur only when the information directly relates to a criminal investigation and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct,” the policy states, listing the statute at the end.

Medford police lawsuit allegations

The ACLU lawsuit claims that the Medford Police Department “routinely violates ORS 181A.250 and its own policies.”

It cites documents showing that Medford police “systematically violated ORS 181A.250 by targeting civilian activists, advocates and grassroots organizations … for covert surveillance and monitoring, outside of any criminal investigation.”

The suit also details online sleuthing into protests and demonstrations, citing as one example an email a Medford detective sent a records specialist on June 15, 2020, with “Intel” as the subject line.

Detective Shannon Reynolds had tasked the records specialist to collect information on progressive groups’ plans for Juneteenth following the murder of George Floyd in Minneapolis. Reynolds said she had been “doing (her) own sneaking” on the topic. She assumed that then-records specialist Divya Fisher knew about the “Rise and Resist Southern Oregon Facebook page and (is) a member,” according to quotes of the messages in the ACLU suit.

“Fisher confirmed that she was a member of that group, meaning that Fisher had infiltrated a progressive group’s social media account for the express purpose of engaging in unlawful monitoring,” the ACLU suit states.

The lawsuit describes it as one of multiple alleged social media infiltrations. Others occurred in February 2021 ahead of the murder trial of George Floyd’s killer, Derek Chauvin, and in May 2022 ahead of a protest called “Bans OFF Our Bodies” protesting the leaked early draft of the U.S. Supreme Court opinion overturning Roe v. Wade.

Elsewhere it claims that Medford police kept a “dossier” of Rogue Valley Pepper Shakers’ political activity, including social media posts from December 2020 through June 2022.

As one example, the ACLU suit describes Medford police monitoring personal pages of members and the RV Pepper Shakers’ Instagram spreading the word about a demonstration at 6 p.m. June 24 after the Supreme Court ruling.

“MPD noted that despite tracking the event being shared ’99 times’ across personal pages and some groups, it had identified ‘only one’ concerning comment by someone with ‘limited priors,'” the ACLU states.

“Nothing in the above posts relates to any criminal activity by or legitimate criminal investigation regarding the Rogue Valley Pepper Shakers or its members,” the ACLU lawsuit states. It describes the “common denominator” among the dossier’s screen captures as the organization’s “provocative but constitutionally protected political activity, viewpoints and associations,” which it says is “protected activity under the first Amendment and ORS.”

The city’s response

When reached for comment, Medford City Attorney Eric Mitton provided a statement clarifying “misconceptions” about the police department’s social media practices.

Mitton said that ORS 181A.250 focuses on information-gathering related to political, religious and social views.

“The purpose of reviewing publicly-available information on social media channels is not to analyze or judge individuals’ political, religious or social views, but to address legitimate police interests regarding public rallies and protests,” the statement reads in part. Those concerns include potential traffic disruptions, “possible breaches of peace,” potential conflicts between protesters and counter-protesters and risks of property damage or violence.

The city uses as one example how police were able to reroute traffic and mitigate conflicts between protesters and counter-protesters on June 1, 2020, to “exemplify why being prepared is essential.” It further states that the police department’s goal is “to ensure preparedness for any worst-case scenarios to protect community safety.”

Medford police Chief Justin Ivens said in the statement that the police department “upholds the constitutional rights of our citizens.”

“We use publicly accessible information to plan and staff events impacting public safety,” Ivens said. “This ensures our ability to address potential safety concerns while safeguarding those exercising their constitutional right to free speech.”

The city highlighted a July 2020 KTVL-TV news report in which District Attorney Beth Heckert praised Medford police’s work mitigating the conflicts between racial justice demonstrators and counter-demonstrators.

“Medford police did an excellent job, having a presence, to keep the protests peaceful on June 1, 2020,” Heckert wrote. “They intervened when necessary but did not cite other individuals for disorderly conduct or obstructing traffic throughout the entirety of the protest.”

Oregon TITAN Fusion

Oregon TITAN Fusion is part of a national network of more than 80 fusion centers across the country tasked with analyzing, retaining and distributing “threat-related” information between federal, state, local and tribal agencies, according to the Policing Project complaint filed in December 2021. It was formed as an effort to foster communication about terrorism threats based on guidance and lessons learned from the 9/11 Commission Report.

According to the Oregon TITAN Fusion Center website, fusion centers “(p)rotect civil liberties and privacy interests of American citizens throughout the intelligence process keying in on behaviors and not race, sex, religion, gender, etc.”

The lawsuit filed by the Policing Project, however, is suing the Oregon Department of Justice on claims that its Oregon TITAN Fusion Center domestic intelligence program is “ultra vires” — that is, beyond the state’s legal power.

“TITAN’s intelligence operations targeting lawful, peaceful and constitutionally protected activities … are the foreseeable result of TITAN’s unlawful insulation from legislative accountability,” the lawsuit states.

The Policing Project lawsuit cites documents first made public in a 2019 article in The Guardian headlined “Revealed: anti-terror center helped police track environmental activists,” which detailed a trove of emails from the Coos County Sheriff’s Office monitoring pipeline protests in the late 2010s.

The suit claims that the fusion center collected, retained, analyzed and distributed “intelligence” on plaintiffs that include Klamath Tribes members Ka’ila Farrell-Smith and Rowena Jackson, Phoenix community organizer Sarah Westover and Oregon Women’s Land Trust president Rosemary Francis Eatherington — all of whom organized demonstrations opposing the since-thwarted Jordan Cove natural gas pipeline.  

As one example of an email obtained through The Guardian’s records request, a Coos County sheriff’s deputy reported to a TITAN analyst that, “as promised,” he was tracking attendance of a rally and public hearing focused on stopping the Jordan Cove project “despite a lack of a criminal nexus,” according to the lawsuit. 

“The Deputy goes on to report that the event is sponsored by Rogue Climate, No LNG Exports and Citizens Against LNG, before adding, alarmingly, that ‘most of the names’ of individuals who RSVP’d to the event on social media ‘were recognized,'” the lawsuit states.

The lawsuit claims that the monitoring of pipeline protesters since at least 2015 violated their civil liberties.

“TITAN’s activities violate Plaintiffs’ liberty interest in participating in society, including through the exercise of their constitutional rights, without being the subject of a state law enforcement agency’s ‘ultra vires’ intelligence operations,” the lawsuit states. 

It asks a judge to declare that Oregon TITAN Fusion exceeds the authority of the Oregon DOJ, that the fusion center destroy and expunge all records related to the plaintiffs and the organizations where they work, and that the state compensate them for their costs and attorney’s fees.

Oregon DOJ response

An email Tuesday to the Oregon attorney general’s spokesman seeking comment on the lawsuit was not returned, but lawyers representing the state with Portland firm Cable Huston LLP argue in the Aug. 19 motion for dismissal claim that the DOJ created the TITAN Fusion Center program “to organize various functions that the legislature has explicitly or implicitly authorized the DOJ to perform.”

The motion does not dispute the allegations, but leans on a variety of legal arguments seeking the case’s dismissal.

“For purposes of this motion only, the State Defendants assume the truth of the allegations in the Complaint,” a footnote in the motion reads. “The State Defendants do not concede the truth of these allegations generally.”

It argues that injury alone isn’t enough for legal standing, and that the pipeline protesters do not allege they are the subject of any ongoing monitoring related to Jordan Cove protests.

“As Plaintiffs concede, the Jordan Cove Project has been dead for nearly three years. … Plaintiffs allege no facts suggesting that ODOJ’s fusion center program is causing them present harm,” lawyers for the DOJ argue in a separate effort to dispute the protesters’ legal standing.

It also argues that the request to cease operation of the Oregon TITAN Fusion program “would essentially be an order that ODOJ reorganize itself.

“Such an order would not have a practical effect on plaintiff’s rights,” the motion states.

As of Thursday, the case was still pending. Should the motion for dismissal be denied, a filing this week indicates that the Policing Project’s lawyers intend to file a motion with new details about Oregon TITAN Fusion Center in order to seek summary judgment.

An Aug. 26 filing also indicates that both parties recently engaged in a deposition of the Oregon TITAN Fusion Center director within the past week, and that they anticipate depositions of at least two former Department of Justice employees in the second week of October.