Friday, October 12, 2007

On a Friday?

Apparently there is going to be a protest at the local Social Security Administration building in Portland today. Several groups are upset about the "no match" rule that says if your name doesn't match your SSN on your I-9 form then you can't work.

This is much like you can't claim dependents on your tax form if their name doesn't match their SSN.

Since this is happening during a weekday I'm guessing that most of these protesters don't have jobs and thus don't worry much about their names and Socials but some of you who are going to work today might be supporting this. If you see your Union on the list then it's time for you to be upset:

Supported by the Portland Immigrant Rights Coalition, including VOZ Workers' Rights Education Project, CAUSA, Jobs with Justice, PCASC, AFSC, SEIU Local 503, SEIU Local 49, AFSCME Council 75, Latino Network, Oregon Farm Worker Ministry, Center for Intercultural Organizing, PCUN, Hermandad Mexicana, Social Activist Youth, Escuela de Lideres "Magdalena Mora," Jefferson Center; in conjunction with national calls to action by the National Day Laborer Organizing Network, the National Network for Immigrant and Refugee Rights, and the We Are America Alliance.
Indymedia LINK

63 comments:

Anonymous said...

Since this is happening during a weekday I'm guessing that most of these protesters don't have jobs ...

Should we assume the same about you every time you talk about something you heard on Lars Larson, which airs 11 am - 3 pm weekdays?

eddie said...

Oh no, it's Mr. Anonymous: "I can't dispute the facts, so I'm going to attack the commentator" again.

Quick, one of you better paste the whole site in a comment. That'll win support.

Anthony DeLucca said...

Hmmmm...If your name and social security number do not match.....I'm guessing that, oh I don't know, maybe, just maybe, YOU HAVE A PHONY SSN! This of course violates the law, and why would you protest the fact that you cannot work with a fraudulent SSN?

Now again, just guessing here, but based on the names of the protest supporters (Hermanadad Mexicana, Escuela de Lideres "Magdalena Mora", National Day Labor Organizing Network, National Network for Immigrant and Refugee Rights) I can only come to the conclusion we are talking about ILLEGAL IMMIGRANTS being the majority of folks that are griping about this.

Why do I say that? Well, if you are here legally, you won't need to have a bogus SSN to get work. You'll have the proper paperwork that allows you to legally work in the U.S.

Anyone who thinks that it's o.k. to use a false SSN (after all, they just want to work right?) ought to talk to the people who are victims of ID theft, who are on SSN disability. When they stop receiving their SSN check because they have been "working" at the landscaping company six states away, and are earning too much money to still be authorized their SSN check. Imagine the hardships caused to those people because some shitbag with no regard for anyone except themselves thought it would be OK to get a phony SSN and go to work.

Screw 'em. I say lets get ICE to show up at the protest and see who is really there protesting.

Oh, and anon 7:19...it's called a radio. they are portable and you are allowed to listen to them in most work places.

Anonymous said...

Funny how all those so called groups look like they support the illegals, the lawbreakers amongst us. Yeah those who have the time, the money, and the inclination to get fake papers and SSN's and would have better spent their time trying to do it legally. Hey maybe the world, or this little corner of it would have had more respect for them. I know that I would if they would do it like the rest of us poor slobs do. Get up, go to your job legally, and make a legal living. Not break the law, commit identity theft, amongst a whole range of other infractions, just in the so called name of "I just want to make a living". I am so sick and tired of hearing that these people are just doing the jobs that Americans can't/won't do. I think that is such a cop out. How many Americans knowingly break the law in an effort to get fake identification to work in this country? Would we be allowed to pull this crap in Mexico? No, not in a second, but hey it is how it is done. Welcome to the People's Reublic of Mexico, folks!

Mr. Anonymous said...

Eddie: The FACT I specifically addressed is the FACT that Daniel built into his argument the assumption that "most" of the protesters in question (protesters whose cause he opposes ... this is important, more on that in a second) are unemployed (i.e., lazy). That is a FACT.

It is also a FACT that Daniel sometimes tells us about something he heard on Larson, and it is a FACT that Larson broadcasts the local show in the middle of what, for most people, are working hours. And while DeLucca apparently lives in a fantasyland where "most work places" allow employees to listen to the radio, it is a FACT that in the real world, most employers do NOT allow any such thing. I suggest that Mr. DeLucca contact the CEOs of Oregon's 10 biggest employers and ask them.

Another FACT: Daniel occasionally posts news here of upcoming protests for OFIR. While it is a FACT that many of these are held on weekends, it is also a FACT that some of them are on weekdays. By Daniel's "logic," we should obviously assume that any OFIR supporter attending a rally during the week doesn't have a job (and is therefore lazy, stupid, etc.)

Anonymous said...

Illegal Sentenced In 'A Christmas Story' Director's Death

The man who caused the crash on PCH that killed Robert Clark and his son gets a six-year prison term.
Friday, October 12, 2007
A man whose blood-alcohol level was three times the legal limit when his SUV slammed into a car on Pacific Coast Highway, killing film director Robert Clark and his son, has been sentenced to six years in state prison.



Hector Manuel Velazquez-Nava, 25, begged for forgiveness before he was sentenced.



Velazquez-Nava pleaded no contest to two counts of manslaughter in August in the deaths of Robert Clark and Ariel Hanrath-Clark.



Authorities said Velazquez-Nava, an illegal immigrant, had a blood-alcohol content of .24 at the time of the crash.



Robert Clark directed the holiday classic film "A Christmas Story.''

Anonymous said...

Drink and drive+take two lives=6 years. For an illegal? Then will California deport his sorry arse? Probably only as long as it takes to come back across the border, and while they are looking the other way. Sad commentary, isn't it?

Bobkatt said...

I suggest that most of these people do have jobs. It's just that their job is to obstruct any move to get this illegal invasion under control. Often it is the legal tax payer and union member that ends up supporting these scumbags.
Anyone that claims that this SSN match will effect a large number of legal workers is full of shit. If you are legal and don't match then straighten it out, you will have time. If you're not legal then go home.

ANTIKLAN said...

Daniel,

They are on the list and I am glad they are protesting it. So what?

As for people attending during the "work day", wouldn't it make sense that most businesses are against the no-match scheme would let their employees join in? I know a handful of businesses that do on a regulars basis.

Besides, maybe people work swing, or grave yard. Not everyone has banker hours.

antiklan said...

BTW: The other bigot referendum failed. Read 'em and weep!!! I am sure many of you closeted homosexuals will be ripping the arms off your blow-up mandolls tonight.

Second anti-gay effort fails

PORTLAND, Ore. (AP) - Oregon's Secretary of State has confirmed that the second of 2 anti-gay petitions has failed to qualify for the ballot.

According to the Elections Division, only 53,875 valid signatures were turned in on the petition to force a referendum on a recently passed law banning discrimination based on sexual orientation and gender identity.

To force a vote on the law, 55,179 valid signatures would have been needed.

Another petition targeting Oregon's new domestic partnership law failed earlier this week. Both laws will go into effect at the beginning of the year.

The anti-discrimination law prohibits discrimination in employment, housing and public accommodations such as restaurants.

The anti-gay activists behind the failed referendum effort have said they intend to file initiatives to repeal the laws. The groups would have until next July to collect about 82,000 signatures.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Moondoggie said...

We will not rest until Daniel Miglavs is treated like the hate-filled, neo-nazi racist ex-felon hypocrite that he is.

DANIEL: You're relentless and so are we. Hateful language and racist insults have their rewards, here's yours. Discuss the illegal alien issue in a mature, responsible, and gentlemanly way, minus the hate-filled racist insults, and we will stop. Have a nice day!

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DANIEL PAUL MIGLAVS,

Petitioner on Review.

(CC C000009CR, C000111CR; CA A111137 (Control), A111138; SC S50279)

On review from the Court of Appeals.*

Argued and submitted March 3, 2004.

Garrett A. Richardson, Portland, argued the cause and filed the brief for petitioner on review.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent on review. Julie A. Smith, Assistant Attorney General, filed the brief. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.**

DE MUNIZ, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Washington County Circuit Court, Timothy P. Alexander, Judge. 186 Or App 420, 63 P3d 1202 (2003).

**Kistler, J., did not participate in the consideration or decision of this case.

DE MUNIZ, J.

The issue in this criminal case is whether a police officer lawfully engaged in a precautionary patdown (1) of defendant in accordance with the officer safety rule set out in State v. Bates, 304 Or 519, 747 P2d 991 (1987). Because there were multiple charges against defendant arising out of separate police patdowns and a subsequent search of defendant's residence, we first set out the procedural history in some detail.

Defendant was charged with two counts of unlawful possession of a firearm based on evidence uncovered during a patdown (the patdown at issue here) conducted in August 1999. Defendant moved to suppress the evidence that the police discovered during that patdown. Following an evidentiary hearing, the trial court denied defendant's motion to suppress that evidence.

The same indictment also charged defendant with two other counts of unlawful possession of a firearm as a result of evidence uncovered in a patdown that the police conducted in September 1999. Defendant moved to suppress the evidence obtained as a result of that patdown, and the trial court granted that motion.

Finally, the police executed a search warrant at defendant's residence in December 1999 and seized evidence that led to defendant being charged separately with seven other weapon and drug-related crimes. Defendant moved to suppress that evidence as well, and the trial court denied that motion.

The court consolidated all charges and tried them at the same time. Defendant ultimately was convicted of two counts of unlawful possession of a firearm seized as a result of the August patdown and three counts of unlawful possession of a firearm seized during the December search of defendant's residence.

Defendant appealed, contending that the police had relied on the evidence that they discovered during the August patdown to obtain the search warrant that led to the discovery of the evidence seized during the December search of defendant's residence. A divided en banc Court of Appeals affirmed the trial court's rulings denying defendant's motions to suppress evidence discovered during the August patdown and the December search of his residence. State v. Miglavs, 186 Or App 420, 63 P3d 1202 (2003). We allowed defendant's petition for review. For the reasons that follow, we conclude that the August patdown was lawful and, therefore, affirm the trial court judgment and the decision of the Court of Appeals.

We take the following facts from the Court of Appeals majority opinion:

"Just after midnight in August 1999, Officer Brown, who was on patrol alone, saw defendant and another man standing outside a car, talking to a woman seated in the car, in the parking lot of an apartment complex in Beaverton. They were below an apartment overhang, which caused the area to be fairly dark. Because Brown suspected that all three individuals were under 18 years of age and possibly violating curfew, she approached the group. On approaching, she saw alcohol in the car. She asked for identification so that she could determine if any alcohol-related or curfew violations may have occurred. Defendant and the woman in the car gave Brown their identification, which she kept while she ran a records check on them. The other male said that he was 17 years old and gave his name and date of birth in lieu of other identification. The dispatcher reported that defendant was a possible runaway, but defendant told the officer that he had recently turned 18. He also told the officer that he lived in the apartment complex, even though his identification listed a different address. He was unwilling to tell the officer in which apartment he resided.

"Because she was on patrol alone, Brown called for backup while she was checking the ages and identities of the three individuals. Two backup officers arrived within a couple of minutes. By the time they arrived, Brown had determined that the driver of the car was 21 years old and therefore lawfully in possession of alcohol. She also had determined that defendant was 18 years old and therefore not violating curfew. Brown returned defendant's and the driver's identification to them, making no overture to cite or hold them. They were then free to go, but Brown did not expressly tell them that. They remained while Brown continued her investigation of the 17-year-old for a possible curfew violation.

"At that point, Brown was concerned for her personal safety and that of the backup officers. Defendant and his male companion were wearing distinctive clothing commonly associated with a gang called the '18th Street' gang. Typical of that gang, defendant had a shaved head and was wearing baggy tan pants and a baggy black shirt with the term '18th Street' printed on the back in large white letters. Defendant's companion also was wearing baggy gang-style clothes and had a three-dot tattoo under his eye that is associated with gang membership. The baggy style of the clothing concerned Brown because, in addition to signaling gang affiliation, the clothing permitted easy concealment of a weapon. Within the preceding year, Brown had come into contact with a similarly attired gang member in the parking lot of the same apartment complex who, on a patdown search, was found to have a weapon concealed in his waistband under his baggy clothing. Also, based on her training and experience more generally, Brown knew that members of the 18th Street gang commonly carry weapons--in particular, guns.

"One of the backup officers, Officer Cockreham, shared Brown's safety concerns. His concerns arose because of defendant's 18th Street gang-affiliated clothing, as well as the way in which defendant's shirt was draped over his waist. Cockreham had personally removed weapons from several 18th Street gang members in the same general area (i.e., along Allen Boulevard between Hall and King); one such encounter occurred 'just previously to this incident' and the weapon he found on the gang member was a gun. Brown directed Cockreham to patdown defendant for weapons. On doing so, Cockreham found a gun concealed in the waistband of defendant's pants."

186 Or App at 422-24 (footnote omitted).

In affirming the trial court's rulings denying defendant's motion to suppress the gun, the Court of Appeals majority relied on this court's earlier decision in Bates. There, this court held that

"Article I, section 9, of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present."

Id. at 524. The Court of Appeals majority began its analysis by characterizing the basis for the officers' particularized suspicion of defendant:

"The officers' safety concerns here were not stereotypical in the sense that they derived only from a generalized and oversimplified view of how all members of a broad group behave in all circumstances. Rather, Brown and Cockreham had particular training in and experience with members of a particular gang--the 18th Street gang--and its local activities. The officers, based on training and experience relating to that particular gang, knew that its local members commonly carried concealed weapons. They knew, moreover, that guns were often the weapon of choice for members of the 18th Street gang."

Miglavs, 186 Or App at 427 (emphasis in original). The court concluded that several factors contributed to the officers' reasonable fear for their safety:

"On whole, then, we have this: defendant was a likely member of not just an urban gang but of a particular gang known to operate in the area--the 18th Street gang--whose local members commonly carry guns; he was wearing clothes that could have concealed a gun; the officers had both longer-term and very recent experience with members of the 18th Street gang in the area who were armed with concealed weapons; it was late; it was dark; and defendant chose to protract the encounter with the officers. The totality of what the officers knew and the circumstances with which they were confronted went beyond a generalized understanding of the practices of urban gangs and encompassed a specific and particularized reality as to defendant and the 18th Street gang, of which defendant was a likely member."

Id. at 428. The court thus affirmed defendant's convictions.

Judge Haselton agreed with the majority, but wrote separately to clarify that the court's decision did "not authorize 'officer safety' searches based solely on a citizen's 'suspicious' appearance or possible association with a potentially dangerous group." Id. at 435 (Haselton, J., concurring). He further explained that "our holding does not write a blank check for 'officer safety' patdowns resulting from officer-initiated contacts with young men or women wearing 'gang style' clothing." Id. (Haselton, J., concurring).

Judge Edmonds and Judge Armstrong dissented in separate opinions. Judge Edmonds asserted that the constitutional right to associate requires that the constitutional protections against unreasonable searches and seizures apply equally to "those who belong to gangs, wear baggy gang-related clothing, or identify with groups known to be violent" as they do to others. Id. (Edmonds, J., dissenting). He opined that defendant's decision to remain at the scene after Brown concluded her investigation of him was the only fact that could have contributed to her concern that defendant might pose an immediate threat to her safety or that of others. Id. at 436 (Edmonds, J., dissenting). But that fact, Judge Edmonds asserted, was of little significance in light of defendant's cooperative attitude and the fact that Brown did not tell him that he was free to leave. Id. (Edmonds, J., dissenting). Judge Edmonds further posited that Brown's failure to direct defendant to leave indicated that she did not perceive defendant to be a greater threat at the end of the investigation than she had at the beginning. Id. (Edmonds, J., dissenting). According to Judge Edmonds, the majority's decision would permit the police to patdown "any person dressed in gang attire and present in a mall or other public place * * * even in the absence of individualized suspicion[,]" contrary to Article I, section 9, of the Oregon Constitution. (2) Id. at 436-37 (Edmonds, J., dissenting).

Judge Armstrong similarly believed that the officers' knowledge that defendant was a member of the 18th Street gang, and their prior experiences with that gang, were not "sufficient to give the officers a reasonable basis to believe that defendant was a member of the 18th Street gang who, because of that membership, was reasonably likely to be carrying a gun." Id. at 439 (Armstrong, J., dissenting). He also could not discern a difference between the officers' knowledge that defendant was a member of a particular gang that was known to carry guns and their knowledge that members of a particular type of gang carry guns. Id. at 440 (Armstrong, J., dissenting). "In either case" Judge Armstrong observed, "the state seeks to rely on a syllogism that people of a particular group often carry weapons, that the defendant appears to be a member of that group, and that it is therefore reasonable to suspect that the defendant is carrying a weapon." Id. (Armstrong, J., dissenting). He noted further, as did Judge Edmonds, that Brown did not have a reason to fear for her safety because defendant was cooperative and because Brown had not waited for the backup officers to arrive to conduct her investigation of the three individuals. Id. at 440-41 (Armstrong, J., dissenting). In Judge Armstrong's view, defendant's failure to leave when Brown returned defendant's identification was of no significance because Brown should have understood that defendant merely wished to resume his encounter with his friends. Id. at 441-42 (Armstrong, J., dissenting).

In this court, defendant relies on the dissenting opinions by Judge Edmonds and Judge Armstrong and argues that the Court of Appeals majority erred in its application of the Bates rule because Brown did not have a particularized suspicion that defendant was armed and might pose a threat to the officers' safety. He observes that, when Brown had concluded her investigation of defendant, she did not tell him that he was free to leave, from which he argues that his failure to leave should not have contributed to Brown's safety concerns. He notes further that he was "cooperative and unthreatening" and, thus, should not have made the officers feel that he presented an immediate risk to their safety.

The state responds that this court needs to decide only whether "the officers' belief that defendant might be armed and dangerous [was] a reasonable one." In its view, "the officers reasonably believed that this defendant might pose an immediate threat primarily because he had expressly affiliated himself with a particular gang, the local members of which operate in the immediate vicinity and, in the officers' training and experience, often are armed." Further, the state argues, "[t]hat suspicion was sufficiently particularized because it was based on characteristics shared by a narrow and well-defined category of persons with whom the officers had specific experiences and about whom the officers had received training." For the reasons that follow, we agree with the state.

We begin with a review of Bates. In that case, a City of Eugene police officer stopped the defendant for "'excessive vehicle emissions'" at 4:40 a.m. Id. at 521. The stop occurred in a "'high crime'" area and the officer called for assistance. Id. Two officers approached the defendant's vehicle and one officer asked for the defendant's driver license. Id. The officers noticed that there was a "television and a videocassette recorder [VCR]" on the back seat of the defendant's vehicle. Id. One officer also noticed "an object on the floorboard between [the] defendant's feet." Id. The other officer also took note of the object and "'asked [the defendant] if he would reach down and very cautiously pull that item from between his feet," so that the officer could see what it was. Id. The defendant refused and instead "reached under the seat and remained in that position" while the officer repeatedly asked him to pull the item into plain view. Id. The officer then pulled his gun and ordered the defendant to step out of the car. Id. The officer then obtained the bag from under the seat, felt something hard inside, opened it, and discovered "several rounds of live ammunition, drugs, and drug paraphernalia." Id. at 522.

The court began its analysis by noting the state's reliance on the Supreme Court's analysis of officer safety searches in Michigan v. Long, 463 US 1032, 103 S Ct 3469, 77 L Ed 2d 1201 (1983), and this court's own previous analysis in State v. Riley, 240 Or 521, 402 P2d 741 (1965), in which the court had acknowledged that "police officers are entitled to take steps reasonably necessary to their safety." Bates, 304 Or at 523. The court then held, as set out above, that Article I, section 9, of the Oregon Constitution "does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion" that the suspect "might pose" a danger to the officer or others. Id. at 524. The court explained that

"it is not [this court's] function to uncharitably second-guess an officer's judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made."

Id. at 524-25 (emphasis added). See also State v. Amaya, __ Or ___, ___ P3d ___ (April 29, 2004) (same).

The Bates court concluded, however, that the officers had exceeded the permissible bounds of the rule. Id. at 525-26. It reached that result by assessing the significance of each factor that the officer identified as contributing to his conclusion that the defendant posed an immediate threat. Id. The officer testified that the vehicle's out-of-state license plates, the time of day, the high crime area, the defendant's appearance, the fact that there was a television and a VCR on the back seat of the defendant's vehicle, and the fact that the defendant did not comply with the officer's instruction to pull into plain view the item that he could not see fully, all contributed to his concern about the defendant's possible dangerousness. Id. at 525.

This court, however, concluded that none of the identified factors, even when considered collectively, supported a reasonable suspicion that the defendant posed an immediate threat to the officers' safety. The court observed that the suspicions of the officer who ordered the defendant out of the car

"may have been an excellent guess–-the kind resulting from a sixth sense that many officers develop over the years. But, again, there is no objective quality to them that entitles them to any weight, either individually or collectively, in the constitutional calculus. Neither the hour nor the 'high crime' nature of the area tells us whether this defendant is likely to be a criminal, unless there is some reason to think that everyone driving in that particular area at that time of night is up to no good[.]"

Id. at 526 (emphasis in original). As in Bates, our inquiry in this case is limited to whether the precautionary patdown was reasonable under the circumstances as they reasonably appeared at that time.

Here, the officers testified that the following factors contributed to their determination that defendant might pose an immediate threat to their safety: (1) defendant "was wearing bagg[y] tan pants and a black bagg[y] shirt that had '18th' written on the back of the shirt in large white letters[,]" (3) which the officers associated with the attire of 18th Street gang members; (2) the young man with defendant also had a gang-related tattoo consisting of three dots in the shape of a triangle that Officer Brown knew meant "'[m]i vida loca'" or "'my crazy life' in English" and his shirt also had the number 18 on it; (3) both defendant and the man with him were wearing, "untucked[,]" "extremely bagg[y clothing that] could easily conceal weapons"; (4) the officers knew that 18th Street gang members operated in the vicinity of the encounter and that they carried guns; (5) Officer Cockreham personally removed weapons from several 18th Street gang members and had, just previously to this incident, had removed a gun from an 18th Street gang member; and (6) neither defendant nor the woman in the car chose to leave after Brown returned their identification.

Before evaluating the factors described above, we first address defendant's argument that his cooperative attitude and lack of suspicious behavior was sufficient to dispel any concerns that the officers had for their safety. Defendant is correct that those circumstances must be considered in the overall assessment of the reasonableness of the officers' decision to engage in the patdown. However, defendant's attitude and demeanor are just two circumstances that the officers and, ultimately, this court must consider in determining whether the totality of the circumstances justified the decision to engage in a precautionary patdown. See State v. Ehly, 317 Or 66, 83, 854 P2d 421 (1993) ("totality of the circumstances" are considered in determining whether officer's suspicion was reasonable). As we now explain, those countervailing circumstances, considered in light of the totality of the circumstances, are not sufficient to dispel the reasonableness of the officers' particularized suspicion that defendant might have posed a danger to their safety.

Under Bates, a limited precautionary patdown is authorized under Article I, section 9, only when the initial contact between the police and the individual is lawful. Here, defendant concedes that Brown was engaged in a lawful contact with defendant. Brown had approached the vehicle to investigate possible curfew, and later, alcohol violations. She requested defendant's identification and, upon concluding her investigation, promptly returned defendant's identification to him. In other words, as noted previously, the police contact was not initiated solely (or at all) because defendant and his companion were wearing gang attire.

Next, Bates requires an evaluation whether the factors that the officers claim supported their belief that defendant might pose an immediate threat to their safety are sufficiently particularized to defendant as required under Article I, section 9. This court repeatedly has explained that a person's appearance alone never can support a reasonable suspicion of unlawful activity. See State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977) (explaining that "shined shoes, sharp clothes, neat 'Afro' haircuts and people who stand and stare at officers" cannot say much about those people engaging in criminal activity); Bates, 304 Or at 525 (explaining that fact that defendant was "an 'Indian' with long hair and beard" wearing black leather jacket could not support reasonable suspicion to believe that he was dangerous). A police officer's suspicion must be particularized to the individual based on the individual's own conduct. State v. Stanley, 325 Or 239, 245-46, 935 P2d 1202 (1997); Bates, 304 Or at 525; Valdez, 277 Or at 628. Regardless of the officers' belief that gang members wear baggy clothing, that type of clothing alone could not support a reasonable suspicion that defendant posed a risk to the officers' safety. That is, nothing about such attire alone could tell the officers anything about defendant, except that he liked to wear baggy clothing. Nevertheless, a particular style of attire may be a circumstance that, when considered in the overall context or totality of the circumstances of a police-citizen contact, contributes to the reasonableness of an officer's safety assessment.

Similarly, clothing that announces a gang affiliation does not, by itself, give rise to the kind of individualized suspicion of a safety threat required under Article I, section 9. However, officers reasonably may draw inferences about human behavior from their training and experience. See Stanley, 325 Or at 246-46 (in officer's experience, people who commit robberies often are armed); Ehly, 317 Or at 80-81 (in officer's experience, drug users often are armed). In this instance, the officers knew from training and recent personal experience that the gang identified on defendant's shirt operated in the immediate vicinity of the contact and that members of that gang carried weapons. Furthermore, one of the officers recently had removed a gun from one of the members of that gang. Under those circumstances, the officers' safety concerns regarding defendant were not based solely on generalized or stereotypical information about gang behavior but, instead, were sufficiently particularized, based on specific training about and recent personal experience with a narrowly identified group, viz., members of the local gang to which defendant and his male companion proclaimed their allegiance and which operated in the area where the officers encountered defendant.

Finally, in addition to defendant's self-proclaimed gang membership and the officers' training and recent experience with other gang members, there are other factors that contribute to the reasonableness of the officers' safety concerns. First, the contact with defendant and his two companions occurred at a late hour in a darkened area in the general vicinity where one of the officers recently had encountered armed members of the 18th Street gang. Defendant was uncooperative during the initial investigation when he refused to reveal the location of his residence in the apartment complex. See Amaya, ___ Or at ___ (refusal to leave purse-like bag in vehicle when requested to do so was one factor that heightened officer's safety concern).

Second, although defendant was free to move from the immediate area after his identification was returned to him, he chose to remain in the area near where the police were conducting an ongoing investigation. When defendant remained in that close proximity to the officers, the officers' safety concerns reasonably were heightened because the officers needed to focus their attention on defendant's companion and were not able to watch defendant as closely as they could before that time. As this court explained in Bates:

"A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations."

Bates, 304 Or at 524 (emphasis added).

Here, the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them. That individualized suspicion justified the limited precautionary patdown of defendant that occurred in this case and did not violate defendant's protection against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DANIEL PAUL MIGLAVS,

Petitioner on Review.

(CC C000009CR, C000111CR; CA A111137 (Control), A111138; SC S50279)

On review from the Court of Appeals.*

Argued and submitted March 3, 2004.

Garrett A. Richardson, Portland, argued the cause and filed the brief for petitioner on review.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent on review. Julie A. Smith, Assistant Attorney General, filed the brief. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.**

DE MUNIZ, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Washington County Circuit Court, Timothy P. Alexander, Judge. 186 Or App 420, 63 P3d 1202 (2003).

**Kistler, J., did not participate in the consideration or decision of this case.

DE MUNIZ, J.

The issue in this criminal case is whether a police officer lawfully engaged in a precautionary patdown (1) of defendant in accordance with the officer safety rule set out in State v. Bates, 304 Or 519, 747 P2d 991 (1987). Because there were multiple charges against defendant arising out of separate police patdowns and a subsequent search of defendant's residence, we first set out the procedural history in some detail.

Defendant was charged with two counts of unlawful possession of a firearm based on evidence uncovered during a patdown (the patdown at issue here) conducted in August 1999. Defendant moved to suppress the evidence that the police discovered during that patdown. Following an evidentiary hearing, the trial court denied defendant's motion to suppress that evidence.

The same indictment also charged defendant with two other counts of unlawful possession of a firearm as a result of evidence uncovered in a patdown that the police conducted in September 1999. Defendant moved to suppress the evidence obtained as a result of that patdown, and the trial court granted that motion.

Finally, the police executed a search warrant at defendant's residence in December 1999 and seized evidence that led to defendant being charged separately with seven other weapon and drug-related crimes. Defendant moved to suppress that evidence as well, and the trial court denied that motion.

The court consolidated all charges and tried them at the same time. Defendant ultimately was convicted of two counts of unlawful possession of a firearm seized as a result of the August patdown and three counts of unlawful possession of a firearm seized during the December search of defendant's residence.

Defendant appealed, contending that the police had relied on the evidence that they discovered during the August patdown to obtain the search warrant that led to the discovery of the evidence seized during the December search of defendant's residence. A divided en banc Court of Appeals affirmed the trial court's rulings denying defendant's motions to suppress evidence discovered during the August patdown and the December search of his residence. State v. Miglavs, 186 Or App 420, 63 P3d 1202 (2003). We allowed defendant's petition for review. For the reasons that follow, we conclude that the August patdown was lawful and, therefore, affirm the trial court judgment and the decision of the Court of Appeals.

We take the following facts from the Court of Appeals majority opinion:

"Just after midnight in August 1999, Officer Brown, who was on patrol alone, saw defendant and another man standing outside a car, talking to a woman seated in the car, in the parking lot of an apartment complex in Beaverton. They were below an apartment overhang, which caused the area to be fairly dark. Because Brown suspected that all three individuals were under 18 years of age and possibly violating curfew, she approached the group. On approaching, she saw alcohol in the car. She asked for identification so that she could determine if any alcohol-related or curfew violations may have occurred. Defendant and the woman in the car gave Brown their identification, which she kept while she ran a records check on them. The other male said that he was 17 years old and gave his name and date of birth in lieu of other identification. The dispatcher reported that defendant was a possible runaway, but defendant told the officer that he had recently turned 18. He also told the officer that he lived in the apartment complex, even though his identification listed a different address. He was unwilling to tell the officer in which apartment he resided.

"Because she was on patrol alone, Brown called for backup while she was checking the ages and identities of the three individuals. Two backup officers arrived within a couple of minutes. By the time they arrived, Brown had determined that the driver of the car was 21 years old and therefore lawfully in possession of alcohol. She also had determined that defendant was 18 years old and therefore not violating curfew. Brown returned defendant's and the driver's identification to them, making no overture to cite or hold them. They were then free to go, but Brown did not expressly tell them that. They remained while Brown continued her investigation of the 17-year-old for a possible curfew violation.

"At that point, Brown was concerned for her personal safety and that of the backup officers. Defendant and his male companion were wearing distinctive clothing commonly associated with a gang called the '18th Street' gang. Typical of that gang, defendant had a shaved head and was wearing baggy tan pants and a baggy black shirt with the term '18th Street' printed on the back in large white letters. Defendant's companion also was wearing baggy gang-style clothes and had a three-dot tattoo under his eye that is associated with gang membership. The baggy style of the clothing concerned Brown because, in addition to signaling gang affiliation, the clothing permitted easy concealment of a weapon. Within the preceding year, Brown had come into contact with a similarly attired gang member in the parking lot of the same apartment complex who, on a patdown search, was found to have a weapon concealed in his waistband under his baggy clothing. Also, based on her training and experience more generally, Brown knew that members of the 18th Street gang commonly carry weapons--in particular, guns.

"One of the backup officers, Officer Cockreham, shared Brown's safety concerns. His concerns arose because of defendant's 18th Street gang-affiliated clothing, as well as the way in which defendant's shirt was draped over his waist. Cockreham had personally removed weapons from several 18th Street gang members in the same general area (i.e., along Allen Boulevard between Hall and King); one such encounter occurred 'just previously to this incident' and the weapon he found on the gang member was a gun. Brown directed Cockreham to patdown defendant for weapons. On doing so, Cockreham found a gun concealed in the waistband of defendant's pants."

186 Or App at 422-24 (footnote omitted).

In affirming the trial court's rulings denying defendant's motion to suppress the gun, the Court of Appeals majority relied on this court's earlier decision in Bates. There, this court held that

"Article I, section 9, of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present."

Id. at 524. The Court of Appeals majority began its analysis by characterizing the basis for the officers' particularized suspicion of defendant:

"The officers' safety concerns here were not stereotypical in the sense that they derived only from a generalized and oversimplified view of how all members of a broad group behave in all circumstances. Rather, Brown and Cockreham had particular training in and experience with members of a particular gang--the 18th Street gang--and its local activities. The officers, based on training and experience relating to that particular gang, knew that its local members commonly carried concealed weapons. They knew, moreover, that guns were often the weapon of choice for members of the 18th Street gang."

Miglavs, 186 Or App at 427 (emphasis in original). The court concluded that several factors contributed to the officers' reasonable fear for their safety:

"On whole, then, we have this: defendant was a likely member of not just an urban gang but of a particular gang known to operate in the area--the 18th Street gang--whose local members commonly carry guns; he was wearing clothes that could have concealed a gun; the officers had both longer-term and very recent experience with members of the 18th Street gang in the area who were armed with concealed weapons; it was late; it was dark; and defendant chose to protract the encounter with the officers. The totality of what the officers knew and the circumstances with which they were confronted went beyond a generalized understanding of the practices of urban gangs and encompassed a specific and particularized reality as to defendant and the 18th Street gang, of which defendant was a likely member."

Id. at 428. The court thus affirmed defendant's convictions.

Judge Haselton agreed with the majority, but wrote separately to clarify that the court's decision did "not authorize 'officer safety' searches based solely on a citizen's 'suspicious' appearance or possible association with a potentially dangerous group." Id. at 435 (Haselton, J., concurring). He further explained that "our holding does not write a blank check for 'officer safety' patdowns resulting from officer-initiated contacts with young men or women wearing 'gang style' clothing." Id. (Haselton, J., concurring).

Judge Edmonds and Judge Armstrong dissented in separate opinions. Judge Edmonds asserted that the constitutional right to associate requires that the constitutional protections against unreasonable searches and seizures apply equally to "those who belong to gangs, wear baggy gang-related clothing, or identify with groups known to be violent" as they do to others. Id. (Edmonds, J., dissenting). He opined that defendant's decision to remain at the scene after Brown concluded her investigation of him was the only fact that could have contributed to her concern that defendant might pose an immediate threat to her safety or that of others. Id. at 436 (Edmonds, J., dissenting). But that fact, Judge Edmonds asserted, was of little significance in light of defendant's cooperative attitude and the fact that Brown did not tell him that he was free to leave. Id. (Edmonds, J., dissenting). Judge Edmonds further posited that Brown's failure to direct defendant to leave indicated that she did not perceive defendant to be a greater threat at the end of the investigation than she had at the beginning. Id. (Edmonds, J., dissenting). According to Judge Edmonds, the majority's decision would permit the police to patdown "any person dressed in gang attire and present in a mall or other public place * * * even in the absence of individualized suspicion[,]" contrary to Article I, section 9, of the Oregon Constitution. (2) Id. at 436-37 (Edmonds, J., dissenting).

Judge Armstrong similarly believed that the officers' knowledge that defendant was a member of the 18th Street gang, and their prior experiences with that gang, were not "sufficient to give the officers a reasonable basis to believe that defendant was a member of the 18th Street gang who, because of that membership, was reasonably likely to be carrying a gun." Id. at 439 (Armstrong, J., dissenting). He also could not discern a difference between the officers' knowledge that defendant was a member of a particular gang that was known to carry guns and their knowledge that members of a particular type of gang carry guns. Id. at 440 (Armstrong, J., dissenting). "In either case" Judge Armstrong observed, "the state seeks to rely on a syllogism that people of a particular group often carry weapons, that the defendant appears to be a member of that group, and that it is therefore reasonable to suspect that the defendant is carrying a weapon." Id. (Armstrong, J., dissenting). He noted further, as did Judge Edmonds, that Brown did not have a reason to fear for her safety because defendant was cooperative and because Brown had not waited for the backup officers to arrive to conduct her investigation of the three individuals. Id. at 440-41 (Armstrong, J., dissenting). In Judge Armstrong's view, defendant's failure to leave when Brown returned defendant's identification was of no significance because Brown should have understood that defendant merely wished to resume his encounter with his friends. Id. at 441-42 (Armstrong, J., dissenting).

In this court, defendant relies on the dissenting opinions by Judge Edmonds and Judge Armstrong and argues that the Court of Appeals majority erred in its application of the Bates rule because Brown did not have a particularized suspicion that defendant was armed and might pose a threat to the officers' safety. He observes that, when Brown had concluded her investigation of defendant, she did not tell him that he was free to leave, from which he argues that his failure to leave should not have contributed to Brown's safety concerns. He notes further that he was "cooperative and unthreatening" and, thus, should not have made the officers feel that he presented an immediate risk to their safety.

The state responds that this court needs to decide only whether "the officers' belief that defendant might be armed and dangerous [was] a reasonable one." In its view, "the officers reasonably believed that this defendant might pose an immediate threat primarily because he had expressly affiliated himself with a particular gang, the local members of which operate in the immediate vicinity and, in the officers' training and experience, often are armed." Further, the state argues, "[t]hat suspicion was sufficiently particularized because it was based on characteristics shared by a narrow and well-defined category of persons with whom the officers had specific experiences and about whom the officers had received training." For the reasons that follow, we agree with the state.

We begin with a review of Bates. In that case, a City of Eugene police officer stopped the defendant for "'excessive vehicle emissions'" at 4:40 a.m. Id. at 521. The stop occurred in a "'high crime'" area and the officer called for assistance. Id. Two officers approached the defendant's vehicle and one officer asked for the defendant's driver license. Id. The officers noticed that there was a "television and a videocassette recorder [VCR]" on the back seat of the defendant's vehicle. Id. One officer also noticed "an object on the floorboard between [the] defendant's feet." Id. The other officer also took note of the object and "'asked [the defendant] if he would reach down and very cautiously pull that item from between his feet," so that the officer could see what it was. Id. The defendant refused and instead "reached under the seat and remained in that position" while the officer repeatedly asked him to pull the item into plain view. Id. The officer then pulled his gun and ordered the defendant to step out of the car. Id. The officer then obtained the bag from under the seat, felt something hard inside, opened it, and discovered "several rounds of live ammunition, drugs, and drug paraphernalia." Id. at 522.

The court began its analysis by noting the state's reliance on the Supreme Court's analysis of officer safety searches in Michigan v. Long, 463 US 1032, 103 S Ct 3469, 77 L Ed 2d 1201 (1983), and this court's own previous analysis in State v. Riley, 240 Or 521, 402 P2d 741 (1965), in which the court had acknowledged that "police officers are entitled to take steps reasonably necessary to their safety." Bates, 304 Or at 523. The court then held, as set out above, that Article I, section 9, of the Oregon Constitution "does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion" that the suspect "might pose" a danger to the officer or others. Id. at 524. The court explained that

"it is not [this court's] function to uncharitably second-guess an officer's judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made."

Id. at 524-25 (emphasis added). See also State v. Amaya, __ Or ___, ___ P3d ___ (April 29, 2004) (same).

The Bates court concluded, however, that the officers had exceeded the permissible bounds of the rule. Id. at 525-26. It reached that result by assessing the significance of each factor that the officer identified as contributing to his conclusion that the defendant posed an immediate threat. Id. The officer testified that the vehicle's out-of-state license plates, the time of day, the high crime area, the defendant's appearance, the fact that there was a television and a VCR on the back seat of the defendant's vehicle, and the fact that the defendant did not comply with the officer's instruction to pull into plain view the item that he could not see fully, all contributed to his concern about the defendant's possible dangerousness. Id. at 525.

This court, however, concluded that none of the identified factors, even when considered collectively, supported a reasonable suspicion that the defendant posed an immediate threat to the officers' safety. The court observed that the suspicions of the officer who ordered the defendant out of the car

"may have been an excellent guess–-the kind resulting from a sixth sense that many officers develop over the years. But, again, there is no objective quality to them that entitles them to any weight, either individually or collectively, in the constitutional calculus. Neither the hour nor the 'high crime' nature of the area tells us whether this defendant is likely to be a criminal, unless there is some reason to think that everyone driving in that particular area at that time of night is up to no good[.]"

Id. at 526 (emphasis in original). As in Bates, our inquiry in this case is limited to whether the precautionary patdown was reasonable under the circumstances as they reasonably appeared at that time.

Here, the officers testified that the following factors contributed to their determination that defendant might pose an immediate threat to their safety: (1) defendant "was wearing bagg[y] tan pants and a black bagg[y] shirt that had '18th' written on the back of the shirt in large white letters[,]" (3) which the officers associated with the attire of 18th Street gang members; (2) the young man with defendant also had a gang-related tattoo consisting of three dots in the shape of a triangle that Officer Brown knew meant "'[m]i vida loca'" or "'my crazy life' in English" and his shirt also had the number 18 on it; (3) both defendant and the man with him were wearing, "untucked[,]" "extremely bagg[y clothing that] could easily conceal weapons"; (4) the officers knew that 18th Street gang members operated in the vicinity of the encounter and that they carried guns; (5) Officer Cockreham personally removed weapons from several 18th Street gang members and had, just previously to this incident, had removed a gun from an 18th Street gang member; and (6) neither defendant nor the woman in the car chose to leave after Brown returned their identification.

Before evaluating the factors described above, we first address defendant's argument that his cooperative attitude and lack of suspicious behavior was sufficient to dispel any concerns that the officers had for their safety. Defendant is correct that those circumstances must be considered in the overall assessment of the reasonableness of the officers' decision to engage in the patdown. However, defendant's attitude and demeanor are just two circumstances that the officers and, ultimately, this court must consider in determining whether the totality of the circumstances justified the decision to engage in a precautionary patdown. See State v. Ehly, 317 Or 66, 83, 854 P2d 421 (1993) ("totality of the circumstances" are considered in determining whether officer's suspicion was reasonable). As we now explain, those countervailing circumstances, considered in light of the totality of the circumstances, are not sufficient to dispel the reasonableness of the officers' particularized suspicion that defendant might have posed a danger to their safety.

Under Bates, a limited precautionary patdown is authorized under Article I, section 9, only when the initial contact between the police and the individual is lawful. Here, defendant concedes that Brown was engaged in a lawful contact with defendant. Brown had approached the vehicle to investigate possible curfew, and later, alcohol violations. She requested defendant's identification and, upon concluding her investigation, promptly returned defendant's identification to him. In other words, as noted previously, the police contact was not initiated solely (or at all) because defendant and his companion were wearing gang attire.

Next, Bates requires an evaluation whether the factors that the officers claim supported their belief that defendant might pose an immediate threat to their safety are sufficiently particularized to defendant as required under Article I, section 9. This court repeatedly has explained that a person's appearance alone never can support a reasonable suspicion of unlawful activity. See State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977) (explaining that "shined shoes, sharp clothes, neat 'Afro' haircuts and people who stand and stare at officers" cannot say much about those people engaging in criminal activity); Bates, 304 Or at 525 (explaining that fact that defendant was "an 'Indian' with long hair and beard" wearing black leather jacket could not support reasonable suspicion to believe that he was dangerous). A police officer's suspicion must be particularized to the individual based on the individual's own conduct. State v. Stanley, 325 Or 239, 245-46, 935 P2d 1202 (1997); Bates, 304 Or at 525; Valdez, 277 Or at 628. Regardless of the officers' belief that gang members wear baggy clothing, that type of clothing alone could not support a reasonable suspicion that defendant posed a risk to the officers' safety. That is, nothing about such attire alone could tell the officers anything about defendant, except that he liked to wear baggy clothing. Nevertheless, a particular style of attire may be a circumstance that, when considered in the overall context or totality of the circumstances of a police-citizen contact, contributes to the reasonableness of an officer's safety assessment.

Similarly, clothing that announces a gang affiliation does not, by itself, give rise to the kind of individualized suspicion of a safety threat required under Article I, section 9. However, officers reasonably may draw inferences about human behavior from their training and experience. See Stanley, 325 Or at 246-46 (in officer's experience, people who commit robberies often are armed); Ehly, 317 Or at 80-81 (in officer's experience, drug users often are armed). In this instance, the officers knew from training and recent personal experience that the gang identified on defendant's shirt operated in the immediate vicinity of the contact and that members of that gang carried weapons. Furthermore, one of the officers recently had removed a gun from one of the members of that gang. Under those circumstances, the officers' safety concerns regarding defendant were not based solely on generalized or stereotypical information about gang behavior but, instead, were sufficiently particularized, based on specific training about and recent personal experience with a narrowly identified group, viz., members of the local gang to which defendant and his male companion proclaimed their allegiance and which operated in the area where the officers encountered defendant.

Finally, in addition to defendant's self-proclaimed gang membership and the officers' training and recent experience with other gang members, there are other factors that contribute to the reasonableness of the officers' safety concerns. First, the contact with defendant and his two companions occurred at a late hour in a darkened area in the general vicinity where one of the officers recently had encountered armed members of the 18th Street gang. Defendant was uncooperative during the initial investigation when he refused to reveal the location of his residence in the apartment complex. See Amaya, ___ Or at ___ (refusal to leave purse-like bag in vehicle when requested to do so was one factor that heightened officer's safety concern).

Second, although defendant was free to move from the immediate area after his identification was returned to him, he chose to remain in the area near where the police were conducting an ongoing investigation. When defendant remained in that close proximity to the officers, the officers' safety concerns reasonably were heightened because the officers needed to focus their attention on defendant's companion and were not able to watch defendant as closely as they could before that time. As this court explained in Bates:

"A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations."

Bates, 304 Or at 524 (emphasis added).

Here, the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them. That individualized suspicion justified the limited precautionary patdown of defendant that occurred in this case and did not violate defendant's protection against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DANIEL PAUL MIGLAVS,

Petitioner on Review.

(CC C000009CR, C000111CR; CA A111137 (Control), A111138; SC S50279)

On review from the Court of Appeals.*

Argued and submitted March 3, 2004.

Garrett A. Richardson, Portland, argued the cause and filed the brief for petitioner on review.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent on review. Julie A. Smith, Assistant Attorney General, filed the brief. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.**

DE MUNIZ, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Washington County Circuit Court, Timothy P. Alexander, Judge. 186 Or App 420, 63 P3d 1202 (2003).

**Kistler, J., did not participate in the consideration or decision of this case.

DE MUNIZ, J.

The issue in this criminal case is whether a police officer lawfully engaged in a precautionary patdown (1) of defendant in accordance with the officer safety rule set out in State v. Bates, 304 Or 519, 747 P2d 991 (1987). Because there were multiple charges against defendant arising out of separate police patdowns and a subsequent search of defendant's residence, we first set out the procedural history in some detail.

Defendant was charged with two counts of unlawful possession of a firearm based on evidence uncovered during a patdown (the patdown at issue here) conducted in August 1999. Defendant moved to suppress the evidence that the police discovered during that patdown. Following an evidentiary hearing, the trial court denied defendant's motion to suppress that evidence.

The same indictment also charged defendant with two other counts of unlawful possession of a firearm as a result of evidence uncovered in a patdown that the police conducted in September 1999. Defendant moved to suppress the evidence obtained as a result of that patdown, and the trial court granted that motion.

Finally, the police executed a search warrant at defendant's residence in December 1999 and seized evidence that led to defendant being charged separately with seven other weapon and drug-related crimes. Defendant moved to suppress that evidence as well, and the trial court denied that motion.

The court consolidated all charges and tried them at the same time. Defendant ultimately was convicted of two counts of unlawful possession of a firearm seized as a result of the August patdown and three counts of unlawful possession of a firearm seized during the December search of defendant's residence.

Defendant appealed, contending that the police had relied on the evidence that they discovered during the August patdown to obtain the search warrant that led to the discovery of the evidence seized during the December search of defendant's residence. A divided en banc Court of Appeals affirmed the trial court's rulings denying defendant's motions to suppress evidence discovered during the August patdown and the December search of his residence. State v. Miglavs, 186 Or App 420, 63 P3d 1202 (2003). We allowed defendant's petition for review. For the reasons that follow, we conclude that the August patdown was lawful and, therefore, affirm the trial court judgment and the decision of the Court of Appeals.

We take the following facts from the Court of Appeals majority opinion:

"Just after midnight in August 1999, Officer Brown, who was on patrol alone, saw defendant and another man standing outside a car, talking to a woman seated in the car, in the parking lot of an apartment complex in Beaverton. They were below an apartment overhang, which caused the area to be fairly dark. Because Brown suspected that all three individuals were under 18 years of age and possibly violating curfew, she approached the group. On approaching, she saw alcohol in the car. She asked for identification so that she could determine if any alcohol-related or curfew violations may have occurred. Defendant and the woman in the car gave Brown their identification, which she kept while she ran a records check on them. The other male said that he was 17 years old and gave his name and date of birth in lieu of other identification. The dispatcher reported that defendant was a possible runaway, but defendant told the officer that he had recently turned 18. He also told the officer that he lived in the apartment complex, even though his identification listed a different address. He was unwilling to tell the officer in which apartment he resided.

"Because she was on patrol alone, Brown called for backup while she was checking the ages and identities of the three individuals. Two backup officers arrived within a couple of minutes. By the time they arrived, Brown had determined that the driver of the car was 21 years old and therefore lawfully in possession of alcohol. She also had determined that defendant was 18 years old and therefore not violating curfew. Brown returned defendant's and the driver's identification to them, making no overture to cite or hold them. They were then free to go, but Brown did not expressly tell them that. They remained while Brown continued her investigation of the 17-year-old for a possible curfew violation.

"At that point, Brown was concerned for her personal safety and that of the backup officers. Defendant and his male companion were wearing distinctive clothing commonly associated with a gang called the '18th Street' gang. Typical of that gang, defendant had a shaved head and was wearing baggy tan pants and a baggy black shirt with the term '18th Street' printed on the back in large white letters. Defendant's companion also was wearing baggy gang-style clothes and had a three-dot tattoo under his eye that is associated with gang membership. The baggy style of the clothing concerned Brown because, in addition to signaling gang affiliation, the clothing permitted easy concealment of a weapon. Within the preceding year, Brown had come into contact with a similarly attired gang member in the parking lot of the same apartment complex who, on a patdown search, was found to have a weapon concealed in his waistband under his baggy clothing. Also, based on her training and experience more generally, Brown knew that members of the 18th Street gang commonly carry weapons--in particular, guns.

"One of the backup officers, Officer Cockreham, shared Brown's safety concerns. His concerns arose because of defendant's 18th Street gang-affiliated clothing, as well as the way in which defendant's shirt was draped over his waist. Cockreham had personally removed weapons from several 18th Street gang members in the same general area (i.e., along Allen Boulevard between Hall and King); one such encounter occurred 'just previously to this incident' and the weapon he found on the gang member was a gun. Brown directed Cockreham to patdown defendant for weapons. On doing so, Cockreham found a gun concealed in the waistband of defendant's pants."

186 Or App at 422-24 (footnote omitted).

In affirming the trial court's rulings denying defendant's motion to suppress the gun, the Court of Appeals majority relied on this court's earlier decision in Bates. There, this court held that

"Article I, section 9, of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present."

Id. at 524. The Court of Appeals majority began its analysis by characterizing the basis for the officers' particularized suspicion of defendant:

"The officers' safety concerns here were not stereotypical in the sense that they derived only from a generalized and oversimplified view of how all members of a broad group behave in all circumstances. Rather, Brown and Cockreham had particular training in and experience with members of a particular gang--the 18th Street gang--and its local activities. The officers, based on training and experience relating to that particular gang, knew that its local members commonly carried concealed weapons. They knew, moreover, that guns were often the weapon of choice for members of the 18th Street gang."

Miglavs, 186 Or App at 427 (emphasis in original). The court concluded that several factors contributed to the officers' reasonable fear for their safety:

"On whole, then, we have this: defendant was a likely member of not just an urban gang but of a particular gang known to operate in the area--the 18th Street gang--whose local members commonly carry guns; he was wearing clothes that could have concealed a gun; the officers had both longer-term and very recent experience with members of the 18th Street gang in the area who were armed with concealed weapons; it was late; it was dark; and defendant chose to protract the encounter with the officers. The totality of what the officers knew and the circumstances with which they were confronted went beyond a generalized understanding of the practices of urban gangs and encompassed a specific and particularized reality as to defendant and the 18th Street gang, of which defendant was a likely member."

Id. at 428. The court thus affirmed defendant's convictions.

Judge Haselton agreed with the majority, but wrote separately to clarify that the court's decision did "not authorize 'officer safety' searches based solely on a citizen's 'suspicious' appearance or possible association with a potentially dangerous group." Id. at 435 (Haselton, J., concurring). He further explained that "our holding does not write a blank check for 'officer safety' patdowns resulting from officer-initiated contacts with young men or women wearing 'gang style' clothing." Id. (Haselton, J., concurring).

Judge Edmonds and Judge Armstrong dissented in separate opinions. Judge Edmonds asserted that the constitutional right to associate requires that the constitutional protections against unreasonable searches and seizures apply equally to "those who belong to gangs, wear baggy gang-related clothing, or identify with groups known to be violent" as they do to others. Id. (Edmonds, J., dissenting). He opined that defendant's decision to remain at the scene after Brown concluded her investigation of him was the only fact that could have contributed to her concern that defendant might pose an immediate threat to her safety or that of others. Id. at 436 (Edmonds, J., dissenting). But that fact, Judge Edmonds asserted, was of little significance in light of defendant's cooperative attitude and the fact that Brown did not tell him that he was free to leave. Id. (Edmonds, J., dissenting). Judge Edmonds further posited that Brown's failure to direct defendant to leave indicated that she did not perceive defendant to be a greater threat at the end of the investigation than she had at the beginning. Id. (Edmonds, J., dissenting). According to Judge Edmonds, the majority's decision would permit the police to patdown "any person dressed in gang attire and present in a mall or other public place * * * even in the absence of individualized suspicion[,]" contrary to Article I, section 9, of the Oregon Constitution. (2) Id. at 436-37 (Edmonds, J., dissenting).

Judge Armstrong similarly believed that the officers' knowledge that defendant was a member of the 18th Street gang, and their prior experiences with that gang, were not "sufficient to give the officers a reasonable basis to believe that defendant was a member of the 18th Street gang who, because of that membership, was reasonably likely to be carrying a gun." Id. at 439 (Armstrong, J., dissenting). He also could not discern a difference between the officers' knowledge that defendant was a member of a particular gang that was known to carry guns and their knowledge that members of a particular type of gang carry guns. Id. at 440 (Armstrong, J., dissenting). "In either case" Judge Armstrong observed, "the state seeks to rely on a syllogism that people of a particular group often carry weapons, that the defendant appears to be a member of that group, and that it is therefore reasonable to suspect that the defendant is carrying a weapon." Id. (Armstrong, J., dissenting). He noted further, as did Judge Edmonds, that Brown did not have a reason to fear for her safety because defendant was cooperative and because Brown had not waited for the backup officers to arrive to conduct her investigation of the three individuals. Id. at 440-41 (Armstrong, J., dissenting). In Judge Armstrong's view, defendant's failure to leave when Brown returned defendant's identification was of no significance because Brown should have understood that defendant merely wished to resume his encounter with his friends. Id. at 441-42 (Armstrong, J., dissenting).

In this court, defendant relies on the dissenting opinions by Judge Edmonds and Judge Armstrong and argues that the Court of Appeals majority erred in its application of the Bates rule because Brown did not have a particularized suspicion that defendant was armed and might pose a threat to the officers' safety. He observes that, when Brown had concluded her investigation of defendant, she did not tell him that he was free to leave, from which he argues that his failure to leave should not have contributed to Brown's safety concerns. He notes further that he was "cooperative and unthreatening" and, thus, should not have made the officers feel that he presented an immediate risk to their safety.

The state responds that this court needs to decide only whether "the officers' belief that defendant might be armed and dangerous [was] a reasonable one." In its view, "the officers reasonably believed that this defendant might pose an immediate threat primarily because he had expressly affiliated himself with a particular gang, the local members of which operate in the immediate vicinity and, in the officers' training and experience, often are armed." Further, the state argues, "[t]hat suspicion was sufficiently particularized because it was based on characteristics shared by a narrow and well-defined category of persons with whom the officers had specific experiences and about whom the officers had received training." For the reasons that follow, we agree with the state.

We begin with a review of Bates. In that case, a City of Eugene police officer stopped the defendant for "'excessive vehicle emissions'" at 4:40 a.m. Id. at 521. The stop occurred in a "'high crime'" area and the officer called for assistance. Id. Two officers approached the defendant's vehicle and one officer asked for the defendant's driver license. Id. The officers noticed that there was a "television and a videocassette recorder [VCR]" on the back seat of the defendant's vehicle. Id. One officer also noticed "an object on the floorboard between [the] defendant's feet." Id. The other officer also took note of the object and "'asked [the defendant] if he would reach down and very cautiously pull that item from between his feet," so that the officer could see what it was. Id. The defendant refused and instead "reached under the seat and remained in that position" while the officer repeatedly asked him to pull the item into plain view. Id. The officer then pulled his gun and ordered the defendant to step out of the car. Id. The officer then obtained the bag from under the seat, felt something hard inside, opened it, and discovered "several rounds of live ammunition, drugs, and drug paraphernalia." Id. at 522.

The court began its analysis by noting the state's reliance on the Supreme Court's analysis of officer safety searches in Michigan v. Long, 463 US 1032, 103 S Ct 3469, 77 L Ed 2d 1201 (1983), and this court's own previous analysis in State v. Riley, 240 Or 521, 402 P2d 741 (1965), in which the court had acknowledged that "police officers are entitled to take steps reasonably necessary to their safety." Bates, 304 Or at 523. The court then held, as set out above, that Article I, section 9, of the Oregon Constitution "does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion" that the suspect "might pose" a danger to the officer or others. Id. at 524. The court explained that

"it is not [this court's] function to uncharitably second-guess an officer's judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made."

Id. at 524-25 (emphasis added). See also State v. Amaya, __ Or ___, ___ P3d ___ (April 29, 2004) (same).

The Bates court concluded, however, that the officers had exceeded the permissible bounds of the rule. Id. at 525-26. It reached that result by assessing the significance of each factor that the officer identified as contributing to his conclusion that the defendant posed an immediate threat. Id. The officer testified that the vehicle's out-of-state license plates, the time of day, the high crime area, the defendant's appearance, the fact that there was a television and a VCR on the back seat of the defendant's vehicle, and the fact that the defendant did not comply with the officer's instruction to pull into plain view the item that he could not see fully, all contributed to his concern about the defendant's possible dangerousness. Id. at 525.

This court, however, concluded that none of the identified factors, even when considered collectively, supported a reasonable suspicion that the defendant posed an immediate threat to the officers' safety. The court observed that the suspicions of the officer who ordered the defendant out of the car

"may have been an excellent guess–-the kind resulting from a sixth sense that many officers develop over the years. But, again, there is no objective quality to them that entitles them to any weight, either individually or collectively, in the constitutional calculus. Neither the hour nor the 'high crime' nature of the area tells us whether this defendant is likely to be a criminal, unless there is some reason to think that everyone driving in that particular area at that time of night is up to no good[.]"

Id. at 526 (emphasis in original). As in Bates, our inquiry in this case is limited to whether the precautionary patdown was reasonable under the circumstances as they reasonably appeared at that time.

Here, the officers testified that the following factors contributed to their determination that defendant might pose an immediate threat to their safety: (1) defendant "was wearing bagg[y] tan pants and a black bagg[y] shirt that had '18th' written on the back of the shirt in large white letters[,]" (3) which the officers associated with the attire of 18th Street gang members; (2) the young man with defendant also had a gang-related tattoo consisting of three dots in the shape of a triangle that Officer Brown knew meant "'[m]i vida loca'" or "'my crazy life' in English" and his shirt also had the number 18 on it; (3) both defendant and the man with him were wearing, "untucked[,]" "extremely bagg[y clothing that] could easily conceal weapons"; (4) the officers knew that 18th Street gang members operated in the vicinity of the encounter and that they carried guns; (5) Officer Cockreham personally removed weapons from several 18th Street gang members and had, just previously to this incident, had removed a gun from an 18th Street gang member; and (6) neither defendant nor the woman in the car chose to leave after Brown returned their identification.

Before evaluating the factors described above, we first address defendant's argument that his cooperative attitude and lack of suspicious behavior was sufficient to dispel any concerns that the officers had for their safety. Defendant is correct that those circumstances must be considered in the overall assessment of the reasonableness of the officers' decision to engage in the patdown. However, defendant's attitude and demeanor are just two circumstances that the officers and, ultimately, this court must consider in determining whether the totality of the circumstances justified the decision to engage in a precautionary patdown. See State v. Ehly, 317 Or 66, 83, 854 P2d 421 (1993) ("totality of the circumstances" are considered in determining whether officer's suspicion was reasonable). As we now explain, those countervailing circumstances, considered in light of the totality of the circumstances, are not sufficient to dispel the reasonableness of the officers' particularized suspicion that defendant might have posed a danger to their safety.

Under Bates, a limited precautionary patdown is authorized under Article I, section 9, only when the initial contact between the police and the individual is lawful. Here, defendant concedes that Brown was engaged in a lawful contact with defendant. Brown had approached the vehicle to investigate possible curfew, and later, alcohol violations. She requested defendant's identification and, upon concluding her investigation, promptly returned defendant's identification to him. In other words, as noted previously, the police contact was not initiated solely (or at all) because defendant and his companion were wearing gang attire.

Next, Bates requires an evaluation whether the factors that the officers claim supported their belief that defendant might pose an immediate threat to their safety are sufficiently particularized to defendant as required under Article I, section 9. This court repeatedly has explained that a person's appearance alone never can support a reasonable suspicion of unlawful activity. See State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977) (explaining that "shined shoes, sharp clothes, neat 'Afro' haircuts and people who stand and stare at officers" cannot say much about those people engaging in criminal activity); Bates, 304 Or at 525 (explaining that fact that defendant was "an 'Indian' with long hair and beard" wearing black leather jacket could not support reasonable suspicion to believe that he was dangerous). A police officer's suspicion must be particularized to the individual based on the individual's own conduct. State v. Stanley, 325 Or 239, 245-46, 935 P2d 1202 (1997); Bates, 304 Or at 525; Valdez, 277 Or at 628. Regardless of the officers' belief that gang members wear baggy clothing, that type of clothing alone could not support a reasonable suspicion that defendant posed a risk to the officers' safety. That is, nothing about such attire alone could tell the officers anything about defendant, except that he liked to wear baggy clothing. Nevertheless, a particular style of attire may be a circumstance that, when considered in the overall context or totality of the circumstances of a police-citizen contact, contributes to the reasonableness of an officer's safety assessment.

Similarly, clothing that announces a gang affiliation does not, by itself, give rise to the kind of individualized suspicion of a safety threat required under Article I, section 9. However, officers reasonably may draw inferences about human behavior from their training and experience. See Stanley, 325 Or at 246-46 (in officer's experience, people who commit robberies often are armed); Ehly, 317 Or at 80-81 (in officer's experience, drug users often are armed). In this instance, the officers knew from training and recent personal experience that the gang identified on defendant's shirt operated in the immediate vicinity of the contact and that members of that gang carried weapons. Furthermore, one of the officers recently had removed a gun from one of the members of that gang. Under those circumstances, the officers' safety concerns regarding defendant were not based solely on generalized or stereotypical information about gang behavior but, instead, were sufficiently particularized, based on specific training about and recent personal experience with a narrowly identified group, viz., members of the local gang to which defendant and his male companion proclaimed their allegiance and which operated in the area where the officers encountered defendant.

Finally, in addition to defendant's self-proclaimed gang membership and the officers' training and recent experience with other gang members, there are other factors that contribute to the reasonableness of the officers' safety concerns. First, the contact with defendant and his two companions occurred at a late hour in a darkened area in the general vicinity where one of the officers recently had encountered armed members of the 18th Street gang. Defendant was uncooperative during the initial investigation when he refused to reveal the location of his residence in the apartment complex. See Amaya, ___ Or at ___ (refusal to leave purse-like bag in vehicle when requested to do so was one factor that heightened officer's safety concern).

Second, although defendant was free to move from the immediate area after his identification was returned to him, he chose to remain in the area near where the police were conducting an ongoing investigation. When defendant remained in that close proximity to the officers, the officers' safety concerns reasonably were heightened because the officers needed to focus their attention on defendant's companion and were not able to watch defendant as closely as they could before that time. As this court explained in Bates:

"A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations."

Bates, 304 Or at 524 (emphasis added).

Here, the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them. That individualized suspicion justified the limited precautionary patdown of defendant that occurred in this case and did not violate defendant's protection against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DANIEL PAUL MIGLAVS,

Petitioner on Review.

(CC C000009CR, C000111CR; CA A111137 (Control), A111138; SC S50279)

On review from the Court of Appeals.*

Argued and submitted March 3, 2004.

Garrett A. Richardson, Portland, argued the cause and filed the brief for petitioner on review.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent on review. Julie A. Smith, Assistant Attorney General, filed the brief. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.**

DE MUNIZ, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Washington County Circuit Court, Timothy P. Alexander, Judge. 186 Or App 420, 63 P3d 1202 (2003).

**Kistler, J., did not participate in the consideration or decision of this case.

DE MUNIZ, J.

The issue in this criminal case is whether a police officer lawfully engaged in a precautionary patdown (1) of defendant in accordance with the officer safety rule set out in State v. Bates, 304 Or 519, 747 P2d 991 (1987). Because there were multiple charges against defendant arising out of separate police patdowns and a subsequent search of defendant's residence, we first set out the procedural history in some detail.

Defendant was charged with two counts of unlawful possession of a firearm based on evidence uncovered during a patdown (the patdown at issue here) conducted in August 1999. Defendant moved to suppress the evidence that the police discovered during that patdown. Following an evidentiary hearing, the trial court denied defendant's motion to suppress that evidence.

The same indictment also charged defendant with two other counts of unlawful possession of a firearm as a result of evidence uncovered in a patdown that the police conducted in September 1999. Defendant moved to suppress the evidence obtained as a result of that patdown, and the trial court granted that motion.

Finally, the police executed a search warrant at defendant's residence in December 1999 and seized evidence that led to defendant being charged separately with seven other weapon and drug-related crimes. Defendant moved to suppress that evidence as well, and the trial court denied that motion.

The court consolidated all charges and tried them at the same time. Defendant ultimately was convicted of two counts of unlawful possession of a firearm seized as a result of the August patdown and three counts of unlawful possession of a firearm seized during the December search of defendant's residence.

Defendant appealed, contending that the police had relied on the evidence that they discovered during the August patdown to obtain the search warrant that led to the discovery of the evidence seized during the December search of defendant's residence. A divided en banc Court of Appeals affirmed the trial court's rulings denying defendant's motions to suppress evidence discovered during the August patdown and the December search of his residence. State v. Miglavs, 186 Or App 420, 63 P3d 1202 (2003). We allowed defendant's petition for review. For the reasons that follow, we conclude that the August patdown was lawful and, therefore, affirm the trial court judgment and the decision of the Court of Appeals.

We take the following facts from the Court of Appeals majority opinion:

"Just after midnight in August 1999, Officer Brown, who was on patrol alone, saw defendant and another man standing outside a car, talking to a woman seated in the car, in the parking lot of an apartment complex in Beaverton. They were below an apartment overhang, which caused the area to be fairly dark. Because Brown suspected that all three individuals were under 18 years of age and possibly violating curfew, she approached the group. On approaching, she saw alcohol in the car. She asked for identification so that she could determine if any alcohol-related or curfew violations may have occurred. Defendant and the woman in the car gave Brown their identification, which she kept while she ran a records check on them. The other male said that he was 17 years old and gave his name and date of birth in lieu of other identification. The dispatcher reported that defendant was a possible runaway, but defendant told the officer that he had recently turned 18. He also told the officer that he lived in the apartment complex, even though his identification listed a different address. He was unwilling to tell the officer in which apartment he resided.

"Because she was on patrol alone, Brown called for backup while she was checking the ages and identities of the three individuals. Two backup officers arrived within a couple of minutes. By the time they arrived, Brown had determined that the driver of the car was 21 years old and therefore lawfully in possession of alcohol. She also had determined that defendant was 18 years old and therefore not violating curfew. Brown returned defendant's and the driver's identification to them, making no overture to cite or hold them. They were then free to go, but Brown did not expressly tell them that. They remained while Brown continued her investigation of the 17-year-old for a possible curfew violation.

"At that point, Brown was concerned for her personal safety and that of the backup officers. Defendant and his male companion were wearing distinctive clothing commonly associated with a gang called the '18th Street' gang. Typical of that gang, defendant had a shaved head and was wearing baggy tan pants and a baggy black shirt with the term '18th Street' printed on the back in large white letters. Defendant's companion also was wearing baggy gang-style clothes and had a three-dot tattoo under his eye that is associated with gang membership. The baggy style of the clothing concerned Brown because, in addition to signaling gang affiliation, the clothing permitted easy concealment of a weapon. Within the preceding year, Brown had come into contact with a similarly attired gang member in the parking lot of the same apartment complex who, on a patdown search, was found to have a weapon concealed in his waistband under his baggy clothing. Also, based on her training and experience more generally, Brown knew that members of the 18th Street gang commonly carry weapons--in particular, guns.

"One of the backup officers, Officer Cockreham, shared Brown's safety concerns. His concerns arose because of defendant's 18th Street gang-affiliated clothing, as well as the way in which defendant's shirt was draped over his waist. Cockreham had personally removed weapons from several 18th Street gang members in the same general area (i.e., along Allen Boulevard between Hall and King); one such encounter occurred 'just previously to this incident' and the weapon he found on the gang member was a gun. Brown directed Cockreham to patdown defendant for weapons. On doing so, Cockreham found a gun concealed in the waistband of defendant's pants."

186 Or App at 422-24 (footnote omitted).

In affirming the trial court's rulings denying defendant's motion to suppress the gun, the Court of Appeals majority relied on this court's earlier decision in Bates. There, this court held that

"Article I, section 9, of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present."

Id. at 524. The Court of Appeals majority began its analysis by characterizing the basis for the officers' particularized suspicion of defendant:

"The officers' safety concerns here were not stereotypical in the sense that they derived only from a generalized and oversimplified view of how all members of a broad group behave in all circumstances. Rather, Brown and Cockreham had particular training in and experience with members of a particular gang--the 18th Street gang--and its local activities. The officers, based on training and experience relating to that particular gang, knew that its local members commonly carried concealed weapons. They knew, moreover, that guns were often the weapon of choice for members of the 18th Street gang."

Miglavs, 186 Or App at 427 (emphasis in original). The court concluded that several factors contributed to the officers' reasonable fear for their safety:

"On whole, then, we have this: defendant was a likely member of not just an urban gang but of a particular gang known to operate in the area--the 18th Street gang--whose local members commonly carry guns; he was wearing clothes that could have concealed a gun; the officers had both longer-term and very recent experience with members of the 18th Street gang in the area who were armed with concealed weapons; it was late; it was dark; and defendant chose to protract the encounter with the officers. The totality of what the officers knew and the circumstances with which they were confronted went beyond a generalized understanding of the practices of urban gangs and encompassed a specific and particularized reality as to defendant and the 18th Street gang, of which defendant was a likely member."

Id. at 428. The court thus affirmed defendant's convictions.

Judge Haselton agreed with the majority, but wrote separately to clarify that the court's decision did "not authorize 'officer safety' searches based solely on a citizen's 'suspicious' appearance or possible association with a potentially dangerous group." Id. at 435 (Haselton, J., concurring). He further explained that "our holding does not write a blank check for 'officer safety' patdowns resulting from officer-initiated contacts with young men or women wearing 'gang style' clothing." Id. (Haselton, J., concurring).

Judge Edmonds and Judge Armstrong dissented in separate opinions. Judge Edmonds asserted that the constitutional right to associate requires that the constitutional protections against unreasonable searches and seizures apply equally to "those who belong to gangs, wear baggy gang-related clothing, or identify with groups known to be violent" as they do to others. Id. (Edmonds, J., dissenting). He opined that defendant's decision to remain at the scene after Brown concluded her investigation of him was the only fact that could have contributed to her concern that defendant might pose an immediate threat to her safety or that of others. Id. at 436 (Edmonds, J., dissenting). But that fact, Judge Edmonds asserted, was of little significance in light of defendant's cooperative attitude and the fact that Brown did not tell him that he was free to leave. Id. (Edmonds, J., dissenting). Judge Edmonds further posited that Brown's failure to direct defendant to leave indicated that she did not perceive defendant to be a greater threat at the end of the investigation than she had at the beginning. Id. (Edmonds, J., dissenting). According to Judge Edmonds, the majority's decision would permit the police to patdown "any person dressed in gang attire and present in a mall or other public place * * * even in the absence of individualized suspicion[,]" contrary to Article I, section 9, of the Oregon Constitution. (2) Id. at 436-37 (Edmonds, J., dissenting).

Judge Armstrong similarly believed that the officers' knowledge that defendant was a member of the 18th Street gang, and their prior experiences with that gang, were not "sufficient to give the officers a reasonable basis to believe that defendant was a member of the 18th Street gang who, because of that membership, was reasonably likely to be carrying a gun." Id. at 439 (Armstrong, J., dissenting). He also could not discern a difference between the officers' knowledge that defendant was a member of a particular gang that was known to carry guns and their knowledge that members of a particular type of gang carry guns. Id. at 440 (Armstrong, J., dissenting). "In either case" Judge Armstrong observed, "the state seeks to rely on a syllogism that people of a particular group often carry weapons, that the defendant appears to be a member of that group, and that it is therefore reasonable to suspect that the defendant is carrying a weapon." Id. (Armstrong, J., dissenting). He noted further, as did Judge Edmonds, that Brown did not have a reason to fear for her safety because defendant was cooperative and because Brown had not waited for the backup officers to arrive to conduct her investigation of the three individuals. Id. at 440-41 (Armstrong, J., dissenting). In Judge Armstrong's view, defendant's failure to leave when Brown returned defendant's identification was of no significance because Brown should have understood that defendant merely wished to resume his encounter with his friends. Id. at 441-42 (Armstrong, J., dissenting).

In this court, defendant relies on the dissenting opinions by Judge Edmonds and Judge Armstrong and argues that the Court of Appeals majority erred in its application of the Bates rule because Brown did not have a particularized suspicion that defendant was armed and might pose a threat to the officers' safety. He observes that, when Brown had concluded her investigation of defendant, she did not tell him that he was free to leave, from which he argues that his failure to leave should not have contributed to Brown's safety concerns. He notes further that he was "cooperative and unthreatening" and, thus, should not have made the officers feel that he presented an immediate risk to their safety.

The state responds that this court needs to decide only whether "the officers' belief that defendant might be armed and dangerous [was] a reasonable one." In its view, "the officers reasonably believed that this defendant might pose an immediate threat primarily because he had expressly affiliated himself with a particular gang, the local members of which operate in the immediate vicinity and, in the officers' training and experience, often are armed." Further, the state argues, "[t]hat suspicion was sufficiently particularized because it was based on characteristics shared by a narrow and well-defined category of persons with whom the officers had specific experiences and about whom the officers had received training." For the reasons that follow, we agree with the state.

We begin with a review of Bates. In that case, a City of Eugene police officer stopped the defendant for "'excessive vehicle emissions'" at 4:40 a.m. Id. at 521. The stop occurred in a "'high crime'" area and the officer called for assistance. Id. Two officers approached the defendant's vehicle and one officer asked for the defendant's driver license. Id. The officers noticed that there was a "television and a videocassette recorder [VCR]" on the back seat of the defendant's vehicle. Id. One officer also noticed "an object on the floorboard between [the] defendant's feet." Id. The other officer also took note of the object and "'asked [the defendant] if he would reach down and very cautiously pull that item from between his feet," so that the officer could see what it was. Id. The defendant refused and instead "reached under the seat and remained in that position" while the officer repeatedly asked him to pull the item into plain view. Id. The officer then pulled his gun and ordered the defendant to step out of the car. Id. The officer then obtained the bag from under the seat, felt something hard inside, opened it, and discovered "several rounds of live ammunition, drugs, and drug paraphernalia." Id. at 522.

The court began its analysis by noting the state's reliance on the Supreme Court's analysis of officer safety searches in Michigan v. Long, 463 US 1032, 103 S Ct 3469, 77 L Ed 2d 1201 (1983), and this court's own previous analysis in State v. Riley, 240 Or 521, 402 P2d 741 (1965), in which the court had acknowledged that "police officers are entitled to take steps reasonably necessary to their safety." Bates, 304 Or at 523. The court then held, as set out above, that Article I, section 9, of the Oregon Constitution "does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion" that the suspect "might pose" a danger to the officer or others. Id. at 524. The court explained that

"it is not [this court's] function to uncharitably second-guess an officer's judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made."

Id. at 524-25 (emphasis added). See also State v. Amaya, __ Or ___, ___ P3d ___ (April 29, 2004) (same).

The Bates court concluded, however, that the officers had exceeded the permissible bounds of the rule. Id. at 525-26. It reached that result by assessing the significance of each factor that the officer identified as contributing to his conclusion that the defendant posed an immediate threat. Id. The officer testified that the vehicle's out-of-state license plates, the time of day, the high crime area, the defendant's appearance, the fact that there was a television and a VCR on the back seat of the defendant's vehicle, and the fact that the defendant did not comply with the officer's instruction to pull into plain view the item that he could not see fully, all contributed to his concern about the defendant's possible dangerousness. Id. at 525.

This court, however, concluded that none of the identified factors, even when considered collectively, supported a reasonable suspicion that the defendant posed an immediate threat to the officers' safety. The court observed that the suspicions of the officer who ordered the defendant out of the car

"may have been an excellent guess–-the kind resulting from a sixth sense that many officers develop over the years. But, again, there is no objective quality to them that entitles them to any weight, either individually or collectively, in the constitutional calculus. Neither the hour nor the 'high crime' nature of the area tells us whether this defendant is likely to be a criminal, unless there is some reason to think that everyone driving in that particular area at that time of night is up to no good[.]"

Id. at 526 (emphasis in original). As in Bates, our inquiry in this case is limited to whether the precautionary patdown was reasonable under the circumstances as they reasonably appeared at that time.

Here, the officers testified that the following factors contributed to their determination that defendant might pose an immediate threat to their safety: (1) defendant "was wearing bagg[y] tan pants and a black bagg[y] shirt that had '18th' written on the back of the shirt in large white letters[,]" (3) which the officers associated with the attire of 18th Street gang members; (2) the young man with defendant also had a gang-related tattoo consisting of three dots in the shape of a triangle that Officer Brown knew meant "'[m]i vida loca'" or "'my crazy life' in English" and his shirt also had the number 18 on it; (3) both defendant and the man with him were wearing, "untucked[,]" "extremely bagg[y clothing that] could easily conceal weapons"; (4) the officers knew that 18th Street gang members operated in the vicinity of the encounter and that they carried guns; (5) Officer Cockreham personally removed weapons from several 18th Street gang members and had, just previously to this incident, had removed a gun from an 18th Street gang member; and (6) neither defendant nor the woman in the car chose to leave after Brown returned their identification.

Before evaluating the factors described above, we first address defendant's argument that his cooperative attitude and lack of suspicious behavior was sufficient to dispel any concerns that the officers had for their safety. Defendant is correct that those circumstances must be considered in the overall assessment of the reasonableness of the officers' decision to engage in the patdown. However, defendant's attitude and demeanor are just two circumstances that the officers and, ultimately, this court must consider in determining whether the totality of the circumstances justified the decision to engage in a precautionary patdown. See State v. Ehly, 317 Or 66, 83, 854 P2d 421 (1993) ("totality of the circumstances" are considered in determining whether officer's suspicion was reasonable). As we now explain, those countervailing circumstances, considered in light of the totality of the circumstances, are not sufficient to dispel the reasonableness of the officers' particularized suspicion that defendant might have posed a danger to their safety.

Under Bates, a limited precautionary patdown is authorized under Article I, section 9, only when the initial contact between the police and the individual is lawful. Here, defendant concedes that Brown was engaged in a lawful contact with defendant. Brown had approached the vehicle to investigate possible curfew, and later, alcohol violations. She requested defendant's identification and, upon concluding her investigation, promptly returned defendant's identification to him. In other words, as noted previously, the police contact was not initiated solely (or at all) because defendant and his companion were wearing gang attire.

Next, Bates requires an evaluation whether the factors that the officers claim supported their belief that defendant might pose an immediate threat to their safety are sufficiently particularized to defendant as required under Article I, section 9. This court repeatedly has explained that a person's appearance alone never can support a reasonable suspicion of unlawful activity. See State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977) (explaining that "shined shoes, sharp clothes, neat 'Afro' haircuts and people who stand and stare at officers" cannot say much about those people engaging in criminal activity); Bates, 304 Or at 525 (explaining that fact that defendant was "an 'Indian' with long hair and beard" wearing black leather jacket could not support reasonable suspicion to believe that he was dangerous). A police officer's suspicion must be particularized to the individual based on the individual's own conduct. State v. Stanley, 325 Or 239, 245-46, 935 P2d 1202 (1997); Bates, 304 Or at 525; Valdez, 277 Or at 628. Regardless of the officers' belief that gang members wear baggy clothing, that type of clothing alone could not support a reasonable suspicion that defendant posed a risk to the officers' safety. That is, nothing about such attire alone could tell the officers anything about defendant, except that he liked to wear baggy clothing. Nevertheless, a particular style of attire may be a circumstance that, when considered in the overall context or totality of the circumstances of a police-citizen contact, contributes to the reasonableness of an officer's safety assessment.

Similarly, clothing that announces a gang affiliation does not, by itself, give rise to the kind of individualized suspicion of a safety threat required under Article I, section 9. However, officers reasonably may draw inferences about human behavior from their training and experience. See Stanley, 325 Or at 246-46 (in officer's experience, people who commit robberies often are armed); Ehly, 317 Or at 80-81 (in officer's experience, drug users often are armed). In this instance, the officers knew from training and recent personal experience that the gang identified on defendant's shirt operated in the immediate vicinity of the contact and that members of that gang carried weapons. Furthermore, one of the officers recently had removed a gun from one of the members of that gang. Under those circumstances, the officers' safety concerns regarding defendant were not based solely on generalized or stereotypical information about gang behavior but, instead, were sufficiently particularized, based on specific training about and recent personal experience with a narrowly identified group, viz., members of the local gang to which defendant and his male companion proclaimed their allegiance and which operated in the area where the officers encountered defendant.

Finally, in addition to defendant's self-proclaimed gang membership and the officers' training and recent experience with other gang members, there are other factors that contribute to the reasonableness of the officers' safety concerns. First, the contact with defendant and his two companions occurred at a late hour in a darkened area in the general vicinity where one of the officers recently had encountered armed members of the 18th Street gang. Defendant was uncooperative during the initial investigation when he refused to reveal the location of his residence in the apartment complex. See Amaya, ___ Or at ___ (refusal to leave purse-like bag in vehicle when requested to do so was one factor that heightened officer's safety concern).

Second, although defendant was free to move from the immediate area after his identification was returned to him, he chose to remain in the area near where the police were conducting an ongoing investigation. When defendant remained in that close proximity to the officers, the officers' safety concerns reasonably were heightened because the officers needed to focus their attention on defendant's companion and were not able to watch defendant as closely as they could before that time. As this court explained in Bates:

"A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations."

Bates, 304 Or at 524 (emphasis added).

Here, the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them. That individualized suspicion justified the limited precautionary patdown of defendant that occurred in this case and did not violate defendant's protection against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

Anonymous said...

My name is Eli S. Barnhardt

beakeer said...

ALL HAIL STEWIE!!!

The Norm said...

It really is time to start screening comments. These post everyday of your court actions and the site are really really getting old. It's all stuff everyone knows anyways so why not yank it.

Anonymous said...

eddie said...
Oh no, it's Mr. Anonymous: "I can't dispute the facts, so I'm going to attack the commentator" again.

Quick, one of you better paste the whole site in a comment. That'll win support.

***********************************

I am not "disputing" any of Miglavs' "facts," although he provides new ones on a daily basis that are easily disputed. That's not my purpose. My purpose is give Daniel a daily dose of his own medicine. His constant chest-thumping about what a worthwhile human being he is vs. others who happen to be of Hispanic descent. Miglavs needs to drop the racist insults and discuss this issue like a gentleman. When he does, I will stop. Miglavs expects to be treated fairly as an ex-felon who has reformed himself, he expects dignity, respect and decency. He refuses to give it to others. And yes, you will say "but they're lawbreakers!" So was Daniel. "They cost untold thousands of dollars of taxpayer money!" So did Daniel.

Anonymous said...

PS: my name is Eli S. Barnhardt. I live in the Willamette Valley. I post using anonymous because I can't remember my Google password and I don't want to fu&k around with Google to try and change it.

Anonymous said...

August 24, 2006
Daniel is Wrong
An interesting discussion is going on over at the Portland Mercury about the harassment of Mexican laborers by a group called Oregonians for Immigration Reform. Featured in the discussion is one Daniel Miglavs, whose apparent split personality is confounding the people who are posting on the subject.

The so-called "split personality" has to do with the fact that he is married to a Latina woman and is rabidly anti-illegal immigration. He also has a history of involvement in the 18th Street gang. And people say I've done a philosophical 180. Perhaps if Daniel didn't look like a skinhead, this argument wouldn't be given any credibility - after all, it is possible to be against illegal immigration without being a racist.

Daniel is a blogger, mostly writing about illegal immigration these days, but he has for some time been an active, outspoken right-wing Republican. I can't say I have ever read anything he wrote that I agreed with. But then, I don't read his posts that often. He just strikes me as an extremist and that sort of thinking annoys me to no end. But I do find it fascinating that one of his more outspoken critics at the Mercury accuses Daniel of being a hater and then calls him a "fucktard," all in the same breath. We're all blind to our own faults, I suppose.

As I've written before, the immigration issue is fracturing the Republican party power structure. But in what I would consider a big but unreported story, it seems Democrats are fractured by this issue, as well. I've talked with Democrats who think Pat Buchanan, as odd as he is, makes a lot of sense on immigration (he makes a lot of sense to me, too). On the other hand, no small number of Democrats see those who want to enforce immigration laws as barely closeted racists (I think in some cases that is true). And if you really want to have your brain twist up, consider this: The founder of Oregonians for Immigration Reform is an environmental activist. The point is, this issue is damned complicated and the usual categories don't apply here.

Here's where I part ways from Daniel and Oregonians for Immigration Reform. I would never get in the faces of these laborers and try to intimidate them because if I was Mexican, I'd be coming here, too. People pursuing freedom and a better life are not at fault for taking advantage of the situation that currently exists. We might think they could come legally, but the facts contradict that. I actually know well an illegal Mexican immigrant family who are truly assets to this country and who love the United States.

A lot of our political leaders would have us believe we have two choices - either enforce existing laws or come up with new laws, and they have succeeded in convincing too many activists to march in the streets for one view or the other. As I see it, however, such things as NAFTA, tax policies, and anti-worker policies have us so badly mired in muck that no easy solution exists.

In other words, Daniel is wrong.

Daniel's goals would probably much better served if the generous donors funding Oregonians for Immigration Reform paid for him and the other picketers to fly to Washington, DC and protest in front of 1600 Pennsylvania Ave. where they could get in the face of George W. Bush. From there, they could head over to the Capitol with their video cameras and, a la Michael Moore, ask members of Congress what they plan to do, rather than using their camera to document police harrassment and accusatory counter-protestors.

Instead, their protests, whether motivated by hate for brown people or love of country or both (or neither), are succeeding only in bringing out more hate and distracting people from a very serious issue, one that I personally find very internally conflicting and would like to rationally discuss a lot more with thinking people.

Anonymous said...

The post above is from a blog site called "Premptive Karma." It pretty much reflects how many people feel about Daniel Miglavs and why those of us who wish to discuss this issue in a mature and productive manner disapprove of Miglavs thinly veiled racism and the harm it causes to any attempt at solving this issue in a respectful way that honors what America is all about. His "fanatic Jihad" approach doesnt do the rest of us at OIR any favors.

Anthony DeLucca said...

Why do you dipshits constantly revert to calling anyone against illegal immigration racist?

"Illegal Immigrant" is not a race.

Furthermore, as a person who opposes Illegal Immigration, I take offense to your remarks. Not very tolerant of you I must say.

Do you have ANY other argument FOR illegal immigration? can you tell me why 20-25 Million people here illegally ought to get a "pass" for breaking the law? How does Illegal Immigration BENEFIT society?

If you can answer these question, and back it up with factual data from a credible source, I might be swayed.

Until then, you're a cowardly anon poster without the guts to post your name. I challenge you to come face to face with me and call me a racist. I'll bring my 50% African American stepson with me, and you can tell him that my hatred for "Brown" people is thinly veiled. If I've raised him right so far, he'll laugh in your face and call you an idiot.

Anonymous said...

His "fanatic Jihad" approach doesnt do the rest of us at OIR any favors.

It's an understatement to say that Miglavs doesn't do OFIR any favors -- but let's cut the shit: OFIR doesn't exactly go out of its way to distance itself from Miglavs: They LINK to this blog. 'Nuff said.

Anonymous said...

DEAR Mr. Delucca:

At no time did I state I support illegal aliens, in fact, I do not support illegal immigration. My posts are not addressed to you. I do not read what you have to say. I read what Miglavs' has to say. Only the severely deluccad, I mean, deluded, would finish reading a month's worth of Miglavs' blog entries and be able to say "not racist" with a straight face. And believe me, there are PLENTY of OIR members who have issues with the OIR website linking to Miglavs' site and we have made it known. Yes, one can work toward a solution to illegal immigration and do so in a non-racist manner, but few choose that path, preferring to resort to a most unfortunate approach instead. My name is Eli Barnhardt. I am an Oregonian. I am not anonymous, as I have already posted. I only use the "anonymous" option because I have forgotten my password.

a liberal said...

I have always believed, and have stated so more than once on this blog, that intelligent and principled individuals can be opposed to illegal immigration and can argue their case without resorting to the politics and rhetoric of bigotry. Daniel Miglavs long ago proved (and proves virtually every day) that he is not one of those individuals.

Mr. Barnhardt's courageous statement is a powerful confirmation of that fact, and instead of dreaming up a smart-ass reply to either him or myself, Daniel Miglavs and his little fan club would do well to think very seriously about what he is saying.

Mr. Barnhardt: Thank-you.

MAX Redline said...

I do not read what you have to say.
-Anony-Mouse, 10:30 PM

Obviously, you lie. Clearly, you do read what folks have to say, Mr. Lie (oops, Eli). You simply prefer to call everybody who opposes the presence and the ongoing accommodation of illegal aliens a "racist".

eddie said...

Interesting... reading through the entire post, word for word, looking at context, possible innuendo, and secret hidden rightie code... I just don't see it.

For you FACTers: there is a protest class in this town of ours. If you look at them as a group, and try to find some sort of ethnic connection, you'd probably have to settle on white middle-class dropout rastafarian. For some reason, large numbers of them use their Oregon Trail cards at my neighborhood grocery store, and I've learned quite a bit about them from casual conversations....

These are the protesters without jobs, it seems to me. The same faces that show up at every opportunity to wave a sign and march up and down. It's what they do.

I'm loving the pro-illegal logic though. It seems to run something like:

It's illegal to enter the US, but the penalty is usually having to go back and do it again. Furthermore, plenty of citizens there are willing to hire us illegally because we can undercut government wage controls, get around union rules, and avoid the pitfalls of current employment law. So... it's all your fault that we're here, and we bear none at all.

By this sort of reasoning you can justify a lot... shoplifting penalties are rather light, they don't have vast armies of security physically keeping us from stealing things. The stuff in the stores is shiny, so it's not our fault if we take it.

I mean, seriously, if entering the country involved sneaking, being smuggled, or lying to officials then you were aware you were doing something illegal and it shouldn't be a surprise that it might cost you.

Rick Hickey said...

Boy oh boy does the irony run deep.

The very same self proclaimed intelligent liberals that call us & Daniel names, are just cutting their own throats, as I said to the Catholic Priest surrounded by the ladies fired from Del Monte for stealing a Social Security #, at the Portland City Hall protest, whilst young people counter protested OFIR, in support of Illegal job competition.

Union Membership: Historical low.
Laborer Wages : Stagnant

As we all watch companies exploit illegal laborers, such as Del Monte (fined over 1/2 $mil. last year)LEGAL worker wages are stagnant for over 5 years, via competing with this enourmous flood of willing to work for anything 3rd world workers.

How does that benefit anyone?
Why do Unions support Illegal immigration(ex. AFL-CIO has over 400,000 that have S.S.# that does not match)?
If Employers could pay $1.00 a day for a 12 hr. shift, SOME WOULD!
And as their selection of workers, DESPERATE workers, grows & grows Employers have more and more oppurtunity to abuse everybody.

ILLEGAL Immigration again, is NOT a "Complicated" issue.
Excuse makers complicate the facts.

NO JOB: they leave
NO Gov't Handouts: they leave

Existing Federal laws already cover this, they are not being enforced.

OFIR wants them enforced, SIMPLE SOLUTION.

Anonymous said...

Delucca responded as if I were writing to him. I wasn't. And, no, I did not read any of Delucca's posts on this thread except the one he addressed to me. I am not a liar. Eli Barnhardt.

Anonymous said...

Heh you fools. If for a second you would think about your posts. I see people bringing up Daniel's past dealings with a gang and him being married to a latino. Coming from Woodburn I kind of know white dudes arn't allowed in that gang. Though I also see someone call him a skinhead. Yeah......

Anonymous said...

The very same self proclaimed intelligent liberals that call us & Daniel names, are just cutting their own throats ...

Eli Barnhardt did not identify himself as an "intelligent liberal," and he made it clear that he is opposed to immigration. Let's see, how did he put it? Oh yes, here it is. He said: "I do not support illegal immigration."

R Huse said...

Gotta love that Mercury article from yet another person who appears to have just learned about the cut and paste feature.

The funny thing is how amazingly bigoted the article is, but then again I think by this stage most have come to expect a fair amount of bigotry from the left.

My favourite part is the second paragraph:

"The so-called "split personality" has to do with the fact that he is married to a Latina woman and is rabidly anti-illegal immigration."

Notice how it would be odd that someone could be married to a "Latina woman" and yet be anti illegal? Well, I guess to the left, everyone in the same ethnic group thinks alike, all "Latina women" support illegals.

"Perhaps if Daniel didn't look like a skinhead, this argument wouldn't be given any credibility - after all, it is possible to be against illegal immigration without being a racist."

Oh gee, I forgot, if you are liberal its also perfectly ok to judge everyone based on appearance as well as ethnic group.

You know, maybe these clowns should stop excusing their own bigotry, to the point of being completely unaware of it even when its quite blatant like in this example. Maybe then people would give them more credibility when they accuse others of bigotry.

Until then, whine on.

Anonymous said...

Our struggle then must be for the control of our barrios, campos, pueblos, lands, our economy, our culture, and our political life. El Plan commits all levels of Chicano society - the barrio, the campo, the ranchero, the writer, the teacher, the worker, the professional - to La Causa.



3. EDUCATION must be relative to our people, i.e., history, culture, bilingual education, contributions, etc. Community control of our schools, our teachers, our administrators, our counselors, and our programs.



Those institutions which are fattened by our brothers to provide employment and political pork barrels for the gringo will do so only as acts of liberation and for La Causa. For the very young there will no longer be acts of juvenile delinquency, but revolutionary acts.



Where we are a majority, we will control; where we are a minority, we will represent a pressure group; nationally, we will represent one party: La Familia de La Raza!



Self-defense against the occupying forces of the oppressors at every school, every available man, woman, and child.

4. Community nationalization and organization of all Chicanos: El Plan Espiritual de Aztlán.

5. Economic program to drive the exploiter out of our community and a welding together of our people's combined resources to control their own production through cooperative effort.

6. Creation of an independent local, regional, and national political party. ALL FROM LA RAZA

I usually don't get a response from you folks, but hey, if your a "GRINGO" or an "INFIDEL". that is not a good place to be if those two movements who "lapel" us are considered.

One faction has sworn to kill us, the other has sworn to "kill" us with babies, and run us out of the country. Right now all I can say is "REMEMBER THE ALAMO, AN 911", cause both are coming again.

Wondering if you get it?

HEY ANON 7:19 GO HOME

Anonymous said...

I enjoyed reading the above post by RHuse, where he complains about the suggestion by Daniel's critics that he's a bigot.

I enjoyed reading it because it brought back a fond memory. Monday, Sept. 28, 2007. 8:28 A.M. That's when RHuse basically admitted that Daniel Miglavs is a bigot.

I won't waste precious bandwidth with the dreaded "cut-and-paste" feature. Go back and read it for yourself. It was the thread where Daniel was bitching about the Democratic presidential candidates doing a debate in Spanish. A debate for ... how did he put it? Oh yes: The "illegal alien constituency."

[Because people who speak Spanish in this country tend to be Latino, and Latinos -- all of 'em, not just some of 'em, but all of them -- are "illegal aliens." Or at least, they probably are. Right Mr. Miglavs?]

Good to see you, RHuse. Thanks for the memories.

R Huse said...

Thanks for your comment Anon 9.50. The productive thing about is it is a clear illustration of the main issue liberals, at least here, tend to have when discussing anything.

THEY CANT READ

My above post is not about people calling Daniel a bigot. It is about the overt and unapologetic bigotry of the left.

Assignment - Master simple reading skills first, then comment once so prepared.

My Sept 2007 Comment:

I did never called Daniel a bigot. You didn't cut and paste because your poor reading skills don't support what you are saying.

Ill cut and paste it for you. Here is what I said:

>>

The statement "Everyone who speaks Spanish is an illegal" is not racist, it is bigoted, but there is simply no use of race in the entire sentence.

The statement "Speaking Spanish defines a race, so Daniels statement was racist" is racist. It assumes a racial category where there is none and simply lumps people together by what language they speak. By this logic whites from Argentina and blacks from Cuba would be considered the same race..

>>

Again, failure to grasp basic reading skills Anon 9.50.

Assignment - For the love of God, learn to read. Trying to look clever but not being able to read never works well.

Next time, try and understand what you are commenting on before you make a complete ass of yourself as you clearly did here.

Thank you though for really making me laugh out loud on an otherwise dull day cleaning the gutters on my house. This has to be the best attempt at trying to be clever and really falling flat on ones face I have seen here in quite a long time.

Anonymous said...

Give it up, RHuse. The implication of Daniel's post was obvious on its face, spectacularly obvious, and if you actually need it explained, then there probably is no point in arguing about it, but here goes anyway:

The direct implication (in fact, the only possible implication) of Miglavs' post from that day was that: Those who speak Spanish are "illegal aliens." ALL OF THEM.

That is CLEARLY what Miglavs meant. There isn't so much as a trace of ambiguity about it. There is absolutely NO QUESTION that that is what he meant. [To give him the benefit of the doubt, even if he didn't mean to suggest that, then it just goes to show how stupid he is, that he can't make himself clear.] His position, made clear by his own words, is: Any political debate conducted by presidential candidates in Spanish is for the benefit of that "illegal alien constituency." In Miglavs' twisted world, tens of millions of LEGAL Spanish-speaking American citizens apparently do not exist (or, if they do, they are not worthy of being included in the democratic process. In other words, they don't matter.)

The relevant portion of YOUR response was this:

"The statement 'Everyone who speaks Spanish is an illegal' is not racist, it is bigoted ..." [Italics added for emphasis]

Of COURSE it's bigoted!!! That's my point, moron!!! LOL!!! Why bother? Why even fucking bother with it? You're an idiot. You're so goddamned stupid that you're oblivious to the plain truth even when YOU say it! LOLOLOL!!!

Back to the gutters, moron. That's probably the most intellectually-demanding task your little brain can handle.

R Huse said...

Um, and where exactly did I say that Daniel had said:

"Everyone who speaks Spanish is an illegal"

I said the statement is bigoted, I never said Daniel had said it. I never even implied Daniel had said it. What I was pointing out was the racism of the person who had said language determines race.

Where your logic is failing you, and spectacularly so, is in thinking I said something that you inferred and then going on to argue that point with me. Once again, poor reading skills

OK - So you have fallen flat on your face once again for poor reading and now logic skills.

Thats two strikes, care to make it three or do you think you got it now?

Anonymous said...

I never said Daniel had said it.

I am not arguing, nor have I ever claimed, that Miglavs used those exact words, in precisely that order. He could have expressed the sentiment any number of ways. The manner in which he actually did express it -- which you clearly (and laughably) are hell-bent on ignoring -- was to write the following headline over his post about the first Democratic presidential debate to be held in Spanish:

“That important illegal alien constituency.”

You know full well that a “constituency” refers to a body of voters. In the context of this particular post, it refers to voters who would be interested in listening to a debate that is conducted in Spanish. Well, who are those voters, exactly? Who are we talking about? I know … let’s ask Daniel Miglavs. Daniel, who are they? Please be specific.

“Illegal aliens.”

Thank-you.

Tell me, RHuse: What on earth else could he POSSIBLY have meant?

It is irrelevant, Rhuse, whether you choose to acknowledge what Daniel said, or whether you said it yourself, or repeated it, or sung it or incorporated it into a nursery rhyme. HE SAID IT. The words are there. He wrote them. And whatever one may say about Daniel Miglavs, we can always count on this: the man says what he means and means what he says.

The fact that you are able to acknowledge that the sentiment itself -- Anyone who speaks Spanish is an illegal alien -- is bigoted while at the same time being incapable (or unwilling) of acknowledging that that IS the viewpoint Daniel Miglavs expressed in his September 10 post is a rhetorical feat that descends depths of stupidity and disingenuousness that are literally breathtaking, even by the abysmal standards of “Daniel’s Political Musings.”

To use your own sports analogy, you’re out, Mr. Huse.

Anonymous said...

I usually don't get a response from you folks, but hey, if your a "GRINGO" or an "INFIDEL". that is not a good place to be if those two movements who "lapel" us are considered.

One faction has sworn to kill us, the other has sworn to "kill" us with babies, and run us out of the country. Right now all I can say is "REMEMBER THE ALAMO, AN 911", cause both are coming again.

Wondering if you get it?

Whatever Daniel is or isn't you ------- libbers, isn't the problem, the problem is LaRAZA movement and not one of you have the guts to discuss it.

Anonymous said...

R Huse:

I am Latina and I do not support illegal immigration, nor do many --if not most -- of the members of my family. What is disgusting is the way it is discussed on this blog. Not a single Mexican I know would read his blog and be "okay" with it, NOT ONE. Daniel doesn't need to use hateful language and snearing statements, but he does. That turns off a lot of people and a lot more people would get on board if this kind of rhetoric wasn't the norm. I totally agree with Mr. Barnhardt on that. I want to comment on that Willamette Weekly article. It isn't so odd that Daniel is married to a Latina, what is unfortunate is the obvious ease with which he insults, degrades, mocks and bashes Hispanics. He doesn't know, and doesn't care to know, who is illegal and who isn't, and there are TONS of comments to back this up. My favorite was a while back when he made a crude joke about buying tamales from an illegal selling them from the back of her van. When asked about how he knew of her legal status he made some lame excuse, or I think may have even admitted he didn't, regardless, it is one of countless examples. What bothers me, and tears at my heart, is his wife and kids and how they REALLY feel when they hear him using his hate filled expressions. Believe me, they are hurting, but they will never tell him that. When his kids are a little older they will begin to feel the sting. How do I know? Because I am the child of an Irish father and a Mexican mother. My father and Daniel would get along real well. I have read posts with comments like "How can Daniel be a bigot when he is married to a Mexican?" How indeed. Based on a thorough scouring of his archives, Daniel appears to be much like my father, who married a Mexican girl so he could satisfy his warped need to feel "superior" and "benevolent" and also provide very effective window dressing to try and convince himself that he wasn't a bigot. You can scream and yell all you want that Daniel is not a bigot, but he is, and his posts prove it over and over and over again. Bigots dont speak like he does, bigots dont snear like he does, bigots dont ridicule and mock without mercy, even so far as women and children he draws no line. His wife wont admit it, but I know, and she knows, that it hurts to hear him say some of the things he says, that she thinks of her own childhood and her own mother when he says some of the things he says, and his children will grow to resent him, that I can guarantee, because no matter how hard he tries to suppress it, they will know that they are part Mexican and instead of being proud they will be ashamed. Been there, done that. I know. I know. You need to stop this hateful rhetoric Daniel. You are hurting your wife and kids deep in their heart, but they will never tell you because they love you. You can discuss this issue like a gentleman, as Mr. Barnhardt says.

And to the writer who said that Daniel being a member of a gang was "BS." NO, it isn't BS, it's a fact. Daniel was affiliated with the 18th St Gang, second only in violence and mayhem to MS13.

As a woman, I will remain Anonymous. If you want to make fun of me for doing that, fine. Regardless of whether there is a screen name or not, we are all, essentially, anonymous on line anyway, so you're no big man for including what may or may not be your "name" eddie, max redline and anthony delucca.

Anonymous said...

Bigots dont speak like he does, bigots dont snear like he does, bigots dont ridicule and mock without mercy, even so far as women and children he draws no line.......

Whopper of a mistake! What I meant to write is: the non-bigoted (if there is such a word) do NOT speak like he does, the non-bigoted do NOT snear like he does, etc....
One of my favorite sayings is: if it looks like a duck, walks like a duck, and quacks like a duck....it's a duck! That is Daniel's bigotry in a nutshell.

Anonymous said...

We now have TWO people who have visited this thread -- one of whom identifies himself by name -- who say that they are opposed to illegal immigration, but that they also believe Daniel Miglavs' hateful rhetoric reveals him as an unapolegetic bigot.

Miglavs may be a "reformed" and law-abiding citizen, but the mean-spirited punk bully who was drawn to the 18th Street gang is obviously alive and well -- and probably isn't going to learn a goddamned thing from either of the comments.

R Huse said...

Silly Subject Changing Anon Guy and Anoymous Latina Woman.

Thank you Anon for concluding this demonstration of how to counter the liberal who cant argue the point at hand, and thus deflects to argue a point he thinks he can defend.

1) In the first stage we saw how you deflected from the point I was making, the overt racism of the Mercury article, to one you thought he could defend, attacking me for something I never said.

2) In the second stage, it was pointed out to you that I had never said anything even close to what you claimed. This was the high point of our exchange for me. I think it was here you realized the fatal mistake. You had opened up a situation where you had to defend on two fronts, one, inability to admit the racism of the left, and then trying to impute an entirely different meaning to words I had written that were quite clear. Thus we saw the frustration and name calling when you realized how spectacularly something you had initially thought was so clever had now really backfired on you.

3) Now we are at the final stage - Basically, with you saying, it now doesn't matter what anyone says, it is whatever pops into your head to impute to the statement that matters. Now you don't want to argue about what you thought I said, now you want to argue whether or not Daniel said something,.

Changing the subject three times is a little ridiculous. Next time, stay on point, don't try and do the cutesy deflection thing, you saw where it got you this time. I think we are definitely at the third strike point with you as you clearly can not stay on topic and its now getting totally ridiculous.


Anonymous Latina Woman - Yes, I agree with you, there have been plenty of comments here that have been less than helpful, some quite racist. Frankly there is a lot of language here that I find fairly disgusting, from people whose basic premise I agree with.

However, I find the racism from the left far more disgusting, so overt and never challenged that I am genuinely stunned. Pick a group. La Raza, MeCHa or The Mercury. All display some spectacularly racist views that I quite frankly find far more ugly than most of the occasionally racist comments here. The problem is you will never see anyone on the left ever criticize one of their own for racism, now matter how overt. From the right, you just did.

Anonymous said...

Is lars aware that your criminal?

Anonymous said...

Pick a group. La Raza, MeCHa or The Mercury. All display some spectacularly racist views that I quite frankly find far more ugly than most of the occasionally racist comments here. The problem is you will never see anyone on the left ever criticize one of their own for racism, now matter how overt. From the right, you just did.

Your post above is dead on, ALL THE GROUPS MENTIONED ARE SCARY, AND THE LEFT JUST LET THEM CONTINUE, ONE AT A STATE UNIVERSITY, WE WILL PAY FOR THAT SOMEDAY SOON.

Anonymous said...

Dear Anon 7:15:

ROTFLMAO! "OCCASIONAL RACIST COMMENTS HERE......" OKAY, if by occasional you mean, "occasionally, throughout the day, I go poop." or "stir the sauce occasionally." Then yes, occasionally, throughout each day, there are racist words and phrases posted by Daniel and Friends. LOL, LOL...
As far as "the left" never criticizing one of their own for racism...wrong, wrong, wrong. I am active in the "left" community and you could not be further from the truth. People are called on the carpet all the time within the groups where I am active. All the time. How would you know? Do you attend "left" functions? We have extremely heated debates about race, immigration, you name it. And in the groups I belong to, racism and reverse racism is NOT TOLERATED. Groups like LaRaza are no different than militant groups that sprang up in the 60s, including the Black Panthers. They DO NOT reflect the view of most Hispanics. Ask them. MeCHa is not a racist organization, although I am sure there are racists who are members, just like OFIR. As a former groups monitor at University of Idaho, I have been to many a MeCHa meeting. I have NEVER witnessed OVERT racism as part of their program, and I have been there when racist comments were made and they were quickly confronted. There is not much tolerance for MeCHa kids who do not practice statesmanship. I have also been to numerous MeCha meetings in Portland. Again, how would you know this goes on? Have you ever been to MeCHa meeting? Have you visited their website? Have you spoken or interacted at length with any kids who are involved with MeCHa? Of course, like OFIR, there are some who do little to hide their contempt, but there's plenty of contempt to go around, isnt there? I guess there is always going to be a certain percent in EACH group, so neither one of is innocent. I for one, am one of many the "left" who does raise their voice, loudly (as you can see) whenever someone attempts to practice racism and bigotry at a meeting or function where I am present, you have my word on it. You also have my word that there are plenty of people on the left who want something done about illegal immigration, we just don't like the nasty and distasteful way most of you guys (meaning Daniel and Friends) go about it.

Anonymous said...

Thank you RHuse for concluding this demonstration of how to get your ass kicked into a bloody pulp in a debate and then claim that you won.

1) In the first stage we saw how --when you were critical of bigotry from one source -- you were reminded that in a previous post you had acknowledged that a statement made by the owner of this blog was bigoted.

2) In the second stage, Miglavs' original statement and your own were thoroughly examined side-by-side.

3) In the third and final stage, the debate descended to the level of Sesame Street, in which it had to be explained to you that it is possible for two different sentences and/or combinations of words to mean the same thing.

Thanks again, RHuse, for another delightful discussion. It was as maddening as it was entertaining.

R Huse said...

Hey, it looks like we have some progress! Yay!

>1) In the first stage we saw how --when you were critical of bigotry from one source -- you were reminded that in a previous post you had acknowledged that a statement made by the owner of this blog was bigoted.

No, I acknowledged that a statement attributed to the owner was bigoted. I never said the owner in fact made it. I never addressed that issue as my statement was concerned with something entirely different.

Stage one was really more an illustration of a classic, and silly, left wing attempt at trying to deflect from my original point, and thus proving it in the process, that the left will NEVER, ever ever ever, admit the overt racism when it comes from one of their own.

That was the main thing proven in step one, quite unarguably at this point I might add.

Ok, so, pretty clear you lose on that point.

>2) In the second stage, Miglavs' original statement and your own were thoroughly examined side-by-side.

Actually they weren't. My statement was talking about the racism and folly of classifying people racially according to language. I pasted the quote in question to prove this point, which it clearly does. Anon went on a harangue imputing to me words that are clearly not there. Sorry you mixed that up as some sort of analysis.

Alright, so that's two points you lose on.

3) In the third and final stage, the debate descended to the level of Sesame Street, in which it had to be explained to you that it is possible for two different sentences and/or combinations of words to mean the same thing.

Sure, it is true two different sentences can mean the same thing, however that is not the case here as shown in part two above. My words clearly did not say what Anon claimed. That little bit of folly was pretty well trounced when I pasted the quote by me. I do appreciate your classifying Anons basic argument as Sesame Street level though. It was, as he clearly wanted to debate some side issue which I had never addressed and which I really don't have much interest in i.e. him imputing words to Daniel, then to me, thus some sort of zany claim I had called Daniel a bigot or something. At least you recognized that.

I'll give you a half point for recognizing the Sesame Street level of Anons argument. It is clearly ridiculous to argue someone's point by imputing an entirely different meaning on an unrelated quote about something the a third person doesn't appear to have ever said. I mean that is truly idiotic but at least you appear to recognize that. Good for you! there is hope yet.

Ill also give you a quarter point on another thing. Two sentences can mean the same thing. Here it irrelevant though because me saying a statement is bigoted is not the same as me saying Daniel first of all made the statement ( he didn't, it was imputed to him ) and then going on to say that by extension I am saying Daniel is bigoted. That's drawing two conclusions out from a statement I made that was on an entirely different matter.

Ok, so you are right on 3/4 of a point Anon was arguing on a silly Sesame Street level, and two sentences can mean the same thing. That doesn't do much to disprove my basic point, that the left will never admit racism from one of their own, as clearly shown in the Mercury article. but ok.

I do have to say that I admire you for taking another stab at this but aren't you getting tired of having the basic flaw in Anons reasoning pointed out over and over?

Anonymous said...

" ... I acknowledged that a statement attributed to the owner was bigoted ..."

VICTORY!!!

" ... I never said the owner in fact made it."

:::: sigh ::::

Anonymous said...

r huse says this is "proven":

.....that the left will NEVER, ever ever ever, admit the overt racism when it comes from one of their own.

How was this "proven?" Who "proved" it? Just because you say it is so does not "make it so." I, for one, call EVERYONE on the carpet if they make a statement that is unfair to ANY race. I know that I am hardly alone. You are making sweeping statements with only your personal anecdotal experience. My personal experience is vastly different. So who is "proven?"

Anonymous said...

In the mind of a Miglavian, a white person is not bigoted toward Latinos unless he has burned at least three crosses in the front yards of Latinos while screaming "I hate wetbacks!" at the top of his lungs.

However, even if they do that, it doesn't really "prove" anything. [Miglavians always insist that you “prove” they are racist, since it is never enough to let their own bigoted comments speak for themselves.] If you want to prove it, you must capture at least one of the cross-burning episodes on high-definition video while they are clearly narrating their own actions. [Example: “Watch me now as I pour gasoline on the lawn.”] You must also get them to sign an affidavit (notarized, of course) testifying to the fact that they are, in fact, racist.

Note: The affidavit-signing must also be recorded on video, so we know it’s not a “lib” imposter.

Then comes the defining moment:

The Miglavian will watch the video and laugh indignantly, claiming that you really haven't proved anything, and will once again claim the moral high ground.

Welcome to Miglavia.

Anonymous said...

LOL Anon 11:58. Your observations on Miglavia are very enlightening. Thanks for the insight on the Miglavians. It's all making sense now...lol.

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