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American Civil Liberties Union

Is the FBI Setting the Stage for Increased Surveillance of Black Activists?

American Civil Liberties Union - 9 hours 38 min ago
The ACLU and CMJ are demanding more information on why the FBI recently named “Black Identity Extremists” a threat.

A recently leaked FBI “Intelligence Assessment” contains troubling signs that the FBI is scrutinizing and possibly surveilling Black activists in its search for potential “extremists.”

The report, which the FBI’s Counterterrorism Division prepared, identifies what it calls “Black Identity Extremists” as security threats. Their “perceptions of police brutality against African Americans … will very likely serve as justification” for violence against law enforcement officers, the report claims. Today, the ACLU filed a Freedom of Information Act request with the Center for Media Justice seeking other records regarding the FBI’s surveillance of Black people on the basis of a supposed shared ideology, including records using the term “Black Identity Extremists.”

The report is disturbing on several levels, starting with the label “Black Identity Extremist.” Its definition of the term is so confusing as to be unintelligible:

“The FBI defines black identity extremists as individuals who seek, wholly or in part, through unlawful acts of force or violence, in response to perceived racism and injustice in American society and some do so in furtherance of establishing a separate black homeland or autonomous black social institutions, communities, or governing organizations within the United States.”

What seems to be a made-up term raises concerns that the FBI created the designation to enhance government scrutiny of Black activists, including people involved in Black Lives Matter, which some wrongly blame for incidents of violence and label a hate group. By focusing on ideology and viewpoint in defining what constitutes a so-called “Black Identity Extremist,” the FBI is spending valuable resources to target those who object to racism and injustice in America.

The report is also flawed in its conclusions and methodology. Any violence against law enforcement officers is unacceptable, but the FBI’s focus on supposed “Black Identity Extremists” appears misplaced. Studies show that attacks against police officers are extremely rare and that white men carry out the overwhelming majority of those attacks.

In addition to missing that context, the report offers no evidence to support its assessment that “Black Identity Extremists” are a threat because they supposedly share a violent ideology. Instead, the FBI’s conclusion is premised on a description of six separate violent incidents and the “key assumption” that those incidents were ideologically motivated. In other words, the report appears to assume its own core conclusion. The report even contradicts itself by acknowledging that the six incidents appear to have been “influenced by more than one ideological perspective.”

The report is yet another indication that the FBI thinks it can identify security threats by scrutinizing people’s beliefs and speech. In making its assessment, the FBI relied on individuals’ use of social media, including who they associated with, what search terms they used, and what content they liked. But there’s nothing wrong with having radical or “extreme” ideas, and evidence shows that the overwhelming majority of people who hold radical beliefs do not engage in or support violence.

The danger, of course, is that Black activists now have even more reason to be concerned that the law enforcement will surveil and take action against them for engaging in constitutionally protected speech. In an interview with the Guardian, one BLM activist said the “Black Identity Extremist” classification would “criminalize anyone who is already in the movement.” This is a concern that even an international human rights expert from the U.N. expressed when reporting on the chilling effects of police practices against protesters. Such targeting of Black activists also throws open the door to racial profiling.

The FBI’s history gives Black activists plenty of cause for concern. In the 1960s, the FBI conducted extensive surveillance of those it deemed “Black Extremists” and “Black Nationalists” under the covert COINTELPRO program. The FBI has been “mapping” racial and ethnic communities in the United States, including the Black population in Georgia, based on crude and false stereotypes about particular communities' propensity to commit certain crimes. That mapping included scrutiny of protests against police killings.

And FBI domestic terrorism training presentations conflate examples of armed resistance, or armed self-defense, by older organizations like the Black Panthers and the Black Liberation Army with beliefs expressed by various modern groups to suggest, without evidence, that these latter-day groups pose a similar threat. More recently, Department of Homeland Security records from 2014 and 2015 show that government officials trolled social media accounts to map and collect information on Black Lives Matter protests and supposedly related events.

The FBI’s recent “Intelligence Assessment” is yet another example of using “domestic terror” and “extremism” as a smokescreen for silencing constitutionally protected speech and unfairly targeting civil rights activists through surveillance. By conjuring this category of “Black Identity Extremists,” the FBI dangerously equates domestic extremist movements that are actually on the rise, like white supremacists, with one that looks near nonexistent.

The public needs to know more about the FBI’s activities related to what it calls “Black Identity Extremism.” Obtaining the agency’s records on these activities is one step toward protecting the free speech and privacy rights of Black activists.

As the Weinstein Scandal Sinks in, Where Do We Go From Here?

American Civil Liberties Union - Tue, 10/17/2017 - 14:15
Here’s how to start making workplace sexual misconduct and discrimination a thing of the past.

In the wake of bombshell reports by the The New York Times and The New Yorker detailing three decades of sexual misconduct by movie mogul Harvey Weinstein, the revelations keep coming. So do the questions: How did such flagrant misconduct stay an “open secret” for so long? Just how many women were harmed? And how do we make sure that such an egregious abuse of power never happens again?

Sexual harassment that is “severe or pervasive” was deemed by the Supreme Court to be illegal sex discrimination more than 30 years ago, when Mechelle Vinson, a bank employee in Washington, D.C., challenged her manager’s three-year campaign of abuse, including rape. And it’s been nearly a quarter-century since the court clarified that conduct becomes illegal harassment at the point that a “reasonable person” would find it abusive, even if it never gets physical.

So it shouldn’t be news to anyone that arriving at a business meeting in a bathrobe and asking for a massage crosses the line. Yet here we are again. Fox News, Uber, the Marine Corps — each new sexual harassment scandal prompts an outpouring of “me, too” stories to remind us that, whatever the law might say about such conduct, culture follows different rules.

As these and other scandals show, that culture can be toxic in fields where women are in the minority, especially in leadership roles: entertainment, media, and the military, not to mention Wall Street, law enforcement, and science, technology, engineering, and math (STEM) fields. Indeed, Weinstein was enabled by an industry in which the top executives at film studios, according to a 2016 study, are on average 80 percent male — resulting in rampant discrimination in behind-the-camera hiring decisions, as the ACLU has successfully argued to the U.S. Equal Employment Opportunity Commission.

It’s time to get to work on making antidiscrimination law’s promise a reality. Here’s how.

Know the warning signs and be vigilant. Last year, the EEOC Select Task Force on the Study of Harassment in the Workplace issued a landmark report identifying 12 “risk factors for harassment.” Among them are “workplaces with ‘high value’ employees” — stars who receive hands-off treatment when it comes to workplace rules — along with “homogeneous workforces” and “workplaces with significant power disparities.” Sound familiar? (Needless to say, if it is true, as reported, that Weinstein’s employment contract contemplated the Weinstein Company making payouts to victims, the company wasn’t just risking, but assuming, that abuse would occur.) Employers are wise to remain vigilant to worrying trends — like why are the rates of women’s turnover so high? — and to not shrink from answering such questions.

Set the tone from the top and show you mean it. Most businesses today claim “zero tolerance” for harassment, and some may even have an anti-harassment policy. But these are worthless without accountability. Indeed, companies that have managed to build businesses worth billions are curiously helpless when it comes to tackling harassment. Often, they wait for scandal to strike, then conduct an aggressive investigation and take decisive action against wrongdoers. For example, Fox hired a prestigious law firm, as the Weinstein Company just did; Uber hired former Attorney General Eric Holder. Instead, company leaders should state their intolerance of harassment loudly, often, and through multiple channels — and when they are put on notice of a problem, must act promptly and decisively.

Men: Be allies in deed, not just word. More than 80 percent of sexual harassment charges filed with the EEOC are brought by women. Put bluntly, nothing will change if they are the only ones monitoring our work environments. Along with vocal male leadership, it’s also critical that every male ally in the rank and file be, in the words of a recent Harvard Business Review report, “an intentional exemplar and fierce watchdog for the behavior of other men.”

Make it safe to come forward. Study after study tells us what we already know: Fear of retaliation or other adverse action keeps victims silent. Indeed, one report found roughly 90 percent of people who say they have been harassed never filed a formal complaint. No wonder harassment scandals follow a predictable arc. A woman or two speak up, then another, and another, until the tally is in the double digits. Employers must not let those numbers multiply in silence. Rather they must make plain, through words and actions, that each person who speaks up is safe. 

As history has shown, dislodging the cultural roots of sexual harassment will take years, even generations. It is possible, but we mustn’t wait until the next big scandal to relearn what women have been telling us for decades: Harassment happens in virtually every workplace. Employers need to deal with it. Now.

New Orleans District Attorney Leon Cannizzaro Breaks the Law to Enforce It. We’re Holding Him Accountable.

American Civil Liberties Union - Tue, 10/17/2017 - 10:45
Cannizzaro and elected district attorneys like him must answer to the communities that elect them.

Renata Singleton was the victim in a criminal case and served five days in jail. That’s right, the victim. And Orleans Parish District Attorney Leon Cannizzaro is to blame.

In the fall of 2014, Renata Singleton and her boyfriend got into an argument at her apartment. He took her phone and slammed it on her porch. She wanted him out of the house, so she called the police, and they took him away. A criminal case was brought against her boyfriend. After Singleton told the Orleans Parish District Attorney’s Office that she had resolved things with him and wanted to move on, Cannizzaro’s office didn’t listen. Instead, agents left two “subpoenas” at her door demanding she appear at its office for a private interview.

Only they were not subpoenas at all.

Instead the documents — created by Cannizzaro’s office — were fake. Their purpose? To coerce victims and witnesses like her to talk to prosecutors in secret, off-the-record meetings, often by threatening a fine and imprisonment for failure to comply. Cannizzaro’s fake subpoenas have taken many forms but some bear the Office’s seal and in all respects look like valid subpoenas.

When Singleton did not appear as instructed by the fraudulent documents and other valid subpoenas that were never properly served, Cannizzaro’s office went to court and asked a judge that she be jailed as a material witness. It did not tell the court that the subpoenas were illegal. It obtained an arrest warrant and a $100,000 bond against her. By comparison, the judge ultimately gave her boyfriend a $3,500 bond.

When police officers came to her apartment to arrest her, she told them she would go to Cannizzaro’s office the next morning. There she informed the prosecutors that she did not want to pursue the case. She told them that she was uncomfortable with how the district attorney’s office had treated her. They then had her arrested on the spot.

Singleton had never been arrested in her life. But because of Cannizzaro’s illegal policies, she spent five traumatic days in the Orleans Parish Prison. Singleton was housed alongside people charged with serious crimes. She was terrified and worried about her children and about losing her job. Her boyfriend, on the other hand, avoided a jail sentence altogether by pleading guilty. He received probation for two simple misdemeanors. Singleton’s testimony was never needed against him.

Sadly, Singleton’s ordeal is not an isolated incident. She is but one of many victims of Cannizzaro’s longstanding policy of using illegal means to coerce and intimidate people to talk to prosecutors in secret meetings. Louisiana law is clear on this point. Unless served with a proper subpoena that has been approved by a judge, no witness is obligated to meet with anyone from the district attorney’s office outside of court. And even then, she may decline to talk.

And the rot runs even deeper.

Cannizzaro’s office also retaliates against witnesses when the information they share does not support the prosecution’s case. Our client Marc Mitchell was shot multiple times in an attempted murder. Prosecutors in Cannizzaro’s office pressured Mitchell to testify that another man had given an order to the man who shot him — despite the fact that Mitchell did not know if the man gave such an order. When Mitchell decided to stop interacting with Cannizzaro’s office because of how they were treating him, they had him arrested on a material witness warrant based on false information.

After obtaining material witness warrants, Cannizarro’s prosecutors have also left victims and witnesses languishing in jail until the office decides it needs them again for its cases. A rape victim waited for 12 days before she was brought to court from jail. A victim of child sex trafficking spent 89 days in jail before she went before a judge.

Instead of protecting communities, Cannizzaro has destroyed their trust and hurt the very people his office is supposed to protect. In a very real sense, he victimizes crime victims a second time.

His office’s coercive and intimidating methods also disproportionately target the Black community. In fact, every person we’ve identified so far as jailed by his office on the basis of false information, including fraudulent subpoenas, is Black.

Reducing mass incarceration and racial disparities in the criminal justice system will only occur once prosecutors — the most powerful players in the system — are held accountable. District attorneys like Cannizzaro who act with unchecked power rarely expect to be held accountable.

That has to change.

With Civil Rights Corps, we filed suit in federal court in New Orleans on behalf of people with experiences that echo Renata Singleton’s as well as on behalf of SilenceIsViolence, a New Orleans-based nonprofit organization that supports crime victims and witnesses for the violations of their constitutional rights. By asking the court to stop these practices and asking for civil damages, we’re looking to hold District Attorney Cannizzaro and his office accountable for its unlawful actions against crime victims and witnesses.

Earlier this year, the ACLU Campaign for Smart Justice announced a new multi-year initiative to make sure that prosecutors who break the law are held accountable. This lawsuit is the first of many to come across the country as we work toward much-needed prosecutorial reform that begins today in Orleans Parish.

The CIA Is Playing Coy About Trump’s First Raid In Yemen

American Civil Liberties Union - Mon, 10/16/2017 - 14:30
The CIA's attempt to use Glomar to keep the public in the dark about its role in the Yemen raid is absurd.

Just days after Donald Trump assumed the powers of the presidency, he convened a group of top intelligence and military officials for dinner at the White House. The group included Secretary of Defense James Mattis and CIA Director Michael Pompeo. Presumably they were not there for the steak.

Instead, they were there to discuss and sign off on an intelligence-gathering raid in al Ghayil, Yemen — the first of its kind under the Trump presidency, though planning for it had commenced under his predecessor. Days later, Navy SEAL Team 6 carried out the raid, but early reports were that the raid went awry. One service member and multiple Yemeni civilians — the exact number remains disputed — were killed.

Still, the White House defended the raid as a success. From the White House podium, then–Press Secretary Sean Spicer explained that “the goal of the raid was intelligence-gathering. And that’s what we received, and that’s what we got. That’s why we can deem it a success.”

But criticism continued, and reports surfaced that prior to the raid, President Trump had exempted the area of Yemen in which the raid took place from rules governing the United States’ use of lethal force outside of war zones. Those rules were put in place by President Obama and were intended — however flawed they were — to limit civilian casualties.

To provide the public with information about the legal and factual bases for the raid, the administration’s justification for circumventing the Obama-era rules, and the outcome of any government investigations into what happened, the ACLU filed a Freedom of Information Act request in March with various government agencies. All but one has agreed to search for records.

That outlier is the CIA, which instead offered a so-called “Glomar response” refusing to confirm or deny the existence or nonexistence of records relating to our request, asserting that to do so would reveal intelligence secrets. (If “Glomar” sounds familiar, that’s because the ACLU has been fighting such responses for many years — most recently, in connection with the U.S drone program.)

This week, we went to court to challenge the agency, filing a motion asking the court to rule that the CIA’s response is unlawful and to order the agency to produce responsive records. Glomar responses can sometimes be appropriate, but only in unusual circumstances and with a particularly strong justification for secrecy. That is because a Glomar response cuts off an agency’s FOIA responsibilities at the threshold, preempting any need for the agency to defend the secrecy of particular, identified, responsive documents.

Here, the CIA doesn’t have one. As the D.C. Circuit explained in a separate case brought by the ACLU to challenge the CIA’s use of Glomar to hide its records about the drone program, merely acknowledging the existence of records would not reveal details about the CIA’s role. And anyway, one of Spicer’s statements about the raid placed the CIA director at the dinner meeting during which the “intelligence gathering” raid was approved. It’s entirely unsurprising that the CIA would be involved somehow in a raid like this, and the agency’s attempt to use Glomar to keep the public in the dark about it is absurd.

As one federal judge wrote in an ACLU Glomar case more than a decade ago, “[t]he danger of Glomar responses is that they encourage an unfortunate tendency of government officials to over-classify information, frequently keeping secret that which the public already knows, or that which is more embarrassing than revelatory of intelligence sources or methods.” That’s exactly what the CIA is trying to do here, and that’s why we’ve gone to court to stop it.

I’m a Transgender Boy, and I’m Suing My Health Insurer to Cover the Medical Care I Need

American Civil Liberties Union - Mon, 10/16/2017 - 12:15
Why should I be denied essential health care just because I’m trans?

My name is Pax Enstad, and I’m a high school junior, a son, a brother and a friend.

I’m also a transgender boy. When I tell people this, it seems like everyone wants to know: What’s the precise moment when you realized you are transgender?

The thing is, there was no single moment, no bolt of lightning that suddenly hit me. It was more of a process of admitting who I am to myself.

When I hit puberty, I felt really gross and unhappy with my body. I stopped swimming and doing things outside, and started wearing baggy shirts. I asked my parents for a chest binder, but I didn’t tell them it was to flatten the breasts I was getting. My body was a thing that I tried to forget about.

I’m close with my sister, Maya, who is two years older and in college now. When we realized we both liked girls, we decided to come out to our parents together. On the day that same-sex marriage became legal nationwide, Maya and I bought rainbow balloons and streamers. We went to the Pride parade with our parents and afterward, we gave them a rainbow card that said, “We’re gay.”

I had yet to confront my own fear of being transgender. I thought, maybe all these feelings will go away, but they didn’t. Existing in a body that didn’t feel like mine became increasingly unbearable. Gender dysphoria is the clinical diagnosis, and the distress it caused me was severe; I panicked when I didn’t have my chest binder on. I put off telling my parents about my being transgender. I was embarrassed about it, and didn’t want to say anything until I was totally sure. By the time I finally told them, I knew I needed to have surgery to confirm the gender identity I’ve had all along.

What had been a years-long process for me was for my parents a sudden revelation. They love me and have done their best to be supportive of me. But PeaceHealth, my mom’s employer, refused to pay for the chest reconstruction surgery my doctor prescribed to treat my gender dysphoria, citing an exclusion for “transgender services.” It felt terrible to know that PeaceHealth, a nonprofit health care system, had decided that transgender people like me don’t deserve coverage for the same double mastectomy surgeries it will cover for others. It was treating essential treatment as something frivolous.

The possibility that PeaceHealth’s refusal to cover my surgery might lead to a delay in me receiving the surgery made me extremely anxious and desperate. I told my parents I could not wait. They could see this was not about making a “choice” to have surgery – this was something I needed to be me. To come up with the $10,000 to pay for it, my parents dipped into my college fund and took a second mortgage on our house.

After I had chest reconstruction surgery, I felt like a huge weight had been lifted.

After I had chest reconstruction surgery, I felt like a huge weight had been lifted. It was also literally true; I had lost six pounds. I felt so light and amazing. The relief was immediate, like, ‘Oh finally, that’s over!’

I went to homecoming with my best friend and was able to wear boys’ shirts I couldn’t wear before. I looked dapper and I felt proud.

But I’m still devastated by the fact that simply because I’m transgender I was refused coverage for the medical care that my doctor prescribed for me. With the help of the ACLU, we’re bringing a lawsuit against PeaceHealth because no one should be refused care because of who they are.

Gender dysphoria is real and serious. If left untreated, it can have terrible consequences, including suicide. Surgeries like the one I had are recognized as medically necessary treatment by every major medical association in America. Ensuring that transgender people get the health care they need will help save lives.

Muslim Ban 3.0 Is Heading to Court — Here’s What You Need to Know Right Now

American Civil Liberties Union - Fri, 10/13/2017 - 16:45
Trump’s latest ban is largely the same as the first two, in terms of who will suffer, but worse — because it has no end date.

This Monday, we are back in court, fighting to block Muslim Ban 3.0 before it can go into effect on October 18, 2017. President Trump’s latest proclamation is largely the same as his first two bans, in terms of who will suffer, but worse — because it has no end date.

Read our legal analysis here:

“The new ban indefinitely bans people from Iran, Libya, Syria, Yemen, and Somalia, five overwhelmingly Muslim countries that were also targeted by the earlier versions. The order emphasizes that countries are being banned because they have not cooperated in providing information for visa vetting. Yet Somalia remains banned even though it does live up to the government’s new visa cooperation standards.

The order adds restrictions on Chad — another Muslim-majority nation — along with North Korea and Venezuela. The inclusion of two countries that are not Muslim majority doesn’t even qualify as a fig leaf. North Korea accounted for just 61 affected visas last year — out of more than 75 million visitors to the United States.

And Venezuela as a country is not banned in any meaningful sense. Only certain Venezuelan government officials and their families are affected, and those individuals are only barred from obtaining tourist and temporary business visas. In contrast, nearly every single person from the Muslim-majority countries is barred from getting a green card, no matter what family, business, or other U.S. connections he or she has.

The total numbers underscore the scope of suffering the new ban will impose, if allowed to go into effect, and the hugely disproportionate impact it will have on Muslims. According to an analysis of the number of U.S. visas granted by category in 2016, the new ban would bar tens of thousands of individuals from Iran, Libya, Syria, Yemen, and Somalia annually from obtaining green cards.

Many of these are people coming to the U.S. to join their husbands, wives, parents, and children who are citizens or lawful permanent residents. These families would be separated indefinitely. By contrast, the impact on people from countries newly included in the ban is small: 40 immigrants from Chad can expected to be blocked, nine from North Korea, and none at all from Venezuela.”

While we fight this version of the unconstitutional ban in court, but we need the public once again to raise its voice and declare, “No Muslim Ban Ever.”

Colorado’s Alamosa Municipal Court Tramples on the Rights of Poor People

American Civil Liberties Union - Fri, 10/13/2017 - 14:30
A local municipal court judge has run his courtroom like a fiefdom and ruined people’s lives in the process.

Municipal judges have incredible power over the lives of the people who enter their courtrooms. When these judges refuse to follow the law and instead run their courtrooms like fiefdoms, they can ruin lives. This is starkly true for people already living in poverty who must appear in Colorado’s Alamosa Municipal Court.

In our new investigative report, “Justice Derailed,” we examine Alamosa’s local court, which operates under the sole leadership of Judge Daniel Powell. This court stands out for the frequency and seriousness of its constitutional abuses, which most often affect low-income individuals. The striking inequity in treatment between defendants with means and those without reveals the unfairness of a system that is supposed to be just, but which is actually the opposite.

While Alamosa is the focus of this report, it is not alone in its abuses. Colorado has more than 200 local city courts that deal mostly with low-level offenses, which are often tied to drug addiction and poverty.

For six years, the ACLU of Colorado has been investigating injustices in municipal courts. We have challenged debtors’ prison practices through letters sent to several municipalities and settlements reached in Colorado Springs and Aurora. We also brought evidence to the state capitol resulting in legislation to address debtors’ prisons, the lack of counsel in municipal courts, and lengthy waits in jail to see a municipal judge when an individual cannot afford to post bond.

While courts are meant to address violations of the law, many municipal judges violate the law themselves by abusing their power. Relying on the premise of “home rule,” municipal courts function virtually unchecked by outside scrutiny, operating outside the reach of the state’s well-regulated court system. In December 2016, Chief Justice Nancy Rice of the Colorado Supreme Court reported to the state legislature that because municipal judges are “hired by each city … we don’t have anything to do with these folks.”

Without meaningful oversight or accountability, civil liberties violations often remain unaddressed as it is extremely difficult to bring recalcitrant courts in line. That’s why the ACLU of Colorado produced “Justice Derailed,” which shines a light on one municipal court to show the damage caused by unaccountable local justice systems and makes a call for reform. By using transcripts, courtroom audio, and case summaries, the report demonstrates how Judge Powell has violated state law.

Despite recent state legislation targeting debtors’ prisons, Judge Powell has continued to use jail and the threat of jail to collect money from defendants who are too poor to pay their court debt. One such defendant was convicted of two traffic offenses and petty theft for stealing bottles of water. The defendant was required to appear at least nine times in court over seven months under the threat of jail to “check in” about his payment status. At each appearance, he explained that he couldn’t pay his fines of nearly $900.

The defendant was unemployed, caring for a sick loved one, and going through addiction treatment. Judge Powell told him there is “no excuse for nonpayment.”

The judge went on to say, “Make sure you have those payments made, or make sure you bring your toothbrush, because you’ll have to go over to the jail.” Judge Powell carried through with this threat when the defendant missed his next payment, issuing an arrest warrant.

In Alamosa Municipal Court, the right to counsel is another illusion of justice. There are no lawyers for defendants facing incarceration, even though almost all offenses in Alamosa are subject to possible jail time. In violation of theSixth Amendment right to counsel, nearly all defendants plead guilty with the clerk — outside of court — without ever waiving their right to an attorney. They then proceed through to conviction and sentencing without representation. Worse still, Judge Powell denies counsel even when expressly requested. One defendant asked: “Can I have an attorney?” Judge Powell replied: “Let’s talk about your plea first.”

Municipal defendants, most of whom have not yet been convicted of anything and are innocent in the eyes of the law, often must stay in jail for weeks at a time, at significant cost to taxpayers, simply because they can’t afford the money bail set in their case. The Alamosa Municipal Court meets at most six days per month. Due to this infrequent schedule and Judge Powell’s penchant for setting unreasonably high money bond, defendants endure lengthy jail stays simply waiting to appear in court.

One defendant was convicted of petty theft of goods worth $7.45 and fined $570. On a payment date, she called to inform the court that she couldn’t make it in due to snow and road closures. Nevertheless, a warrant was illegally issued, and she was arrested, spending 8 days in jail waiting for the next session of court.

At this appearance, she asked, “Can I say something?” Judge Powell replied, “Nope.” Powell refused to reduce her bond to an amount that she could afford, so she remained in custody for an additional 34 days until her next court date. The total 42 days that she spent in jail cost the City of Alamosa $2,668.26.

Judge Powell’s practices at the Alamosa Municipal Court abused the Constitution and trampled on peoples’ rights. Since the release of “Justice Derailed” last week, the Alamosa City Council has been discussing ways to reform  its municipal court. Unfortunately, similar abuses may be taking place in other municipal courts in Colorado, without scrutiny and damaging countless lives.

Donald Trump Thinks the Freedom of the Press Is ‘Disgusting’

American Civil Liberties Union - Fri, 10/13/2017 - 14:30
A running list of Trump’s many attacks on the press.

Donald Trump has pledged to defend the Constitution — even an article that doesn’t exist — but he can’t seem to lay off that pesky First Amendment.

Trump has mocked the First Amendment’s right to freedom of religion by calling for a ban on Muslims from entering the country and criticized those who believe in the freedom of speech as “foolish people.” He has also endorsed attacks on protesters and the imprisonment of people who burn the flag.

And he has made it very clear that he doesn’t stand for the freedom of the press. As a presidential candidate, Trump told supporters he would “open up our libel laws” to sue journalists. “We’re going to have people sue you like you’ve never got sued before,” he promised.

Trump the candidate also blacklisted reporters and entire news outlets from campaign events, referred to journalists as “scum” and “slime,” and mocked a reporter for having a disability. He vowed to sue women who reported incidents of sexual harassment and assault, along with the outlets that covered their accounts, and threatened a lawsuit against a Hispanic journalist group for calling out his bigoted remarks.

"I would never kill them but I do hate them,” he said of reporters. “And some of them are such lying, disgusting people.”

This onslaught didn’t stop once Trump assumed the presidency. From the most powerful perch on the planet, he has continued to wage attacks on the free press, further revealing his authoritarian impulses and disdain for the First Amendment.

Below we provide a running list of the attacks that the president has made on the press since assuming office. We’ll keep this list updated since, unfortunately, we don’t expect them to stop.

Trump has:

  1. Said it is “frankly disgusting the way the press is able to write whatever they want to write” in a meeting with Canadian Prime Minister Justin Trudeau.
  2. Threatened to cancel the broadcast licenses of media companies that offer negative coverage of him.

  3. Had the White House press secretary, Sarah Huckabee Sanders, call on ESPN to fire Jemele Hill for criticizing him.
  4. Tweeted mocking images of him wrestling a CNN reporter and his campaign hitting a CNN reporter with a train.
  5. Overseen a Justice Department review of policies for subpoenaing media organizations in an effort to crack down on both whistleblowers and journalists.
  6. Pledged to “fight the #FakeNews” with a Polish leader hostile to press freedom.
  7. Attacked reporters while speaking with Russian President Vladimir Putin, who has fostered a climate of violence against journalists.
  8. Said that his mission to “drain the swamp” begins “with the Fake News!

  9. Reportedly asked then-FBI Director James Comey to jail reporters who publish classified information.
  10. Tasked his former chief of staff with looking into changing the country’s libel laws.
  11. Explored the prosecution of WikiLeaks for publishing CIA and State Department materials.
  12. Labeled the “fake news” media “the enemy of the people.”
  13. Accused the media of lying about his “very nice” conversation with the Australian prime minister. Ultimately, a leaked transcript of the call showed it was Trump who was lying.
  14. Urged someone to buy the New York Times to “either run it correctly or let it fold.”

While Trump tries to portray journalists at the “enemies” of Americans, it’s his attacks on the press that amount to an assault on the cornerstone of American democracy: the First Amendment.

How Trump's Threats Against the NFL Could Violate the First Amendment

American Civil Liberties Union - Fri, 10/13/2017 - 09:30
Official threats of retaliation can chill speech, with or without actual punishment.

Across the country, African-American athletes have been taking a knee or raising a fist during the national anthem. They are protesting the killings of Black men and women by law enforcement officers and the systemic failure to hold anyone accountable for those killings. They have put their lives and livelihoods on the line for doing so.

As the Supreme Court has long recognized, such protests are protected speech:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Like others, President Trump is free to criticize the athletes for protesting. But now he has put the First Amendment in play by threatening the NFL and its teams with tax consequences if they don’t discipline players who exercise their First Amendment right to protest police brutality and racial injustice.

Public officials have the right to express themselves and use their celebrity to state their views. But the First Amendment prohibits them from threatening “to employ coercive state power” against private entities “to stifle protected speech” of individuals exercising their constitutional rights.

For example, in 2000, a minister bought billboard space in the Staten Island borough of New York City for two advertisements that offended the borough president. The borough president then sent a letter to the billboard company noting that it “derives substantial economic benefits” from its billboards and calling on it to “discuss further the issues I have raised.”

Essentially, the borough president delivered the veiled threat, “Nice billboards you’ve got there. It would be a shame if anything happened to them.” Unsurprisingly, the company pulled the advertisements. The minister sued, claiming a violation of his First Amendment rights.

As the Court of Appeals for the Second Circuit found, the official’s “implicit threat of retaliation” violated the First Amendment by inducing the owner to silence the minister’s speech. The same issues are raised by President Trump’s threat to take action against the NFL or its teams if they don’t prohibit players from taking a knee.

Even if the NFL or its teams don’t ultimately suffer loss because Congress or the IRS don’t take up the president’s cudgel, that’s not the point. The point is that no governmental official, from the president on down, should ever threaten anyone with official action of any kind for the exercise of protected speech. Official threats alone can chill speech, with or without actual punishment. The bully pulpit should not be used to bully anyone into conformity, control, or censorship.

By attacking the athletes, President Trump is reading from the “Southern strategy playbook” in more ways than one. He is stoking racial bigotry by demonizing them for exercising their First Amendment rights, and he is continuing the sordid tradition of silencing protests against racial injustice. For example, southern states sought to silence the civil rights movement by criminalizing protest and awarding millions in damages against boycott organizers. The president’s rhetoric is following in those disgraceful footsteps.

Along with his threat to retaliate against NBC for its reporting, the president’s broadside against the NFL makes him sound like a nascent dictator, not the president of a constitutional republic. Now more than ever, that is why we need the First Amendment and why the ACLU defends it.

I’m a Sexual Assault Survivor, and for That I Will Not be an AmeriCorps Member

American Civil Liberties Union - Thu, 10/12/2017 - 17:30
The national public service organization discriminates against people with mental health issues for no good reason.

For many soon to be college-graduates, the unfolding of the final year of college holds literally endless opportunities. My dream was to serve with AmeriCorps National Civilian Community Corps, the national full-time public service program.

I knew purposefully dedicating one year — a small portion of my life — to serving my country was my best choice. I couldn’t have been happier when I was offered a position to serve as support team leader, based in the Mississippi office. I thought, this is what I’ve worked so hard for, and now I can work hard for others.

But then it was suddenly ripped away from me through no fault of my own.

When AmeriCorps NCCC offers you an opportunity for any position, they require you to fill out a very detailed medical form that requests every little bit of your medical history, including whether you have ever obtained therapy. I listed my prescription and vitamins, the fact that I had been treated for strep throat, and that, yes, I had received counseling for anxiety.

During my final year of college, I experienced what too many college students have, especially women. I was sexually groped by a co-worker, and in the weeks following the assault, I experienced anxiety around men I did not know. As a social work student and having a background working with sexual assault survivors, I knew receiving counseling would be in my best interest.

Like a “check-up,” I decided to seek professional advice to ensure that my anxiety was normal and that the coping skills I was using were more than adequate. I participated in three sessions of counseling, and I successfully continued to work at a sexual violence shelter, maintained a 4.0 GPA, and graduated on time without issue.

Standing in a Walmart produce aisle in May, I received a phone call that would snatch away my AmeriCorps NCCC opportunity only weeks before it was set to begin. I was told that I would not be permitted to serve based on the anxiety I reported. The medical review board’s decision was made so quickly that I could only plead my case for why I was still suitable for service over the phone to an AmeriCorps counselor. But it seemed like it was too late — their minds were made up. I later got a letter from AmeriCorps NCCC informing me that I was disqualified from service.

I felt devastated, attacked, and grossly misunderstood. To be told you are incapable of service due to acts that were committed outside of your control is horrendous. This massive regret came over me, and I wished I had never reported the incident, never completed counseling, never disclosed the anxiety.

I later learned that AmeriCorps NCCC’s health screening process is deeply unfair to everyone with any sort of mental health condition. The medical history questionnaire is so broad that it will flag far too many people who are able to serve. And AmeriCorps NCCC uses guidelines that discriminate against people with mental health issues. In my case, AmeriCorps’ guidelines said that an individual who received counseling in the last six months for anxiety should be deferred from service.

The way AmeriCorps NCCC treated me was worse than the sexual assault. With the help of the ACLU, I filed a complaint challenging AmeriCorps’ health screening process. I want AmeriCorps NCCC to change how it completes health screenings for the benefit of anyone interested in serving. Every single person shunned away from AmeriCorps service due to discriminatory health screenings results in the loss of thousands of priceless service hours for the American people, a weakened feeling of community and patriotism, and, on a personal level, devastated dreams.

The AmeriCorps Pledge states, “I will bring Americans together to strengthen our communities. Faced with apathy, I will take action. Faced with conflict, I will seek common ground. Faced with adversity, I will persevere.” I ask AmeriCorps NCCC to take action, change its discriminatory policies, and seek common ground so that qualified applicants are not rejected based on health conditions or disability.

The ACLU is interested in hearing from other AmeriCorps NCCC applicants who believe they were treated unfairly in the health screening process. Please share your story with us.

We Don’t Think an 8-Year-Old Boy Should Be Put in Handcuffs. A Judge Finally Agreed With Us.

American Civil Liberties Union - Thu, 10/12/2017 - 15:00
A federal judge just put a small crack in the school to prison pipeline.

In the fall of 2014, “SR,” a little 8-year-old boy in Kenton County, Kentucky, had a terrible day at school. The assistant principal put him in a restraint hold after he yelled at kids who were mean to him. And then she confined him to her office, where he kicked and screamed to be let out because he needed to go to the bathroom.

But then it got worse.

The assistant principal called the local deputy sheriff who served as a school resource officer (SRO). By the time Deputy Sheriff Kevin Sumner arrived, SR had calmed down. He had spoken to his mother, and the assistant principal had told him he could go to the bathroom when the deputy arrived. When they returned from the bathroom, the deputy sheriff said SR — all 54 pounds of him — swung an elbow at him. The deputy sheriff’s response was to clap him in handcuffs.

Really. We could barely believe it either, but the assistant principal video-taped it. So the Disability Rights Program of the National ACLU filed suit, along with the ACLU of Kentucky, the Children’s Law Center of Cincinnati, and the law firm of Dinsmore Shohl.

Months of discovery showed that Deputy Sheriff Sumner had handcuffed another young plaintiff twice and had also handcuffed up to 20 other children. Nonetheless, Sheriff Charles Korzenborn of Kenton County declared, “I steadfastly stand behind Deputy Sumner.” The sheriff also said, on the record, that handcuffing children behind their backs was an acceptable practice for his deputies.

Law enforcement officers treat young students as if they were criminals instead of kids.

Yesterday, the court disagreed. Federal District Court Judge William O. Bertelsman found that the handcuffing of these two children was “an unconstitutional seizure and excessive force.” Judge Bertelsman also found, as a matter of law, that Kenton County is liable for the handcuffings.

Across the country, young children see more and more law enforcement in their schools. While the ostensible purpose of these SROs is to keep students safe, the actual effect has too often been the opposite. Law enforcement officers treat young students as if they were criminals instead of kids. Children are thrown to the floor for refusing a command, arrested for talking back, and handcuffed for temper tantrums. Statistics show that law enforcement are more likely to take these wildly inappropriate reactions if the child is a student of color with a disability.

These interactions traumatize students, make them hate school, and send them down the school to prison pipeline. And as we have seen too often, most courts are reluctant to interfere with law enforcement, even in cases where students are the victims of overly aggressive police tactics.

So Judge Bertelsman’s decision is a significant win. Not only did the court find that the sheriff’s office was wrong, the judge reached this decision at summary judgment, issuing a decision on these issues before the case even went to trial.

At this stage, the court has to give the sheriff the full benefit of the doubt — assuming that everything happened exactly as the deputy sheriff claimed. But even with this wide deference, the judge held the sheriff’s office liable and their actions unconstitutional. As Judge Bertelsman noted, even if SR swung an elbow at Officer Sumner, this “can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.”

We couldn’t agree more.

In this decision, Judge Bertelsman has made schools safer for many children — and put a small crack in the school to prison pipeline.

We’re Suing the Government for Violating the Rights of Passengers on Delta Airlines 1583 in Police-State Fashion

American Civil Liberties Union - Thu, 10/12/2017 - 11:30
CBP agents detained every passenger on a domestic flight and forced them to show their papers before deplaning.

On February 22, 2017, Delta Airlines Flight 1583 departed San Francisco and headed for John F. Kennedy Airport in New York. As the plane was landing, passengers heard a strange announcement.

Speaking over the intercom, a flight attendant announced that everyone would have to show their documents in order to get off the plane. After passengers expressed their consternation, the flight attendant repeated her announcement, stating that officers would be meeting the plane and every passenger would have to show government-issued ID to deplane.

The announcement immediately unsettled Kelley Amadei, who was traveling with her wife and 7-year-old son. Kelley flies frequently for work, both internationally and domestically, and she knew this did not feel right. Around her, other passengers wondered aloud how the government had the authority to prevent them from leaving the plane and requiring them to show identification again.

The answer is that the government does not have this authority.

The Fourth Amendment to the U.S. Constitution requires government agents to have individualized suspicion to conduct even a brief investigatory stop. Despite this, two Customs and Border Protection agents met Flight 1583 and stood immediately outside the aircraft door, blocking the exit into the jetway. The officers wore uniforms emblazoned with the words, “POLICE/CUSTOMS AND BORDER PROTECTION,” and carried guns visible in their holsters.

Passengers were forced to queue up inside the plane, and the line moved slowly. One plaintiff, Professor Corey Fields, was seated toward the back of the plane and recalls that it took an exceedingly long time to deplane — so long that he grew increasingly worried he would miss his connecting flight and the meeting he was to attend the next day.

When Kelley Amadei and her son finally reached the exit, Kelley handed her identification to the CBP agent. He closely examined it, front and back, and then looked pointedly back and forth between her and her 7-year-old son, who has noticeably darker skin than Kelley. The CBP agent said nothing, but his cold gaze added to the already coercive atmosphere. Frightened and angry, Kelley broke the silence and said, “He’s 7 years old. He doesn’t carry an ID.”

With that, the officers waved her on. Her son was visibly upset and asked Kelley whether their family was in trouble and had done something wrong. As Kelley reassured him that they were not in trouble, she was in fact shaken. She was so upset by what the agents had done that she decided to go back to the gate to get some answers. However, when she asked the officers for the reason for the search, they dismissively ordered her off with “don’t worry about it.”

Outraged by how CBP had detained them, Kelley and several other passengers snapped photos of the agents from the jetway and posted them on social media to sound the alarm. In response to press inquiries, CBP characterized the agents’ actions as “routine” and consistent with agency policy.

That blithe insistence on the power to detain was a rallying call for Kelley, her eight fellow plaintiffs, and for attorneys at the ACLU and Covington & Burling, LLP, who are taking legal action to stop CBP from seizing or searching domestic airline passengers deplaning without any individualized legal basis.

Our lawsuit charges CBP and ICE with violating the Fourth Amendment rights of the passengers of Delta 1538, and it asks the court to permanently block the government from conducting such seizures and searches pursuant to its asserted policy. Our clients are standing up for civil liberties and setting a precedent so that these totalitarian police tactics do not continue and leave us all vulnerable.

Think You Have a Constitutional Right to an Attorney? Not in Many South Carolina Courts

American Civil Liberties Union - Thu, 10/12/2017 - 11:00
Municipal courts in South Carolina are treating the right to counsel as a luxury the poor cannot afford.

Imagine getting arrested, charged with a crime, prosecuted, convicted, and hauled off to jail. Imagine that happening without ever being represented by a lawyer. Not in America, right? Wrong. This injustice happens with shocking regularity to people in South Carolina in the city of Beaufort and town of Bluffton.

Take the case of Tina Bairefoot, whose constitutional rights were trampled upon in Beaufort.

Ms. Bairefoot was arrested for shoplifting at Walmart and charged with a misdemeanor in Beaufort municipal court. She pleaded not guilty. Despite the fact that she was facing criminal charges and possible incarceration if convicted, Bairefoot was never even advised of her right to have a court-appointed lawyer if she could not afford to pay for one.

In fact, not only was she on her own to defend herself, but it was the police officer who arrested her who then acted as the prosecutor in court. After a “trial” that took a matter of minutes, Ms. Bairefoot was convicted and sentenced to 30 days in jail without counsel by her side.

Adding insult to her injustice, when she tried to advocate for herself, the municipal court judge interrupted her, called her defense “B.S.” He told her that “he didn’t care” about what she had to say, and wouldn’t let her speak. Then he tossed her in jail. During her time behind bars, Ms. Bairefoot suffered from mental anguish and emotional distress and was deprived of several necessary medications.

Not once on her journey from arrest to incarceration was Bairefoot provided a lawyer. Is this constitutional? Absolutely not.

Many years ago, the Supreme Court made clear that the Sixth Amendment prohibits jailing people upon conviction without affording them counsel. Yet in South Carolina the practice is still commonplace. As the ACLU documented in a 2016 report co-authored with the National Association of Criminal Defense Lawyers, “unconscionable and unacceptable practices that cause significant harm” are rampant in local courts in that state. In the Beaufort and Bluffton, thousands of poor people are cycled through their municipal courts every year. Some are condemned to jail or prison. None are given a lawyer.

The amount of money someone has should never be a determining factor in what kind of justice someone gets. But poor people are deprived of their Sixth Amendment rights in Beaufort and Bluffton simply because of these municipalities’ inexcusable refusal to contract with the public defender office to provide representation to indigent defendants in the municipal courts. And these local governments are far from alone.

Despite South Carolina enacting a budget proviso in 2015 requiring municipalities to provide lawyers to poor people in municipal courts, a majority of municipalities in South Carolina ignore this requirement — even though all charges in municipal court are criminal charges and most expose the defendants to possible incarceration.

This failure results in widespread constitutional violations. Worse still, in many of these courts, the judges are not lawyers. And sometimes those prosecuting cases are also not lawyers, but police officers.

People like Tina Bairefoot, who are given unlawful jail sentences, can suffer all the harms connected to being incarcerated, including lost employment, separation from family, and worsening of medical conditions.

Of course, those who can afford a lawyer have a better shot at getting justice. They can choose to have a skilled legal professional by their side throughout the entire criminal process to challenge the charges, put the state’s evidence to the test, make persuasive legal arguments to the judge, and negotiate appropriate resolutions.

In South Carolina’s municipal courts, if you have money, the Constitution applies. If you don’t, it doesn’t. That’s why the ACLU, the ACLU of South Carolina, and Nelson Mullins Riley & Scarborough LLP have filed a lawsuit against Beaufort and Bluffton on behalf of Tina Bairefoot and people like her to send a message to municipal courts across the state: The right to counsel is not a luxury for those with means, but a protection guaranteed to all.

Kansas Won’t Let Me Train Math Teachers Because I Boycott Israel

American Civil Liberties Union - Thu, 10/12/2017 - 10:15
The state should not be telling people what causes they can or can’t support.

I’m a member of the Mennonite Church. I’ve also been a math teacher for almost a decade. Because of my political views, the state of Kansas has decided that I can’t help it train other math teachers.

I was chosen last spring to participate in a program that trains public school math teachers all over Kansas. After completing a two-day preparation course in May, I was ready to take on the role.

But  in June, Kansas passed a law requiring any individual or company seeking a contract with the state to certify that they are not engaged in a boycott of Israel. That law affects me personally. As a member of the Mennonite Church USA, and a person concerned with the human rights of all people — and specifically the ongoing violations of Palestinians’ human rights in Israel and Palestine — I choose to boycott consumer goods made by Israeli and international companies that profit from the violation of Palestinians’ rights.

I first became concerned with the situation in Israel and Palestine when I visited the region in the early 2000s, while serving a three-year term with the Mennonite Central Committee in Egypt. That interest intensified last fall, when our church hosted a weekly presentation series led by a member of our congregation. He told us about his trip to Israel and Palestine at the invitation of a group of Palestinian Christians. And he showed us video presentations by nongovernmental organizations, children's rights advocates, and former Israeli soldiers about the Israeli government’s treatment of Palestinians.

At the end of eight sessions, we talked about how boycotts, divestments, and sanctions could help bring about an end to the Israeli government’s occupation, in the same way those tactics helped dismantle apartheid in South Africa. I left the meeting with the conviction that I needed to do my part to support the Palestinian struggle for equality, even if it just meant not buying Sabra hummus or a SodaStream machine.

Then, on July 6, 2017, the Mennonite Church USA overwhelmingly passed a resolution calling for peace in Israel and Palestine. It called on Mennonites “to take active and specific steps to redress” the “injustice and violence” that both Palestinians and Jews have experienced. And it urged us “to avoid the purchase of products associated with acts of violence or policies of military occupation, including items produced in the settlements.” This resolution reaffirmed my decision to participate in the boycott.

Just a few days later, I got an email from an official at the Kansas State Department of Education. She said that, in order to participate in the state’s math training program, I would need to sign a certification stating that I don’t boycott Israel. Specifically, I would have to sign below the following statement:

“As an Individual or Contractor entering into a contract with the State of Kansas, it is hereby certified that the Individual or Company listed below is not currently engaged in a boycott of Israel.”

I was stunned. It seems preposterous that my decision to participate in a political boycott should have any effect on my ability to work for the state of Kansas.

After waiting for several weeks and considering my options, I emailed back and told the official I could not sign the certificate as a matter of conscience.  Could I still participate in the state’s training program? She responded that, unfortunately, I could not. I needed to sign the certification in order to get paid.

I am challenging this law because I believe that the First Amendment protects my right, and the right of all Americans, to make consumer spending decisions based on their political beliefs. You don’t need to share my beliefs or agree with my decisions to understand that this law violates my free speech rights. The state should not be telling people what causes they can or can’t support.

I am also sad that I cannot be a math trainer for the state of Kansas because of my political views about human rights across the globe. The two seem so distant and unrelated. My activism on behalf of freedom for all Israelis and Palestinians shouldn’t affect my ability to train math teachers. I hope this law will be recognized as a constitutional violation.

Esther Koontz is a curriculum coach at Horace Mann Dual Language Magnet school in Wichita, Kansas, and a member of the Mennonite Church USA. The views expressed in this post are those of the author; the ACLU does not take a position on boycotts of Israel.

Our Fight to Stop Discriminatory Screening Practices at AmeriCorps

American Civil Liberties Union - Wed, 10/11/2017 - 15:45
The program's intrusive health screening forms and guidelines discriminate against people with disabilities.

Has your employer, school, or volunteer program ever required you to disclose all the medications you are taking – including birth control and antidepressants?  Have you been asked if you saw a counselor or if you visited a hospital in the last five years? 

Shockingly, AmeriCorps requires this information – and many more medical details – of all applicants to the National Civilian Community Corps (NCCC), the federal service program for young people ages 18 to 24.  Even worse, it rescinds offers it has given based on the information it receives, even when the applicant is qualified to serve.

This is what happened to Susie Balcom, who applied to join AmeriCorps NCCC during her last year of college.  With a 4.0 GPA, two successful terms with the state AmeriCorps programand a demonstrated commitment to public service, she received multiple offers from AmeriCorps in April 2017.  She accepted a one-year position to serve as a Support Team Leader, which would require her to coordinate logistics and trainings for corps members from the AmeriCorps office in Mississippi, starting in June.  Thrilled to be able to serve her country, she made plans to move and postponed the start of her graduate studies.   

But in May, Susie was contacted by an AmeriCorps counselor about the health information form she was required to submit.  On the form, along with listing medical visits for strep throat and dehydration, Susie disclosed that she had gone for three sessions of counseling for anxiety.  The counselor asked her why she had experienced anxiety.  Susie explained that she had been sexually groped by a co-worker several months earlier and that she had sought out counseling to ensure her own well-being.  Susie continued to thrive in her academic and professional life following the incident.  Two weeks later, AmeriCorps notified Susie that she was disqualified from service.

We investigated AmeriCorps’s health screening process and learned that thousands of applicants every year are required to fill out the intrusive and unnecessary health information form.  AmeriCorps also uses guidelines that discriminate against people with disabilities, including people it regards as having disabilities.  For example, the guidelines state that applicants must be deferred from service if they began therapy for anxiety within the past six months, and this was used against Susie. But people with mental health issues should not be punished when they seek therapy, because they often are fully capable of service.   

Other institutions that engaged in similarly broad health screenings have been found liable for discrimination.  For example, a federal court concluded that the Peace Corps violated the Rehabilitation Act’s prohibition on disability discrimination when it used one-size-fits-all mental health screening guidelines, instead of examining individual circumstances to determine whether an applicant is qualified to serve.  

Courts also have ruled that state bar associations, which grant licenses to attorneys, violate civil rights law when they asked questions like, “Have you within the past five years been treated or counseled for a mental, emotional, or nervous disorder?”  These questions impose burdens on applicants with disabilities that people without disabilities do not endure.  Health inquiries should instead be narrowly tailored to find out whether applicants have an existing condition that would actually interfere with their current ability to participate in the program.

Today, we filed a complaint on behalf of Susie with the Corporation for National and Community Service, the federal agency that operates AmeriCorps NCCC.  We are calling on the agency to recognize that its health screening process is discriminatory and must be changed.  In the meantime, we want to hear from other AmeriCorps applicants who believe they were treated unfairly in the health screening process.  Please share your story with us. 

AmeriCorps does important work around the country. But to truly empower communities, AmeriCorps must give everyone a fair chance to serve.

Want to Roll Back Trump's Tough on Crime Playbook? Then We Must Elect Candidates Committed to Criminal Justice Reform.

American Civil Liberties Union - Wed, 10/11/2017 - 12:45
Nixon's tough on crime political playbook has resulted in a mass incarceration crisis.

This piece originally appeared at In Justice Today.

It’s been almost 50 years since President Richard Nixon played the law-and-order card to help him win the presidency. Decades later Donald Trump has adopted the same playbook, telling his own version of the forgotten American who is at the mercy of a crime wave. It didn’t matter that facts didn’t support candidate Trump’s arguments. Politically speaking, it worked.

Nixon’s tough on crime political playbook, used by generations of American politicians after him, including Bill Clinton during the introduction and passage of the 1994 crime bill, has resulted in a mass incarceration crisis. On any given day, 2.3 million people are locked up, more than in any other nation. This mass incarceration crisis has devastated families and communities, particularly low-income communities of color.

Yet in the same way that politics got us into this mess, politics have to get us out of it.

I spend a lot of time thinking about how we end mass incarceration in the United States. On some days, it feels like we’re winning. Not a month goes by when we’re not getting some form of criminal justice reform legislation passed in the states or litigation won in the courthouses, whether on bail reform, drug or property law reform, or reforms to mandatory minimum laws.

Yet on many other days, it feels like we’re losing, badly. Incarceration has only decreased 5 percent since 2009. We now spend roughly $80 billion per year on incarceration alone. And the poisonous rhetoric of law-and-order still spews out towards us on a daily basis. In many places, including in the White House today, when a politician needs a bump, he still relies on the law-and-order narrative borne out of the Nixon years.

But what if it didn’t have to be like this? What if criminal justice reform advocates on the right and left, the broader civil rights community, and more politicians jumped into electoral fights with the same vigor as the law-and-order crowd but not being scared to talk about compassion, rehabilitation, and reinvestment as a replacement of law-and-order?

There are glimmers of hope that this strategy can work, and it is coming from surprising places. For decades it had been assumed that the only way to win an election for one of America’s approximately 3,000 district attorney seats is by being the toughest, least compassionate candidate in the race. Yet in several cities and counties, this is beginning to change.

Philadelphia has most recently exemplified this phenomenon. The city has a long history of electing politicians who ran on a law-and-order platform. Former Mayor and Police Commissioner Frank Rizzo took pride in being a “tough cop.” Lynne Abraham, elected district attorney of Philadelphia from 1991 to 2010, was called America’s “Deadliest D.A.” by the New York Times because of her zeal for pursuing the death penalty. For reformers living in that era, it would have been impossible to imagine a politician who could win on a criminal justice reform agenda, let alone a politician running to be the city’s top prosecutor.

Yet today, the leading candidate for Philadelphia district attorney is a civil rights lawyer who has never been a prosecutor, and who won the Democratic primary running on a platform centered on criminal justice reform and ending mass incarceration. With the overwhelming advantage for Democrats in the general election, it is fair to assume that Larry Krasner will be Philadelphia’s next district attorney.

We can’t legislate or litigate our way out of mass incarceration.

The turn of events didn’t happen by accident. It represented a strategy deployed by local and national criminal justice and civil rights organizations (including, to name a few, the Philadelphia Coalition for a Just District Attorney, Color of Change, Safety and Justice PAC, and the Working Families Party). Support poured in to engage in aggressive voter education and turnout efforts, elevating the importance of alternatives to incarceration, bail reform, and rejection of policing practices that criminalized communities.

The ACLU alone organized our 11,438 members who are registered to vote in Philadelphia, knocking on more than 26,000 doors and hiring and training 51 canvassers who are formerly incarcerated to approach our members, in a non-partisan way, about why it was important to vote for a district attorney committed to ending mass incarceration. Our preliminary analysis reveals that our members, even ones who have not voted in recent elections, responded to our outreach by casting a ballot in this election. And the strategy succeeded by elevating the issue of ending mass incarceration to the forefront of the election.

Philadelphia is not alone in this example, as reform candidates have begun winning in cities and counties across the nation. But while prosecutors are the most powerful politicians in the criminal justice system, there are many additional actors who need to be held accountable.

Similar strategies and resources must now be deployed in elections up and down the ticket. In fact, state and local races are usually where it matters most in the fight to end mass incarceration. Ninety-percent of people who are incarcerated in the United States are under state and local jurisdiction. A state governor or assembly member matter a lot more when it comes to criminal justice reform than a congress member. It may be more interesting to talk about United States senators, but a state senator has much more power in deciding who and how many people are locked up in prisons and jails.

In the past few weeks alone, the ACLU has launched voter education efforts related to prosecutorial races in California, Oregon, Massachusetts and New York. In 2018, we will double down on this strategy and deploy it all over the nation, expanding it beyond prosecutors to include politicians of all types who decide the fate of the millions of people incarcerated in our nation today.

For the politics of mass incarceration to genuinely change, electoral strategies must use all of the tactics in the political handbook that candidates for office have perfected. This includes strategic get-out-the-vote efforts, phone banking, mailers to voters, and more. It must also include pressuring the party machines on both the left and right to elevate the importance of criminal justice reform. There has been a lot of talk over the years about how criminal justice reform is one of the few remaining bipartisan issues. Well now it’s time to test that theory in political races on the right and on the left.

We’ve seen it happen before in the United States; culture and political incentives change. Yet it never happens accidentally, but rather through the concerted efforts of organizers and activists and voters demanding a different way. The time has come to retake what it means to keep communities safe and to change the incentives for politicians who shape our nation’s criminal justice system.

We can’t legislate or litigate our way out of mass incarceration. But we can and must change the culture and politics that have led to mass incarceration in the first place.

The Right to Boycott Is Under Threat

American Civil Liberties Union - Wed, 10/11/2017 - 10:30
The First Amendment squarely protects the right to boycott.

This article was originally published at Haaretz.

The First Amendment squarely protects the right to boycott. Lately, though, a legislative assault on that right has been spreading through the United States –  designed to stamp out constitutionally protected boycotts of Israel.

In a landmark decision from 1982, the Supreme Court ruled that an NAACP boycott of white-owned businesses in Mississippi, to protest segregation and racial injustice, was a protected form of free association and free expression. As the court recognized, political boycotts empower individuals to collectively express their dissatisfaction with the status quo and advocate for political, social, and economic change. These are precisely the freedoms the Constitution is meant to protect.

Yet over the past several years, state and federal legislatures have considered dozens of bills, and in some cases passed laws, in direct violation of this important ruling. These bills and laws vary in numerous respects, but they share a common goal of scaring people away people from participating in boycotts meant to protest Israeli government policies, including what are known as Boycott, Divestment, and Sanctions (BDS) campaigns.

Today, the ACLU filed a lawsuit challenging one of those laws — a Kansas statute requiring state contractors to sign a statement certifying that they do not boycott Israel, including boycotts of companies profiting off settlements in the occupied Palestinian territories. People have very strong feelings on all sides of this issue. The ACLU takes no position for or against campaigns to boycott Israel or any other foreign country, but we have long defended the right to participate in political boycotts. We must do so again.

We are representing a veteran math teacher and trainer from Kansas who was told she would need to sign the certification statement in order to participate in a state program training other math teachers. Our client is a member of the Mennonite Church USA. In response to calls for boycott by the church and members of her congregation, she has decided not to buy consumer goods and services offered by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories. Our client is boycotting to protest the Israeli government’s treatment of Palestinians and to pressure the government to change its policies.

Earlier this year, our client was selected to participate as a contractor in a statewide training program run by the Kansas Department of Education. She was excited to use her skills to help train math teachers throughout the state, but when she was presented with a form requiring her to certify that she “is not currently engaged in a boycott of Israel,” she told the state that she could not sign the form in good conscience. As a result, the state refuses to let her participate in the program.

Kansas’s law, and others like it, violates the Constitution. The First Amendment prohibits the government from suppressing one side of a public debate. That means it cannot impose ideological litmus tests or loyalty oaths as a condition on hiring or contracting. This principle was famously tested in the McCarthy era, when many state laws required government employees to declare they were not members of the Communist Party or other “subversive groups” in order to keep their jobs. The ACLU successfully challenged many of those laws on constitutional grounds, and anti-Communist loyalty tests have been mostly relegated to the dustbin of history. The same rule applies when the government asks someone to certify that they are not engaged in a boycott of Israel.

Kansas should not be dictating political orthodoxy for its contractors. Although the government may impose reasonable restrictions on employee or contractor speech when it relates to their job duties or causes disruption in the workplace, people do not lose the right to participate in politics or speak out on issues of public concern just because they get paid by the state. By requiring all state contractors to certify that they are not engaged in a boycott of Israel, Kansas’s law unconstitutionally disqualifies people from working for the state based on protected expression and association that has nothing to do with their jobs.

From the Boston Tea Party to the Montgomery bus boycott to the campaign to divest from businesses operating in apartheid South Africa, political boycotts have been a proud part of this country’s constitutional tradition. That’s why the ACLU has opposed anti-boycott bills in state legislatures for the past several years. That’s why we’ve come out against the Israel Anti-Boycott Act in Congress. And that’s why we’re suing to challenge Kansas’s unconstitutional anti-boycott law.

Justice for José Antonio, a 16-Year-Old Boy Killed By U.S. Border Patrol

American Civil Liberties Union - Tue, 10/10/2017 - 13:15
There is no Constitution-free zone where border patrol agents can kill unarmed civilians, no matter their country.

If a U.S. Border Patrol agent uses excessive and unnecessary force to kill a noncitizen in a foreign country, are there consequences under the U.S. Constitution? The answer might seem to be obviously “yes” to most people. Unfortunately, our own government believes the answer is “no.”

On October 10, 2012, José Antonio Elena Rodriguez, a 16-year old boy, was shot and killed on Calle Internacional, a street in his hometown of Nogales, Sonora, Mexico by a U.S. Border Patrol Agent. He was four blocks away from his home.

Calle Internacional runs parallel to a border fence, which separates the United States from Mexico, and is between 20-25 feet in height. The steel fence runs along the top of a 25-foot cliff. That evening, according to Customs and Border Patrol, agents were in pursuit of two suspected smugglers who were attempting to scale the fence back into Mexico from the United States when rocks were thrown from the Mexican side of the border.

In response, Agent Lonnie Swartz aimed his gun through the fence and opened fire anywhere from 14 to 30 times, according to reports.

An autopsy revealed that José Antonio was shot approximately 10 times, and virtually all of the bullets entered his body from behind. He was an unarmed adolescent who liked “cloudy days and chocolate cookies,” as remembered by his mother, Araceli Rodriguez. Privacy statement. This embed will serve content from

Today marks five years since the shooting, and there’s still been no justice for the Rodriguez family. José Antonio should be 21 years old. Instead, his mother and siblings regularly walk by his shrine on Calle Internacional, where bullet holes are still pockmarked into the wall. The Rodriguez family, still reeling with loss, remains hopeful that the American judicial system will deliver justice for José Antonio.

In 2014, the American Civil Liberties Union filed a federal lawsuit on behalf of Araceli to vindicate her son’s constitutional rights. At a basic human level, our case challenges the notion that a U.S. border agent can stick a gun through a hole in a fence and shoot at Mexican kids, 20 feet away, with no constitutional consequences. And legally it raises significant questions about whether the U.S. Constitution can be applied extraterritorially. CBP, on behalf of Agent Swartz, asked for case to be dismissed, arguing that José Antonio was not deprived of constitutional rights because as a Mexican national killed in Mexico, he doesn’t have any. In July 2015, a U.S. District Court of Arizona denied the request to dismiss the case, finding that Jose Antonio “was entitled to protection pursuant to the Fourth Amendment.”

Ultimately, Agent Swartz is an American citizen who is subject to U.S. laws. He opened fire, while in uniform, on U.S. soil, using unnecessary and excessive force in violation of the Fourth and Fifth Amendments despite the fact that “for over thirty years, law enforcement officers have been well-aware that it is unlawful … to use deadly force against an unarmed suspect,” as District Court Judge Collins noted.

“At its heart, this is a case alleging excessive deadly force by a U.S. Border Patrol agent standing on American soil brought before a United States Federal District Court tasked with upholding the United States Constitution,” the judgeconcluded. CBP has since appealed the ruling, and the case is now before the Ninth Circuit Court of Appeals. If the Ninth Circuit were to rule in favor of the Rodriguez family, it would set a critical precedent that Border Patrol agents cannot kill without constitutional repercussions just because the victim was a national in another country.

In addition in 2015, a federal grand jury indicted Agent Swartz for second-degree murder, the first time in U.S. history that a Border Patrol agent was charged with murder in a cross-border shooting. The trial, which has been pushed back on more than one occasion, is currently set for March.

José Antonio’s death was a tragic event, but not an isolated one. Since 2010, at least 50 people have died as the result of an encounter with U.S. border agents. A 2014 American Immigration Council report examined 809 complaints of alleged abuse lodged against Border Patrol agents and concluded that CBP officials "rarely take action against the alleged perpetrators of abuse." On the occasions when CBP did formally respond to a complaint, 97 percent of the time the response was "No Action Taken."

On January 25, President Trump signed an executive order on immigration enforcement which called for the hiring of 5,000 more Border Patrol agents and 10,000 new immigration officers. CBP is already the nation’s largest federal law enforcement agency and only stands to gain more authority given President Trump’s significant overhaul of immigration enforcement and deportation priorities.

Whether or not we build a wall, there is no Constitution-free zone where border patrol agents can kill civilians. The Border Patrol’s age of impunity must end.

I Lost My DACA Status for No Reason. Now I’m Suing to Get It Back.

American Civil Liberties Union - Fri, 10/06/2017 - 10:00
I joined a class-action lawsuit to restore my DACA status and to make sure others don't go through the same experience.

One night in February, when I had been working as a driver for Uber and Lyft almost a year, I got a call from a friend. He asked me to drive three hours from Los Angeles to a place near San Diego to pick up his uncle and cousin and drive them back to L.A., and said he would pay the going rate. I had no idea that picking up that fare would change my life.

It turned out his relatives had just entered the country illegally — but I didn’t know that. I never even met them. At the spot where I was to pick them up, immigration agents arrested me. Even though I was never charged with a crime and a judge believed that I did not smuggle anyone, a few days later I got a notice that my Deferred Action for Childhood Arrivals was terminated. So I’m fighting back by joining a class-action lawsuit by the ACLU on behalf of young people whose DACA has been unjustly revoked by the Trump administration.

My family had moved from Durango, Mexico, to the United States when I was one. My three younger sisters were born in the United States, and are citizens, and my parents now have green cards. I’m the only one in my family who is undocumented, but I’ve had DACA status since I graduated from high school in 2012. DACA has allowed me to work to pay half my parents’ rent each month and contribute to my sisters’ expenses. I’ve also been a primary caregiver for my 17-year-old sister Lupe, who has disabilities including autism, Down’s syndrome, and diabetes, and needs insulin shots every few hours.

That February night, I met my friend at 9 pm. He told me to take another relative of his – a young cousin – along on the drive. When we reached the destination, my passenger jumped out of the car. In the moonlight, we saw a person standing in the dark. I thought that was strange, because I was supposed to be picking up two people, not one.

The man turned around, and I realized it was a Border Patrol agent. He said, “What are you doing here?” He called for backup, and another guy appeared.

I showed them my driver’s license, told them I had DACA, and showed my work permit. I told them I worked as a driver and showed my GPS record saying where I’d picked up my passenger. They arrested us both. They took me to a holding cell nearby and I was not allowed to call my mom to tell her where I was.

I found out the agents had arrested me because they thought I was a smuggler, because the two people I was supposed to pick up had apparently just crossed the border illegally. I had no idea about any of this. But the agents said I was getting deported.

I kept thinking, I didn’t do anything wrong. I didn’t smuggle anyone. I never even saw the people I’m accused of smuggling!

I was held in a room with seven or eight other men, with no beds and just a little bench. The next day, I was transferred to a detention center in Chula Vista, California, where I was finally allowed to call my family. I told my mom what had happened to me, and I talked to my sister Lupe, too. She was crying. “I love you,” I said, as we were hanging up.

“Bye, I love you,” she said — for the first time ever. Usually she doesn’t articulate her emotions like that. I started crying too. The thought of getting deported and never seeing her again was breaking my heart.

After a week, several of us, chained from our hands to our hips to our feet, were loaded onto a bus and driven to a detention facility in San Luis, Arizona. A few days later, they chained us up again to go to the Phoenix airport, where we were flown to Georgia. Twenty days after my arrest, I got a bond hearing before an immigration judge in Folkston, Georgia. The judge found that I was not involved in human smuggling, and ordered me released on bond.

A few days later, I was home with my family. Days after that, I got notice that my DACA was terminated. This means that I lost my jobs. I can’t give money to my parents for rent, Lupe’s medical needs, and my other sisters’ school supplies. And I’m afraid I could be deported.

My girlfriend and I are expecting our first child, a boy, on Christmas Day. I want to be here to raise him. I grew up taking care of my sister Lupe. I want to keep holding her hand when she’s walking down the street. I know L.A. like the back of my hand — the lookout spot on Mulholland Drive, the beach in Malibu, the best Korean barbeque — and I want to continue the life I’ve lived here since I was a baby. I don’t want an unfounded accusation to take everything I love away from me. I joined the lawsuit to restore my DACA status and to make sure others don’t go through the same experience.

What happened to me shows me that we need a bigger solution. Please fight for legislation to create a path to permanent status for people like me. We all need to fight for the country we want to live in.

If you or someone you know have had DACA unfairly revoked, please contact the ACLU at

We’re Suing the Trump Administration for Taking DACA Away From People Who’ve Followed the Rules

American Civil Liberties Union - Thu, 10/05/2017 - 15:00
The ACLU just filed a lawsuit against the arbitrary termination of people’s DACA protections.

In April, President Trump had a message for the 800,000 young undocumented immigrants who were given permission to live in the U.S. under President Obama’s Deferred Action for Childhood Arrivals program: “The dreamers,” he said, “should rest easy.”

We now know that was a lie. In September, Trump announced he was ending the DACA program in six months, plunging nearly a million young immigrants’ lives into chaos. But Trump’s assault on DACA recipients began much earlier than previously known.

During his administration, federal immigration authorities have illegally stripped DACA protections from DACA recipients who have only been accused of a crime or found guilty of a minor misdemeanor that doesn’t affect their DACA status. Their protections have been taken away without any notice, any explanation, or any opportunity to respond. They now face deportation back to their parents’ home countries, even though America is the only true home they’ve ever known.

To stop the government’s abuses, we filed a class action lawsuit today on behalf of DACA recipients and the Inland Empire – Immigrant Youth Collective, a grassroots organization led by immigrant youth in Southern California. Our lawsuit seeks to hold the administration to the promises it made and ensure that DACA provides protection from deportation for however long the program exists.

The story of one of our lead plaintiffs, Jesús Alonso Arreola Robles , shows what’s at stake.

In February, Jesús  was wrongly arrested by a Customs and Border Protection agent for smuggling immigrants into the country and had his car and cellphone confiscated as well. After spending three weeks in immigration detention, Jesús finally went before an immigration judge who found that he wasn’t involved in smuggling and released him on bond.

Jesús thought his nightmare was over, but it was only beginning. A few days later, the government issued a notice that his DACA had been terminated without any explanation. Without a work permit, Jesús couldn’t make a living, and CBP has refused to return his car and phone. Now he faces the possibility of deportation to Mexico — a country he left when he was one year old.

What happened to Jesús , and many other DACA recipients like him, is unlawful. Under the DACA program, the government must give prior notice to young immigrants of their termination from the program and allow them to contest it. Instead, the government is revoking DACA status without due process, based on unsubstantiated suspicions of criminal activity or minor run-ins with the law, such as traffic offenses, even though these people have not violated the terms of the program and continue to be eligible for it.

No one should lose their ability to live and work in the United States after being merely accused of wrongdoing. Nor should they be stripped of a benefit as important as DACA without basic due process protections. People like Jesús  — who met all the requirements for DACA, came forward courageously and provided their information to the government, paid a fee, and planned their lives in reliance on the program — deserve DACA’s protections for as long as they continue.

But the reality is that DACA has never been enough. The Trump administration’s arbitrary decision to end the program makes it clear that we cannot leave these young people’s fate to whoever happens to be sitting in the White House.

Congress must act immediately to pass a clean Dream Act that would put people like Jesús on a path to citizenship and demand that the president sign it into law. Only the Dream Act will ensure that DACA recipients become full and permanent members of the country they know as their home. Only the Dream Act can protect these Americans from a president who tells them everything will be okay and then callously throws their lives into disarray.

If you or someone you know have had DACA unfairly revoked, please contact the ACLU at


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