By Gabriela Rivera, Staff Attorney, ACLU of San Diego & Imperial Counties & Mitra Ebadolahi, Border Litigation Staff Attorney, ACLU of San Diego & Imperial Counties
One night last summer, Patricia's mother, Marta, did not come home. She had been in poor mental health, but it was unlike her to simply disappear without a word. Marta Mendoza was born in Mexico but lived in the United States for decades, where she raised six U.S. citizen children. As Patricia and her sisters desperately searched their Los Angeles neighborhood for their mother, Marta was in Immigration and Customs Enforcement (ICE) custody being pressured to sign a "voluntary return," which would result in her immediate expulsion to Mexico without an immigration hearing. If Marta had been permitted to go before a judge, she could have won the right to remain here lawfully on account of her U.S. citizen children. Patricia didn't hear from her mother until Marta called from Mexico, scared and confused about what had happened to her.
Unfortunately, Marta's case is not an isolated incident. For years, countless families throughout Southern California have been torn apart by immigration enforcement agencies' coercive and deceptive "voluntary return" practices. As a matter of standard practice, ICE and Border Patrol have misinformed immigrants about the consequences of "voluntary return," including withholding the fact that "voluntary return" can trigger a ten year bar against returning to the United States. And in many cases, immigration officers used pressure and threats to force people to sign "voluntary return" orders.
In June 2013, the ACLU filed a class action lawsuit, Lopez-Venegas v. Johnson, on behalf of three Southern California immigrants' rights organizations, as well as eleven individuals, including Marta, who the government had expelled through unfair "voluntary returns." Each individual plaintiff has significant family ties in the United States and lacks any serious criminal history; thus, each would have had a strong claim to stay here lawfully had immigration officers not misinformed or pressured them to accept "voluntary return." Through the lawsuit, the individual plaintiffs sought to return to the United States and to receive a fair immigration hearing. The organizations sought systemic reforms to the "voluntary return" process throughout Southern California.
After more than a year of litigation, including intensive discovery and the depositions of key government officials, the government has agreed to significant reforms of the "voluntary return" system in Southern California. Under a settlement agreed to by the parties involved in the lawsuit, government officials must:
- Provide detailed information—in writing, orally, and through a 1-800 hotline—regarding the consequences of taking "voluntary return" to non-citizens asked to choose between "voluntary return" and a hearing before a judge;
- Cease "pre-checking" the box selecting "voluntary return" on the forms the agencies provide to non-citizens;
- Permit non-citizens to use a working phone, provide them with a list of legal service providers, and allow them two hours to reach someone before deciding whether to accept "voluntary return";
- Provide lawyers meaningful access to clients detained by Border Patrol or ICE;
- Cease pressuring or coercing individuals to accept "voluntary return";
- Allow ACLU attorneys to monitor compliance with the settlement agreement for three years.
As a result of the settlement agreement, on August 20th, Marta was allowed to return home to her daughters. In the coming months, she will finally have her day in immigration court. The settlement also includes provisions that, if approved by the court, would allow some of the hundreds of thousands of Mexican nationals who have been expelled from the United States pursuant to unlawful "voluntary returns" to reunite with their families here. We will monitor ICE and Border Patrol closely to ensure that these agencies never again trick or coerce vulnerable individuals into signing away their fundamental rights.
The lawsuit was filed by the ACLU Foundation of San Diego & Imperial Counties, the ACLU Foundation of Southern California, the ACLU Immigrants' Rights Project, and Cooley LLP.
A copy of the settlement can be downloaded from ACLU's website, here.
Pregnancy shouldn't be a firing offense, but time and time again, when pregnant women ask their employers for reasonable accommodations, they are shown the door.
Guadalupe, a pregnant fast food worker in Illinois, was denied necessary bathroom breaks and then fired. Then there was a pregnant mother of four from Centralia who worked at an assisted-living home for people with disabilities. She was fired because her employer refused to accommodate her temporary pregnancy-related lifting restrictions. Although she gave birth to a healthy baby, she has no job or financial stability.
No woman should have to choose between her health or family and her job security, and after today Illinois women won't have to.
This morning, Gov. Pat Quinn signed House Bill 8 into law, a milestone for women and families in Illinois. The law requires all employers to make the reasonable accommodations pregnant workers need, so they can preserve their health, their babies' health, and their jobs. It also continues a trend among state governments of extending workplace protections to pregnant women.
Workplace protection is nothing new. Many workers expect that when they have a condition, like a back injury, that temporarily affects their ability to work they will receive reasonable accommodations, such as temporary light duty. They expect that their bosses won't blame them or threaten to make them choose between their health and their jobs.
But for pregnant women, things have been different. Pregnant women are often denied common sense accommodations, such as a stool to sit on, a bottle of water, more frequent bathroom breaks, or temporary light duty. Far too often, they continue to work without necessary accommodations, forced to risk their health and pregnancies. Pregnancy – which marks a time of joy for many women – can become a source of great stress.
HB 8 recognizes pregnancy discrimination as gender discrimination and an attack on women's economic security and equality. It does not give special treatment to pregnant women; rather, it gives them equal treatment. Pregnant women will now receive the same accommodations that workers with temporary disabilities already get.
Because of this new law, women in the workplace no longer have to fear being punished – financially or physically – for being pregnant or for being women. With proper enforcement, Illinois' new law should ensure that the stories from woman like Guadalupe become a thing of the past in our state.
Thanks to the leadership of Representative Mary Flowers and Senator Toi Hutchinson and the support of Governor Quinn, today marks a victory for pregnant workers, for families, and for equality.
Learn more about House Bill 8.
If you have experienced pregnancy discrimination at work, click here.
Life is full of unexpected ups and downs. Sometimes our greatest joys are followed by our deepest sorrows and through the good times and the bad we turn to our loved ones to guide and comfort us.
But for same-sex couples, all too often the best and worst of life's moments become reminders of the second-class status that same-sex relationships are relegated to in many states.
For Midori Fujii and Kris Brittain, the magic of their marriage and wedding was followed by tragedy.
In 2008, after 11 years together, Midori and Kris were married in California. Sadly, shortly after they returned to their home in Indiana to continue their life together as spouses, Kris learned that she had ovarian cancer. Midori recounts the surgeries, hospitalizations and treatments that Kris had to undergo. Through it all, Midori stood by Kris's side, and they found comfort in each other and their shared home.
In Kris's final days, she was plagued with worry over what would happen to Midori after her death because they would be treated as legal strangers in their home state of Indiana. The trauma and sadness of being seen as "less-than" consumed her as she and Midori prepared to say goodbye. The couple did what they could to protect themselves, drafting wills and other legal documents that would allow Midori to make medical and financial decisions for Kris. But nothing can stand in for the recognition of a marriage.
When Kris died in October of 2011, Midori lost the love of her life. And in the most painful moments of grieving, she had to fight to be recognized as a part of Kris's life. At first, she was told that she could not authorize Kris's cremation because she was not a spouse. Then, like Edie Windsor who successfully challenged the constitutionality of the so-called Defense of Marriage Act (DOMA) in United States v. Windsor, Midori was saddled with a $300,000 tax bill on the property that she and Kris shared. This bill would have been $0 had they been an opposite-sex married couple.
For Midori, the devastation of Kris's loss was compounded by the added burden – both financial and symbolic – of having their joint home and life treated as the separate lives of two strangers.
The injustice of her experiences following Kris's death motivated Midori to stand up for the dignity she and Kris deserved. In March of this year, Midori, along with five couples and two children, filed suit challenging the constitutionality of Indiana's ban on the freedom to marry and the recognition of marriages from other jurisdictions. The district court struck down Indiana's ban in Midori's case and two others. The court proclaimed, "Today, the ‘injustice that [we] had not earlier known or understood' ends. … Because ‘[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'"
Today, the Seventh Circuit will hear oral argument in the three Indiana cases and in the ACLU's case, Wolf v. Walker, challenging Wisconsin's comparable ban. Ken Falk of the ACLU of Indiana and Camilla Taylor of Lambda Legal will be arguing for the plaintiffs in the Indiana cases while James Esseks, director of the ACLU's LGBT & AIDS Project, will be arguing for the plaintiffs in the Wisconsin one.
These cases will be the fourth set of cases to be heard by a federal court of appeals since the Supreme Court's decision in Windsor. There have now been 37 court decisions ruling in favor of marriage equality for same-sex couples. Two other courts of appeals, the 10th Circuit and the 4th Circuit, have already upheld district court decisions on the side of marriage. Argument was held in the 6th Circuit earlier this month. We are hopeful that the 7th Circuit will join the 4th and the 10th in upholding basic constitutional principles.
One or more of these cases will soon be before the Supreme Court and we are optimistic that the Supreme Court will also conclude that our Constitution simply does not tolerate the discriminatatory treatment that these marriage bans inflict. As one judge recently concluded in his opinion striking down Oregon's marriage amendment:
I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.
For Midori, the other plaintiff couples and same-sex couples and families throughout Indiana and Wisconsin, these cases truly are about love and devotion – the kind that gives life meaning and transcends death.
By Lee Rowland, Staff Attorney, ACLU Speech, Privacy & Technology Project
On April 29, 2014, Clayton Lockett was scheduled to die by lethal injection at the hands of the State of Oklahoma. Under a state law that requires public witnesses to all executions, 12 journalists gathered to observe his death.
They never saw it.
Before the scheduled execution, the reporters were ushered into a media room where a glass partition, covered by a "viewing blind," separated them from the execution chamber. When the blind opened, Clayton Lockett lay before them strapped to a gurney. He had already been in there for almost an hour, getting poked with needles until a member of the execution team – of unknown training and background – finally set an IV line in Lockett's femoral vein, near his groin. Preliminary findings suggest this femoral IV played a role in Lockett's prolonged and torturous execution. Since there were no witnesses, we have only the state's account of how properly these IV procedures were carried out.
But that's certainly not all that journalists were barred from seeing. Right after the blind was raised, the warden announced that the injection process was to begin: First came the drug intended to render Lockett unconscious. Seven minutes later, at 6:30 p.m., a doctor in the room checked Lockett for consciousness; he was awake. At 6:33 p.m., he checked again; the state's account claims the "offender was unconscious." So Oklahoma began the process of injecting Lockett with the second drug (a paralytic), and the third drug, intended to induce cardiac arrest.
But Lockett most certainly didn't remain unconscious while the execution team administered these drugs. Multiple media reports document that Lockett began to moan and writhe on the gurney in clear distress. And how did state officials respond? They lowered the blind. At 6:42 p.m., at the very most critical moment of the execution proceeding, the state opted for secrecy. Once there was unavoidable evidence – visual and audible – that the lethal injection was cruel and unusual, the media was locked out. The journalists were left staring at a blank blind, able to hear – but not verify – sounds of struggle and suffering coming from inside the death chamber.
They never saw anything else.
We now know that Lockett died at 7:06 p.m., long after the media's access was shut down by the state. As to what happened in those fateful 25 minutes, we have only the words of state officials, and those words themselves beg some questions. The governor said the state "lawfully carried out the sentence of death," while the head of the state Department of Corrections – who runs executions in the state – said the execution was formally called off 10 minutes before Lockett was "pronounced…deceased." Once the state is no longer "executing" someone, their duty shifts to one of providing medical care, but there are certainly no reports that they attempted to resuscitate Lockett. Assuming they didn't, the process was, and remained, an attempt to kill him. A process the press had every right to witness.
Because the press and public were literally and figuratively shut out of witnessing the process, we may never get a reliable answer. But here's where there's no question: For over 20 minutes, Clayton Lockett lay there dying in the dark. The assembled reporters were deprived of the right to observe a critical government proceeding, and by extension the public was denied the right to receive a full account of how Oklahoma administers capital punishment, warts and all.
Both death penalty supporters and opponents should be able to agree that the most extreme use of state power should absolutely not occur in the shadows. As the Supreme Court has said, "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."
As citizens, we can't complete that duty if the government only offers us selective information, editing out all the ugly parts. That why we brought a lawsuit today asking the court to stop the state of Oklahoma from using the execution shade like a Photoshop tool.
It isn't transparency when the government shines a light only on the things it wants us to see.
By Mitra Ebadolahi, Border Litigation Staff Attorney, ACLU of San Diego & Imperial Counties
Imagine this: Several months ago, a young mother realized that if she didn't leave home, she would be raped, murdered, or both. She had two young children – an infant and a toddler – and few resources. She knew she couldn't count on the police to protect her. With no other choice, she decided to risk a voyage of more than 2,000 miles north, much of the trip on foot through difficult and dangerous terrain, in the hope that she would find refuge from her persecutors.
Instead, when she reached El Paso, Texas, she and her children were apprehended by U.S. Border Patrol, who promptly sent the family to a makeshift detention facility in remote Artesia, New Mexico. There, this mother and her children joined hundreds of other women and children from Guatemala, El Salvador, and Honduras, many fleeing gang violence, brutal sexual abuse, and a life of perpetual fear and insecurity.
Artesia, it turns out, is the detention equivalent of a black hole. It is a three- or four-hour drive from the closest major metropolitan areas where immigration attorneys might be found.
Equally disturbing are reports that these families – some of the most vulnerable women and children in the world – have been denied information about their fundamental rights under U.S. law, in particular their right to consult a lawyer or to seek asylum or other relief from deportation on account of their real fears of persecution if they are returned to their home countries.
Immigration officers staffing Artesia routinely interfere with the ability of these families to contact a lawyer. Phone calls – even calls to lawyers – are permitted only once per day and are routinely cut off by immigration officers after just three or five minutes. Many lawyers have been denied access to clients or told by the authorities that they are not allowed to speak up in hearings to defend their clients' rights. When one detained mother attempted to find an attorney by asking an official at Artesia if she could get one, he told her that an attorney was not necessary. Another detained mother was told by an ICE officer that an attorney would only facilitate her deportation.
The procedures these mothers have received to evaluate their potential asylum claims have been fundamentally flawed. Because many mothers have been required to bring their children to their asylum interviews, they have been forced to choose between recounting gruesome acts of violence in front of their children, or staying silent and forgoing the chance to explain the basis for their fear of returning home.
As a result of these and other egregious rights violations, the percentage of families detained in Artesia who are given the chance to apply for asylum is far below the national average – even though these families' stories are some of the worst possibly imaginable.
The Obama administration – which has repeatedly stated it intends to send these families back – is violating federal immigration law, the constitutional right to due process, and our obligations under international law to protect vulnerable refugees.
Today, a broad coalition of immigrants' rights organizations and immigration practitioners filed suit to challenge what is happening at Artesia. We seek to ensure that each individual has a real chance to apply for asylum or other forms of immigration relief and to establish once and for all that the government cannot rush deportations at the expense of our Constitution, our obligations under international law, and our nation's finest values.
The case is M.S.P.C. v. Johnson Counsel include ACLU, ACLU of New Mexico, ACLU Border Litigation Project, ACLU of San Diego & Imperial Counties, ACLU of the Nation's Capital, the National Immigration Project of the National Lawyers Guild, the American Immigration Council, the National Immigration Law Center, Van Der Hout, Brigagliano, & Nightingale, LLP, and Jenner & Block LLP.
By Rachel Nusbaum, Media Strategist, ACLU Washington Legislative Office
The story always starts the same way: unaccompanied kids, and sometimes whole families, fleeing terrible violence in Central America.
It must be terrible indeed, because the journey north is a perilous one. Yet parents and kids continue to make that dangerous trip. So these stories leave me wondering, what drives them to do it? What could possibly inspire that much fear and desperation?
Despite the considerable news coverage of the humanitarian crisis playing out along the U.S.-Mexico border, we are still missing this key piece of the puzzle.
This type of violence is not new in El Salvador. The parents and grandparents of the children fleeing El Salvador today experienced a civil war that began in the late 1970s and raged for almost a decade. The United States supported the military regime throughout that conflict, despite their use of terror through death squads, recruitment of child soldiers, thousands of assassinations, and rampant human rights violations.
I asked Elizabeth Kennedy, who has been in El Salvador since November 2013, what day-to-day life is like there now. Elizabeth is a Fulbright fellow working with returned child and youth migrants from Mexico and the United States in El Salvador.
The conversation that follows has been lightly edited for length.
Is it as violent as people say in Central America?
Yes. On average, 12 to 13 people a day are dying in this small nation of 6.2 million people. Only Honduras and Syria have definitively higher homicide rates.
A lot of this violence is directed at young people or their family members. Pockets with little violence exist – for example, in the wealthiest neighborhoods – but in most places, people are off the streets from sun down to sun up. News reports commonly indicate that the community heard the shots at 2:00 or 3:00 AM, but no one went out to see what happened until sunrise.
When I walk down the street in a nice neighborhood, I pass an armed guard at nearly every home, and these homes often have electrified fences. In other neighborhoods, military or police patrol on foot in groups with several guns. In the worst neighborhoods, no police or military are present, but gang members can walk in the street, sometimes with their weapons showing.
What is life like for children in El Salvador?
First and foremost, extreme violence is a regular part of many children's lives from an early age. They lose friends and family members. They hear gunshots. They see beatings, rapes, and murders. Fourteen of the 322 children I interviewed between January and May had at least one parent who had been murdered. Plus, they are forcibly recruited into gangs, or they are targeted by police and military for being young.
Then, there are the disappearances. 142 children have been reported as disappeared in the past year, though the true total may be higher. Only 13 of these children were eventually located and returned to their parents or guardians. Some were kidnapped from their school, home, shopping center, or even church. Additionally, between 2005 and 2011, 5,300 children were murdered in El Salvador.
Finally, schools are often not safe places. 130 of 322 children I interviewed between January and May attend a school with a gang presence nearby, and 100 attend a school with a gang presence inside. Seventy have quit studying because of the fear they have to be at their schools. The long-term consequences of not completing one's formal schooling are many for the children and the nation.
Is there a particular child or experience that stands out to you?
I really admire this youth who spoke out – at great personal risk – about what happened to him and his family, because he believes transparency is necessary for justice. He lived in the United States for over seven years, when his mom received a removal order. They elected to voluntarily depart, and within months of their return, they were extorted. They attempted to flee to the United States but were detained and deported from Mexico. His dad was murdered within days, and the youth is now working to support his family. I have met a handful of others in his position.
There's also the 12-year-old boy who came to us with no shoes. He had been beaten and robbed at a detention center in Tapachula. The aunt with whom he traveled left him to sit alone. I sat next to him and talked with him, and we eventually discussed whether he would try to migrate again. He told me: "Both my parents are in the U.S. I have a sibling I have never met. No one loves me here. What would you do?"
Why don't people just go to another part of their country? Aren't there any places where people can feel safe?
El Salvador is a small country, and arguably, there is no safe part of the country unless you have a large amount of economic resources, which most Salvadorans do not.
In my interviews with over 100 Salvadorans who were trying to flee the country after being victims of crime, less than 15 reported the crime. Instead, they fled the neighborhood, often more than once, and then decided to flee the country after criminal elements still found them. Remarkably, two of these victims were police and still had no confidence in the police's ability to protect them. They both told me: "If they [the gang] want you, you can stay and die. Or you can flee. Nothing else will do."
Importantly, gangs in El Salvador are transnational criminal organizations capable of acting throughout the country and region. They are internationally networked and have operating revenues of millions of dollars and large weapons stockpiles. In this regard, their security apparatus is arguably stronger than the nation's military and police.
Do you think people in the United States would feel the same way they do now about those fleeing Central America if they could see what you see?
I think if U.S. citizens came here and had to live in the neighborhoods where many of these kids and adults live, they would feel very differently. They would understand the fear and desperation, and they would likely respond with much more empathy and compassion. People in the United States need to ask themselves: What would I do if someone put a gun to my head and said I could leave or die? What would I do if someone did that to my child? What would I do if I thought that threat could happen any day?
These are the impossible choices many Central Americans face.
By Noa Yachot, Communications Strategist, ACLU
It is not a great time to be a journalist in America.
The assault on the First Amendment by militarized police in Ferguson, Mo., continues unabated, and the press is not spared. Since the start of protests against the August 9 killing of Michael Brown, journalists in Ferguson have been arrested, fired on, threatened, and assaulted.
After more than a week of heavy-handed police violence – through the use of tactics and weapons better suited for a warzone than an American suburb – freedoms of speech and the press were dealt a major legal blow on Tuesday. A federal court denied a motion from the ACLU of Missouri for an emergency order to prevent police from enforcing a ban on standing in place for more than five seconds. The "keep-moving mandate" (also known as the five-second rule) remains in place, criminalizing constitutionally protected activity and placing a dangerous barrier on the ability of the media to bring us stories from this city under siege. As Tony Rothert, the legal director of the ACLU of Missouri, told MSNBC, "In many ways, the First Amendment has been suspended in Ferguson."
This defeat came on the heels of an earlier victory, in which the ACLU of Missouri reached an agreement with the police, stating that members of the public and the press can record on-duty police officers. That was good news – except it should never have been up for debate, because you always have the right to photograph what's plainly visible in public. Including the police.
Addressing events in Ferguson, President Obama had some encouraging words last week that defended this country's proud tradition of media freedom. "Here, in the United States of America," he said, "police should not be bullying or arresting journalists who are just trying to do their jobs and report to the American people on what they see on the ground."
But those strong words, a reflection of the foundational role of the media in our democracy, belie what has become a sustained attack by the government on press freedoms.
The Obama administration is the most aggressive in U.S. history when it comes to prosecuting journalists' sources for disclosing unauthorized leaks. It has gone after the journalists, too. In just one example, it continues to pursue a Bush-era subpoena of James Risen, a New York Times journalist, to testify against a source accused of leaking information about CIA efforts to derail Iran's nuclear program. In an effort to sever journalists from their sources, Director of National Intelligence James Clapper recently went so far as to sign a directive forbidding intelligence officials from talking to the press – even about unclassified matters – without securing permission in advance.
Widespread government surveillance, in addition to imperiling the privacy rights of millions of Americans, has also severely undermined the freedom of the press. A recent ACLU-Human Rights Watch report shows that many journalists have found information and sources increasingly hard to come by. To make matters more burdensome, they've had to resort to elaborate techniques to keep their communications secret. The result? We get less information about what our government is doing in our name.
The right to record the actions of the government without it interfering is a basic prerequisite to a functioning democracy. Restrictions on media freedom – whether via surveillance, prosecutions, or tear gas – rob us of the information we need to engage in informed debates, assess our government's policies and practices, and hold it to account. Journalists aren't criminals, and they shouldn't have to act like spies.
But there's still a fight to be fought. A media shield law taken up last year by the Senate gives journalists important protection from having to disclose their sources (though it does have some problems, including a deeply concerning national security exception).
In Ferguson and elsewhere, the ACLU remains vigilant, making sure protesters and journalists know their rights and challenging restrictions on speech. So be sure to brush up – and if your rights have been violated, we want to know about it.
By Lee Rowland, Staff Attorney, ACLU Speech, Privacy & Technology Project
This piece originally ran at POLITICO.
Tear gas, rubber bullets, and assault weapons; free speech zones, gags, and press pens: This is the arsenal of the police state. Some of these tactics are physical. The other ones—all the more pernicious for their quiet coercion—impose a veil of silence over the actions of law enforcement. And each of these weapons has been unleashed on the people of Ferguson, Missouri, since the killing of Michael Brown.
In the first few nights of protest, Ferguson and St. Louis County police responded with a truly inconceivable show of force. Officers suited up in DHS-funded military hand-me-downs, outfitted with goggles, machine guns, sniper rifles, riot gear and gas masks. Distressing warzone-like images flickered into the public consciousness: photos of armed police cohorts pointing loaded automatic weapons at citizens with their hands in the air, women and children's faces streaming with tear gas and milk and white officers targeting black protesters like it's Selma circa 1964.
The message was clear: The public is the enemy. And as we the people started getting that message, Ferguson starting working harder to shoot the messengers.
Police repeatedly ordered protesters to turn off cameras and cell phones recording law enforcement. In response, the ACLU of Missouri had to go into court to seek an emergency agreement reminding the police that photographing them is a constitutionally protected right. Roving SWAT teams, perplexingly, raided a McDonald's and arrested two journalists engaged in the suspicious act of recharging their phones. Police aimed tear gas canisters directly at members of the press. A local news crew caught police riding up afterwards and disassembling another crew's media equipment.
Then came more systemic approaches to shutting down the speech of the public and the press. First: a nighttime curfew, applied to a broad area, whose details were obscure and seemingly applied ad hoc on the ground. Of the seven people arrested that night, three claim to have been on their own driveway. Of course, since journalists were subject to the curfew, we don't have a lot of objective facts about what happened in those wee hours.
That curfew only lasted a few days. It was then replaced by a "no standing" rule of dubious origin and authority, under which police threatened the arrest of anyone who stood still for more than 5 seconds, day or night. That also included press. CNN's Don Lemon was pushed along the sidewalk on live television, after being told by authorities to be exactly where he was. As he rightly said to his audience: "Imagine what they are doing to people when [sic] you don't see on national television, the people who don't have a voice like we do."
However, reporters were allowed to stand still—so long as they stayed in the "press pen," a designated space so far off from the action between the cops and the protesters that reporters who tried to witness anything of consequence were tear gassed. And the police didn't hesitate to show they meant business, arresting Getty photographer Scott Olson when he strayed. Like other reporters arrested, he too was promptly released without a report or charges. The point of these repeat press arrests appears to be preventing accountability, not protecting public safety.
And officials have insisted they're not stopping.
The ACLU again went into court on an emergency basis to challenge the 5-second rule. The court declined to shut it down, relying on the state attorney general's word that the city had set aside a designated "free speech zone," which provided ample opportunities for protest. But when ACLU of Missouri staff went to confirm that description after the hearing, the area was empty and off-limits to the public. As of yesterday, the state did ensure the area was open, but it's totally inadequate. Removed from the symbolic location of Michael Brown's death, isolated and sterile, the "free speech zone" is truly where free speech goes to die. And it means that the rest of Ferguson is officially a speech-free zone.
Each of these tactics is an unconstitutional restriction on the rights of speech and assembly in its own right. But this constantly changing whirlwind of restrictions further deepens the constitutional sinkhole Ferguson has become. When residents are bewildered as to when, where, and how they can gather and speak without risking arrest, that uncertainty itself casts a shadow of intimidation and self-censorship across the right of free speech. And of course, that uncertainty is often happening at the business end of a high-powered rifle.
So why, especially in light of our strong First Amendment traditions regularly upheld by the courts, has Ferguson discarded the First Amendment? Perhaps it's because the stakes are so high.
The more news and images we see streaming out of Ferguson, the more we have visceral evidence of the systemic problems of race, inequality, militarization and an us-versus-them cop mentality that are fueling continued protest and righteous outrage. And the more we know about Ferguson, the more concern we should have. An astoundingly non-diverse police department. Financial incentives to over-enforce minor infractions. Charging a victim of police brutality for getting blood on officers' clothing. These aren't mere anecdotes. They are threads in the fabric of a truth we the people have a right – a duty – to reveal and unravel.
As our Supreme Court recognized in Roth v. United States, "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."
There is much political and social change desired by the people in Ferguson, and throughout our country. Not one more unarmed young black man should die at the hands of the police. Not one more local police force should get financial incentives to militarize and mobilize against its own citizens. Not one more photographer should risk arrest by doing her job. The iconic images coming out of Ferguson illustrate the urgency of change.
So we the people must give thanks. We give thanks to the journalists who have been zip-tied in the fight for transparency. We give thanks to the tweeters who crowdsource the eyes and ears of America. We give thanks to those on the streets of Ferguson who lift up their camera phones to bear witness to the truth in real time. Because they are the agents of the change we must all seek together.
Our words, our voices, and our pictures are the most devastating weapons of all to entrenched systems of injustice: systems that led to the death of Michael Brown and to the anger it spawned.
By Jennifer Bellamy, Washington Legislative Office
Long after the news cameras leave town, Attorney General Eric Holder wants the people in Ferguson to know he stands with them. He's in Missouri today, visiting the front lines.
In the days since Michael Brown was shot, the scene in Ferguson has been bleak. Protesters have been corralled into padlocked protest zones, bombarded with tear gas, and patrolled by police armed with weapons designed for combat. As has always been the case with overly aggressive policing in this country, communities of color have been hardest hit.
Protestors on the ground are demanding change. Their calls are being echoed across the country.
That's why it's so important that Eric Holder is in Ferguson today.
As attorney general, Eric Holder is uniquely positioned to help ensure that we do not have another Ferguson. We are encouraged to see that Holder has sent 40 FBI agents to conduct an independent investigation into Michael Brown's shooting. But we cannot just investigate what went wrong; We need to make the sweeping policy changes that will prevent future tragedies.
For many, mourning Michael Brown's death is unacceptably familiar. We have a long history of racially biased policing in this country, and too many instances of excessive force used against unarmed black men. Racial profiling and bias got us here. Addressing pervasive racial bias in our criminal justice system is the way to move forward.
To that end, when Holder returns to Washington, his first move should be to update the Department of Justice's guidance on the use of race by law enforcement officials, to include a comprehensive ban on profiling by federal law enforcement which would apply to state and local law enforcement who work in partnership with the federal government or receive federal funding. To protect and serve is not a suggestion. It is a mandate that law enforcement must apply equally to all communities. To that end, Holder should also lead the Justice Department to take steps such as requiring racial bias training and guidance for forces that receive federal grants.
The militarized response to protestors in Ferguson gives us a stark view into how our state and local law enforcement agencies have amassed wartime arsenals, and as our recent report makes clear, this militarized policing has disproportionately targeted communities of color. Holder, at least in part, holds the purse strings, as the Justice Department is one of several federal agencies funneling billions of dollars to state and local police departments to help them purchase military weapons and equipment. Our communities are not warzones, and Holder should also act quickly to mandate that his department apply stricter rules – or at least some oversight – to local police forces that are given military equipment for free.
For far too long, we have had two criminal justice systems in this country: one that serves and protects white communities, and one that criminalizes and controls black and brown communities. Eric Holder can provide the moral leadership we need to end the siege on communities of color. He's in Ferguson today because he is ready to address these systemic problems. Let's make sure he follows through.
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For more, please click here to read a letter to the Department of Justice outlining the ACLU's and other civil rights groups' recommended reforms to eliminate police abuse.
For the ACLU's complete response to Ferguson, click here.
By Rita Cant, Attorney, ACLU Speech, Privacy & Technology Project
In the criminal justice system, we're familiar with two separate yet equally important groups of lawyers. On one side, we have attorneys for the government, who investigate, charge, and prosecute crimes. On the other, we have the defense attorneys, who advise the accused, preserve their rights, and represent them before the court.
At the Guantánamo Bay military commissions, where I observed pre-trial hearings last week, things are not so simple.
Take the prosecution of Ramzi bin al Shibh, one of the five detainees being tried for his alleged role in the 9/11 attacks. At least four legal teams are now directly involved in Mr. Shibh's case. They include not just the prosecution and defense teams, but also two additional sets of lawyers, each charged with investigating highly fraught issues of fairness and procedure that have arisen in this unique military commission system. These additional legal teams are necessary to address yet another problem of the government's own creation.
First, we have a special litigation team from the Department of Justice, examining whether Mr. Shibh's defense was compromised by the FBI's secret infiltration of his legal team. As you'll remember, hearings were stalled in April, when lead counsel for Mr. Shibh revealed that his team had been under ongoing FBI investigation and that members of the defense were recruited as FBI informants. Last week, the proceedings were again derailed while the DOJ's special litigation team advised the commission judge – without explaining what the FBI was even investigating – that the investigations had ceased and could no longer impair the detainees' representation or their attorney-client relationships. (Some of the detainees' lawyers cried foul, arguing that past probes continue to wreak havoc on their defense.)
Second, we have an independent defense counsel appointed to help Mr. Shibh understand the DOJ team's report and decide for himself whether his defense has been compromised and if he needs new counsel. Frustratingly, the DOJ's special litigators refused to share any details about the probes, so the prosecution and defense teams, as well as the public, are left to speculate about the nature of the FBI investigations and the extent of their reach. Without information about the risks and potential conflicts of continued representation, Mr. Shibh's own lawyers cannot advise him on this issue. In the meantime, everyone must wait for independent defense counsel to get full disclosure from the DOJ special litigators in order to advise Mr. Shibh about whether he needs a new defense team.
So why all these layers of lawyers?
They're the direct result of external government agencies' secret tampering in this case. And extra lawyers – "shuffling in and out of the courtroom," as defense counsel Walter Ruiz describes it – are costly to the 9/11 prosecution itself. For example, the last three commission hearings were consumed by side-litigation to discover how much damage has been done by the FBI and other agencies operating in the shadows of military justice.
During last week's proceedings, there was much discussion from the prosecution team about the need to avoid delay. But the reality on the ground at Guantánamo is that an unfair, unbalanced playing field gives carte blanche to outside influences to derail the commission's proceedings, resulting in more litigation, parallel investigations, extra lawyers – and increased delays. That's on top of the additional legal challenges resulting from the government's rejection of federal courts' more equitable system of justice in favor of military commissions. In the end, of course, history judges trials not by how quickly they convict people, but how fairly they arrive at their result.
In this instance, again, delay becomes necessary to achieve some greater measure of fairness. Unfortunately, we're still very far away from that.