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Living in Fear for Her Life

Fri, 10/20/2017 - 16:45
Transgender women like Zahara Green face targeted discrimination and extreme violence in prisons.

I am a queer woman who has been incarcerated. I was arrested for tax evasion and mail fraud 20 years ago. I was tried, convicted, and incarcerated – first in 2010. I was released shortly after that, when my conviction was overturned but then incarcerated again in 2013 and released in 2014.

My queerness made me a target of harassment and punishment by correctional officers. When I was released, I wanted to help shine a light on the abuses that queer and transgender women face in prison and to give these women a stronger voice.

In 2014, I started Witness to Mass Incarceration, a digital library and story-based advocacy project, to empower formerly incarcerated women and LGBTQIA people in the fight for alternatives to mass incarceration. I’ve interviewed many queer women and trans women about their experiences in prison and post-incarceration.
A year and a half ago, I met Zahara Green at the National LGBT/HIV Criminal Justice Working Group – a coalition of over 50 LGBT organizations, advocates, and formerly incarcerated LGBTQ people working to reduce the harm caused by the criminal justice system. Since then, I’ve had the privilege of interviewing her about her life.

Zahara left home at sixteen. She was arrested by age 19 for shoplifting. Facing an all-white jury in a rural county in Georgia, she pled guilty, she said, because “I knew this jury would convict me for being a trans woman.”

Zahara spent five years in prison with most of her time in solitary confinement. That is where most transgender women are housed. Under the guise of “protective custody,” correctional officers often put trans women into Special Housing Units — which often means solitary confinement. There they can be locked up for months, or even years. In a survey conducted by an advocacy group Black and Pink, 85 percent of nearly 1,200 LGBTQ prisoners reported they had spent time in solitary confinement. Just under half of those respondents had been placed in solitary confinement for two years or more.

Zahara was put in solitary confinement in several prisons in Georgia until she was incarcerated at Rogers State Prison for men, where she was placed in general population. Upon her arrival, she was sent to be stripped alongside of a roomful of men. As she started to take off her clothes, an officer stopped her and said, “hold on, hold on”. But the men already saw her stripped. The damage was done. When an officer trotted her out to general populations, she realized she had been let out to the wolves.

An inmate approached her at her bed and said to her, “You are going to need protection in a place like this. You are going to need a man to protect you.” She just stared at him. The first time Zahara walked into the prison cafeteria the man who had approached her earlier sat down next to her. He said, “I told my boys you are mine and they are going to be looking out for you.” He followed her everywhere the next week. He verbally threatened her and then physically assaulted and raped her. Zahara lived in a perpetual state of fear. “I felt this guy was going to kill me,” she told me.

She wrote her mother telling her she was in fear for her life and asked her mother to get her the names of senior level people in the Georgia Department of Correction to contact. Zahara decided to write the deputy warden, telling him the entire story and the name of the inmate sexually harassing her. She never heard from him.

Trans women are five times more likely to be sexually assaulted by prison staff than other inmates, and nine times more likely to be sexually assaulted by other inmates.

Zahara became an advocate for trans women while incarcerated. She started fighting the injustices that she and other incarcerated trans women face daily. She filed grievances, wrote letters, and began working on impact litigation.

Upon release from prison, Zahara changed her name, found a job, and quickly advanced into retail management. Like so many formerly incarcerated people, she experienced challenges along the way. It inspired her to establish TRANScending Barriers Atlanta, a trans-led and trans issue-focused non-profit that serves gender non-conforming people in Georgia. As founder, Zahara specializes in criminal justice advocacy for transgender women and fighting the abuses and discrimination these women face in the criminal justice system. She’s working to make sure transgender people have a place in this world.

Attacks on Transgender Students Under the Guise of Privacy Will Not Stand

Fri, 10/20/2017 - 13:45
The attacks against transgender equality in schools are getting more and more outlandish.

In June, the Frederick County school board in western Maryland passed and updated policies addressing discrimination, harassment, and bullying of transgender and gender non-conforming students. These policies, among other things, affirm students’ right to access restrooms and locker rooms consistent with their gender identity. But in August, a parent and student sued the school district, claiming that their privacy rights are being violated by the policy.  

Today the ACLU filed a motion to intervene on behalf of James van Kuilenburg, a transgender student in Frederick County, to defend the school board’s policy and stop members of the community from attempting to disrupt his and other trans students’ education by taking away their right to be treated with dignity as the gender they are.   As van Kuilenburg explained, the policy “gave me the ability to finally be myself and access all parts of my education.” The consequences of being forced to go to school while being barred from boys’ facilities would be “devastating,” he said. “There is an epidemic of trans students feeling unsafe, depressed, and suicidal,” and a reversal of the policy would “create a culture of fear and misunderstanding.”

Yet it’s the opponents of trans equality who say they’re the aggrieved ones, claiming that their right to privacy and freedom from discrimination is infringed when a transgender individual enters single-sex spaces.  In school districts across the country, including similar ongoing ACLU cases in Illinois to Pennsylvania, trans youth are under attack.

These attacks on trans rights, however, are factually and legally without merit. Experts in law enforcement and gender-based violence have concluded time and time again that discriminating against transgender people does not make anyone safer. On the contrary, excluding transgender people from public spaces consistent with their gender identity can have dire consequences for their health and wellbeing, especially for young people.

Fortunately, the courts are recognizing the frivolity of these claims. In April, we intervened in a similar case in Boyertown, Pennsylvania, to defend transgender students’ right to use public spaces and pursue education free from discrimination. In that case, the court issued an important ruling in our favor. The Boyertown court recognized that “high school students… have no constitutional right not to share restrooms and locker rooms with transgender students whose sex assigned at birth is different than theirs.” The court found Boyertown Area High School already had sufficient privacy protections for uncomfortable students and could not single out transgender students for disfavored and unlawful treatment in response to the discomfort of a small group of students.

The student and parent in Frederick County filed suit under an even more tenuous theory. In this case, the plaintiff is a cisgender girl who has alleged she was videotaped in the restroom at school by another cisgender female student. Somehow, the student has alleged that this violation of privacy will be remedied by excluding transgender students from the restroom and other single-sex facilities and programs. Even more bewildering, this far-fetched theory is being raised in a context where she has not alleged ever encountering a transgender student at school, let alone in the restroom.

We can’t let this kind of fear-mongering stand. Like the plaintiffs in Boyertown, the cisgender student in Frederick County is not asking for increased privacy. Rather, she is demanding the right to change and use the restroom in spaces that excludes her transgender peers.

The Boyertown court appropriately recognized that the mere presence of transgender students in school locker rooms and restrooms does not violate anyone’s right to privacy. According to the judge, the existence of private stalls and changing areas in the school facilities already demonstrated that administrators took privacy into consideration. Furthermore, cisgender students who were uncomfortable even sharing space with transgender students could utilize separate single-user facilities. During the hearing, a medical expert testified that adolescent discomfort with nudity could happen to anyone, anywhere, regardless of their gender. As the court concluded, there is nothing offensive or invasive about the presence of transgender students in communal restrooms and locker rooms. Indeed, many courts have recognized schools must treat transgender students consistently with their gender to comply with federal law.

The decision in Boyertown is an important victory as opponents continue to launch attacks on transgender students through the guise of privacy. The message from Boyertown is clear—this harmful and unfounded reasoning will not stand. That’s why we’re standing up for trans students in Frederick County, and we will continue to stand up for trans youth wherever they are being targeted.

If You’re Boycotting Israel in This Texas Town, Then No Hurricane Relief for You

Fri, 10/20/2017 - 11:45
In Dickinson, Texas, opinions of Israel can determine eligibility for hurricane relief.

If you’re a resident of a small Texas city and in need of hurricane recovery funds, you’ll have to certify that you’re not boycotting Israel.

Dickinson, Texas, announced earlier this week that it was accepting applications for grants to help residents rebuild homes and businesses damaged by Hurricane Harvey, which took a particularly devastating toll on this Houston-area town of some 20,000 people. The application is mainly comprised of unremarkable legalities, with one notable exception: a clause stating that the applicant will not take part in a boycott of Israel for the duration of the grant.

In addition to being mystifying — what do home repairs in Texas have to do with a country more than 7,000 miles away? — this requirement is clearly unconstitutional. The First Amendment protects the right of Americans to participate in political boycotts, a right explicitly recognized by the Supreme Court in a case that concerned an NAACP-organized boycott to protest white supremacy in Port Gibson, Mississippi. And the government cannot force people to give up their peaceful political activity in order to be eligible for public benefits. Those kinds of ideological litmus test went out of vogue with the McCarthy-era loyalty oaths that the ACLU fought against in the 1950s and 1960s.

The clause in Dickinson’s application seems to stem from a Texas state law passed earlier this year, which bans the state from contracting with entities that boycott Israeli companies or companies that do business in Israel or its settlements. Other cities are also enforcing the law. The city of Galveston has issued guidelines requiring contractors who bid for neighborhood projects to certify that they're not boycotting Israel, and it even requires contractors providing police uniforms to sign the certification. Austin and San Antonio have implemented similar requirements.

The ACLU filed a lawsuit earlier this month against a similar law in Kansas. In that lawsuit, we represent a math teacher who was asked to certify that she doesn’t boycott Israel in order to participate in a government program training other teachers throughout the state. She said she could not sign the form in good conscience because she adheres to a boycott call from her Mennonite church, and the state refused to contract with her.

esther koontz: kansas Won’t Let Me Train Math Teachers Because I Boycott Israel

The First Amendment was designed to prevent the power of the state from coming down against one side of an important political debate. Yet numerous state legislatures have passed laws to stamp out boycotts of Israel, and Congress is looking to pass a related federal bill that the ACLU vigorously opposes.

It’s deeply concerning that these efforts are now trickling down to the municipal level as well. We encourage anyone from Dickinson asked to sign such a statement, or any other Texans asked to sign these certifications, to contact the ACLU of Texas.

Hey, Pennsylvania, Legalize Marijuana and Stop Destroying People’s Lives

Fri, 10/20/2017 - 10:15
Marijuana arrests disproportionately affect people of color, ruin lives, and cost taxpayers hundreds of millions of dollars.

The war on marijuana continues to rage in Pennsylvania.

Despite slow progress in loosening the commonwealth’s laws on the devil’s lettuce — including a new medical cannabis products law and municipal decriminalization ordinances in its two largest cities, its state capital, and the borough that is home to its largest university — arrests for marijuana offenses are not abating. In fact, arrests are increasing. And the greatest impact is on people of color.

On Monday, the ACLU of Pennsylvania released a new report that analyzes seven years of arrest data, from 2010 to 2016, which was compiled from the Uniform Crime Reporting System. That analysis found that arrests of adults for marijuana possession increased by 33 percent in the 66 counties outside of Philadelphia. (We calculated that number without Philadelphia because its decriminalization ordinance went into effect in October 2014, which led to a dramatic drop in criminal arrests for possession and made Philadelphia an outlier in our data set.) Over those seven years, arrests for possession increased in 50 of Pennsylvania’s 67 counties.

And the racial disparity in the arrest rates of white people and Black people is not subsiding. In fact, it’s getting worse. The racial disparity increased every year in that time period. By 2016, a Black adult was eight times more likely to be arrested for marijuana possession than a white adult, despite survey data that consistently shows that usage rates are effectively the same among people of all races.

In all, there were about 178,000 arrests for marijuana-related offenses in Pennsylvania during those seven years, and nearly 80 percent of them were for possession. Using the RAND Corporation’s estimate for the costs per arrest from 2015, we concluded that taxpayers spent more than $225 million on those arrests.

It is time to end prohibition and legalize marijuana in Pennsylvania.

There are incremental steps that we could pursue to diminish arrests and racial disparities — more municipal decriminalization ordinances, anti-bias training for law enforcement, and the like. But after absorbing these statistics, we realized that incremental progress is not enough. Only the legalization of marijuana for recreational use, as eight other states have already done, will end the devastating impact that marijuana arrests have on people’s lives.

Take David, a respected African-American healthcare worker who grew marijuana at home for his ailing wife, who suffered from chronic pain and depression. David (which is a pseudonym we’ve used to diminish further stigma from his arrest) was already an avid gardener, and the cannabis that he grew was intended solely to ease his wife’s suffering.

When she passed, he began dismantling his garden, slowly and piece by piece. Somehow, it was discovered, and David soon found himself on the receiving end of criminal charges, including a felony charge of possession with intent to deliver. David had no intention to sell to anyone. The cannabis he grew was a labor of love for his dying wife. To avoid the risk of a longer sentence, David pled guilty to the felony charge, with additional charges dropped, and spent six months in jail. He also lost his medical licenses and was forced to file for bankruptcy.

A marijuana arrest can put severe limitations on a person’s ability to carry out their daily life, including barriers to employment, education, and housing. And for what? A plant that is no more dangerous — and probably less so — than alcohol?

Pennsylvanians increasingly recognize this. A poll released last month by Franklin and Marshall College found 59 percent of those surveyed support legalization of marijuana, with just 31 percent opposed. The same poll showed 51 percent support last spring and 40 percent support last year. Support for legalization is growing every month.

When police target recreational marijuana consumers, they destroy lives. It is useless, pointless, and unnecessarily punitive. It is time to end prohibition and legalize marijuana in Pennsylvania.

Jane Doe Wants an Abortion but the Government Is Hell Bent on Stopping Her

Thu, 10/19/2017 - 22:00
The federal government is holding a young woman hostage to force her to carry her pregnancy to term against her will.

After Jane Doe, a 17-year-old immigrant from Central America, found out she was pregnant last month, she decided to have an abortion. But the Office of Refugee Resettlement —  the federal government agency charged with caring for unaccompanied immigrant minors once they enter the country —  is prohibiting her from getting one.

The federal government has a new policy that allows it to veto an unaccompanied minors’ abortion decision, and government officials are doing everything imaginable to prevent Ms. Doe from accessing abortion. They have instructed the shelter where Jane Doe is staying not to transport Ms. Doe or allow Ms. Doe’s court-appointed guardian to transport her to the health care center to have an abortion —  essentially holding her hostage.

The new policy is the creation of E. Scott Lloyd, the man President Trump appointed in March 2017 to head ORR. Prior to becoming head of ORR, he was senior policy coordinator for the Knights of Columbus, an anti-abortion Catholic charity. In law school, he assisted the parents of Terri Schiavo, a woman in a vegetative state, in a legal battle to prevent her husband and guardian from removing her feeding tube. In 2010, he founded a law firm, Legal Works Apostolate, which specialized in providing counsel “informed by the particular concerns of families and institutions that must navigate the ‘thickets of the law’ while remaining faithful to Church teaching.”

Rather than allowing Ms. Doe to access a legal procedure that she wants, ORR forced her to go for counseling at a religious, anti-abortion crisis pregnancy center, where she was forced to have a sonogram.

Ms. Doe has never wavered in her decision to have an abortion. Texas law requires minors to have either parental consent or permission from a judge before having an abortion. Ms. Doe went to court and got a judicial permission to have the abortion. The Texas court appointed a guardian and an attorney to look after her best interests. She informed both of them that she decided to have an abortion and made an appointment to get one.

Although the guardian and the attorney are willing to provide transport and have secured financing for the abortion,  the government has refused to temporarily release her from custody or transport her themselves, insisting that either would be tantamount to “facilitating abortion.”

On October 18, we went to court seeking an order to have Jane Doe released so that she could get the abortion she needs. The government argued that they weren’t holding Ms. Doe hostage because she could just agree to be deported to her home country.

Judge Tanya S. Chutkan appeared incredulous at the government argument.

“I am astounded by that position. I have to tell you, I'm astounded that the government is going to make this 17-year-old girl who has received judicial authorization for a medical procedure to which she is constitutionally authorized choose between a pregnancy that she does not want to go forward with to term or returning to the country from which she left. Those are her options. And is it your position that that does not constitute a substantial obstacle? She can leave the country or she cannot get her abortion, those are her options?”

Judge Chutkan promptly ordered the government to release Ms. Doe to her state-appointed guardian so that she could get the abortion.

Ms. Doe had her first of two necessary appointments to get her abortion on October 19, and she was scheduled to get the abortion October 20. However, the government appealed the circuit court’s decision and requested an immediate administrative stay to prevent Jane Doe from getting an elective abortion that would be “irreversible.”

The appellate court granted the request, so we will be back in court on Friday at 10 a.m. to once again argue on behalf of Ms. Doe, so she can get the care to which she is constitutionally entitled — if only the government would step out of her way.

Under This Law, Encouraging Undocumented Immigrants to Seek Shelter Could Be a Crime

Thu, 10/19/2017 - 13:45
An immigration law criminalizes various types of speech on behalf of immigrants, in clear violation of the First Amendment.

As wildfires raged across Northern California last week, Sen. Kamala Harris (D-Calif.) took to Twitter to encourage those in need to seek shelter, even if they didn’t have lawful immigration status.

Senator Harris’s desire to protect all her constituents is admirable. It also may be a crime.

A section of the federal Immigration and Naturalization Act states that any person who “encourages or induces” a non-citizen to “come to, enter, or reside” in this country in violation of the law is guilty of a felony, and may be imprisoned for up to five years. For a person to be found guilty, the prosecution must show that the person knew or recklessly disregarded the fact that the non-citizen’s action was unlawful. Harris’s tweet arguably “encouraged” undocumented immigrants to “reside” in the country. That’s precisely the type of speech a zealous federal prosecutor could target for criminal sanction under this law.

Senator Harris is in good company. Other potential “criminals” include:

  • A woman who tells her undocumented housekeeper that she should not depart the U.S. or else she won’t be allowed back in. (A former U.S. Customs and Border Protection official stood trial in just such a case.)
  • A university president who publishes an op-ed arguing that DACA recipients should consider her campus to be a “sanctuary” after their deferred action expires.
  • A community organization that announces its shelters and soup kitchens are open to homeless undocumented youth in their area.

This law clearly oversteps the First Amendment, which does not allow the government to criminalize these kinds of speech. The Supreme Court has stated clearly: “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” That’s why the ACLU yesterday submitted an amicus brief to the U.S. Court of Appeals for the Ninth Circuit arguing that this law is unconstitutional.

The government can only prohibit “unprotected” speech, like incitement to violence or speech that itself constitutes a crime, like harassment. Speech “encouraging” immigration violations does not qualify. This makes the law we challenged “presumptively unconstitutional,” because it regulates the content of things we can say.

The ACLU filed its brief in a criminal case against Evelyn Sineneng-Smith, an immigration consultant from San Jose, California. Ms. Sineneng-Smith was convicted in 2013 for filing labor applications for clients she knew were not eligible for green cards at the time. Despite the fact that all the information Ms. Sineneng-Smith filed was accurate — including disclosure of the fact that her clients had been in the country illegally for years — she was convicted of “encouraging or inducing” her clients to remain in the U.S. She has appealed her conviction.

Our brief argues that the First Amendment protects the right of an individual — whether Evelyn Sineneng-Smith or Sen. Kamala Harris — to speak their mind on this hotly debated, sensitive subject without fear of prosecution. This includes speaking with and advocating for undocumented individuals who must navigate the complex web of U.S. immigration law. With this anti-encouragement law on the books, the only sure way to avoid prosecution for such speech is self-censorship.

Now, as ever, immigration is an issue of enormous public concern and controversy, especially given the hostile stance of the Trump administration and some state officials toward immigrant communities. For those in our communities who are undocumented immigrants, or whose loved ones are undocumented immigrants, there is nothing more important than speaking on these issues. The last several months have demonstrated precisely how movements for immigrant justice rely on robust political speech: organizing rallies against deportation, speaking to undocumented people about how to avoid being separated from their families, and more.

Freedom of speech is at the foundation of these efforts, and we must strive to keep it that way.

Women Who Have Been Through the Criminal Justice System Need Support, but They Aren’t Getting It

Thu, 10/19/2017 - 11:00
I’ve seen firsthand how the criminal justice system fails women. That needs to change.

Women aren’t often included in discussions of the criminal justice system, but they face huge hardships while incarcerated and after their release. I would know: I spent the ages of 19 to 29 in federal prison. Now, eight years later, I am a nationally licensed and certified clinical laboratory scientist and a proud mom, but my journey to this point wasn’t easy.

I’ve seen firsthand how the criminal justice system fails women in prison by not providing mental health resources and education. Then it fails them again by not providing reentry support.

Read a report on Women’s Mass Incarceration

That’s why I started Operation Restoration, which helps women and girls pursue an education as they reenter society after incarceration. Founded in 2016, we support our clients at every stage of the reentry process, from providing them with clothing to helping them enroll in college and pay for their books. I started Operation Restoration to provide women and girls with the kind of support and resources that I needed but didn’t have access to when I got out of prison.

I grew up in the small town of Vacherie, Louisiana. My mom was a judge and my dad worked as a supervisor at an oil refinery. I always excelled in school, and at 18, I was awarded a college scholarship to pursue physics and engineering. On the surface, I seemed like a young woman on the path to success.

But beneath that shiny veneer, I wasn’t doing so well.

At 14, I was diagnosed with PTSD related to abuse I had been subjected to as a child. That trauma was never dealt with. As a result, I started drinking heavily and falling in with the wrong crowd. I completed a semester of college but soon got entangled in a bad relationship. I dropped out and enlisted in the Navy in order to escape. Not long after, I made a decision that would change the course of my life forever: I joined some friends in stealing cars and burning down a car dealership.

Like so many other incarcerated women, I entered prison dealing with mental health issues and past trauma. I continued to struggle with PTSD, but there were no resources in prison to help me recover. I became aggressive and started fighting a lot. I got in trouble all the time and spent an entire year in solitary confinement.

I was fortunate enough to be transferred to a different prison where I could take classes offered by Tallahassee Community College. It changed my life. I felt lost for so long, but being able to pursue my education gave me purpose. I stopped getting in trouble and earned high grades in my classes. By the time I was released from prison, I knew that I would never go back.

But life after prison presented even more challenges. The world had changed while I was incarcerated. I felt isolated from my family and the people I had known before. I didn’t know how to use a cellphone or Google something. Not even New Orleans, a city that I loved, felt familiar. I had gone to prison before Hurricane Katrina, and some of the things that I thought would anchor me upon my release no longer existed.

Unless there are better services for women coming out of prison, the community, families, and children all suffer.

To make matters worse, there didn’t seem to be many resources available to help me get back on my feet. Everyone needs help reentering into society after prison, but when formerly incarcerated women lack resources there can be especially huge ramifications. Incarcerated and formerly incarcerated women are so often ignored, but the demands on them upon release are vast. They are expected to put the family back together, care for children, and support other family members who may be incarcerated. Unless there are better services for women coming out of prison, the community, families, and children all suffer.

Since being released from prison, I have gone back to school and started a successful career. A lot of people are surprised when they learn about my past. They say that I’m not what a formerly incarcerated person is supposed to be like. But my story is not unique. There are so many formerly incarcerated women out there just like me. We all want respect, need support, and, most importantly, deserve the chance to live a meaningful life without unnecessary barriers.

This article is part of a series featuring women’s perspectives on incarceration. Read a report on the drivers of women’s incarceration.

The Muslim Ban Loses in Court Again

Wed, 10/18/2017 - 17:00
Two federal judges agree: No Muslim ban ever.

Another day, another pair of court losses for President Trump’s outrageous and illegal Muslim Ban.

Yesterday, federal courts in Maryland and Hawaii rejected the latest iteration of the ban the president promised as a candidate and has been trying to put in place ever since. Just like its predecessors, Muslim Ban 3.0 violates the Constitution, federal statutes, and our bedrock values of religious neutrality and tolerance.

As we have explained, this new ban suffers from the same fundamental flaws as the earlier versions, which were issued in January and March. The courts agree.

In IRAP v. Trump — the case brought by the ACLU and its partners at the National Immigration Law Center and International Refugee Assistance Project — the court held that the new ban, like the earlier versions, violates the Establishment Clause of the Constitution. That clause requires the government to remain neutral among religions and prohibits official condemnation of people because of their religion. The court explained that the new ban is “the inextricable re-animation of the twice-enjoined Muslim ban.” In fact, it is even worse: The prior versions were temporary, but this one is indefinite and potentially permanent.

The court explained that a person with “common sense” would see this ban as “the latest incarnation of the ‘Muslim ban’ originally promised by President Trump as a candidate for the presidency.” The inclusion in this third version of two non-Muslim-majority countries — North Korea and Venezuela — did not “persuasively show a lack of religious purpose” for the ban, the court observed. Rather the bans on both those countries will affect relatively tiny groups compared to the banned Muslim-majority nations. Including them is just window dressing.

The new ban also leans heavily on a secret report that, the government has used as justification. According to the government, the report recommended that a ban (of some kind) be imposed on those countries. But, as the court rightly concluded, the report changes nothing. The president decided what ban to impose, and, as the court noted, the results of the report itself were “at least partially pre-ordained.” In fact, media reports have already brought to light outright manipulation of a related agency process by Stephen Miller, a hardline anti-immigrant advisor to Trump. Miller reportedly instructed agency officials preparing a report on refugees that the “President believes refugees cost more, and the results of this study shouldn’t embarrass the President” — even though the facts and a draft report show that refugees are an economic positive.

Nor, finally, was the court swayed by the government’s reliance on the president’s speech in Saudi Arabia earlier this year “in which he made various positive statements about Islam.” As the court observed, the speech “did not in any way repudiate the President’s prior intention to impose a Muslim ban.” The government’s reliance on such a half-hearted statement is telling.

Any doubt about the president’s continuing message of intolerance and condemnation was dispelled in August, when he invoked a false historical anecdote to endorse an anti-Muslim war crime — extrajudicial executions by “shooting Muslims with bullets dipped in pig’s blood.” And throughout the several versions of the ban and many stages of the legal challenges, Trump has consistently spoken “straight to the American people” urging a “tougher” ban, like the original he signed a week into office as an attempt to deliver on the promised Muslim ban. As the court rightly concluded, common sense is clear that this ban, like the earlier versions, is the president’s attempt to make good on his promise.

Likewise, both courts concluded that the new ban also violates federal statutes.

As the Hawaii court explained, the president — like other government officials — must “operate within a set of rules,” and when he “forsakes those rules in favor of his own, problems ensue.” The ban forsakes the rules Congress has laid down and attempts to create a new immigration system of the president’s own design. It upends Congress’s system of robust individualized visa screening, in which a visa applicant must already prove to a consular official’s satisfaction that he is not a security threat.

And, as the Hawaii court observed, it “suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be detrimental to the interests of the United States.” Finally, as the Maryland and Hawaii courts explained, it adopts nationality-based discrimination for people seeking green cards, even though Congress has specifically banned that discrimination.

This is surely not the end of this struggle. The government has demonstrated that it will keep trying to establish a Muslim ban. And as long as it does, we and our partners will keep fighting to defend our friends, neighbors, colleagues, and visitors of every religion and to preserve the promise of the Constitution.

The University of North Carolina Continues to Defend Its Right to Discriminate Against the Trans Community

Wed, 10/18/2017 - 16:30
Even as one case potentially settles, the fight continues.

After two years of being attacked by their very own state government, trans North Carolinians are moving closer to obtaining partial victory.

Today Gov. Roy Cooper and Attorney General Josh Stein have proposed a possible settlement to limit the harms of the state’s anti-transgender laws on trans and gender non-conforming people living in and visiting North Carolina. While the governor and attorney general have at least attempted to mitigated the damage they have done, the University of North Carolina has opted to continue to defend the law in court. Once again sitting on the sidelines and jeopardizing the well-being of their students, facility, and staff, the university seeks to maintain a right to discriminate.

For the past two years, North Carolina lawmakers have prioritized attacks on trans people. Our lives, our bodies, our ability to exist in public have been compromised amidst rhetoric and official policy that falsely and dangerously situates us as inherent threats to the privacy of others.

First, former Gov. Pat McCrory signed the infamous H.B. 2, which, among other things, codified a sweeping ban on trans people’s use of single-sex facilities in accordance with our gender. The law passed through a special session of the General Assembly in a matter of hours, was signed by McCrory that same day, and immediately went into effect. Though it prompted nationwide backlash from sports leagues, businesses, artists, and others — becoming a cautionary tale of what not to do — the impact on the trans community in North Carolina and across the country was felt immediately. We became pawns in a political game while our pain, discrimination, and trauma was exacerbated and our ability to exist in public life threatened.

Later, McCrory lost the gubernatorial election in November 2016, partly as a result of the unpopularity H.B. 2, but the state’s anti-trans legacy lived on. Though Gov. Roy Cooper campaigned on a platform to repeal H.B. 2, he never made it happen. Instead, like his predecessor, he signed a bill that passed through the assembly in a matter of hours, without any community buy-in. The law, which purported to repeal H.B. 2, did no such thing. The replacement, H.B. 142, was just another attack on trans people with different language.

The ACLU and Lambda Legal have spent nearly two years challenging H.B. 2 and then H.B. 142 in court. During that time, the Department of Justice switched sides. First it sued North Carolina for violating federal law. But after the election of President Trump, the Justice Department proclaimed its support for the anti-trans positions advanced by North Carolina lawmakers.

The plaintiffs in the lawsuit, along with Gov. Cooper and Attorney General Stein, are now asking the court to enter a consent decree — a binding agreement — limiting the ability of H.B. 142 to target and harm transgender people in North Carolina.

Like H.B. 2, H.B. 142 created fear and uncertainty for transgender and gender non-conforming people in North Carolina, who were either explicitly or effectively barred from using multi-user, single-sex facilities, like restrooms in government buildings. The proposed agreement among some of the parties would ensure that no state actor could bar transgender individuals from using restrooms or locker rooms that accord with who we are and how we live our lives. Today’s proposal is no substitute for comprehensive legal protections or the full repeal of the law, but it is a start.

Nothing is final yet, and the judge will still have to sign-off on the proposed agreement among the plaintiffs, the attorney general, and the governor. The legislature will likely join UNC in fighting the proposal and continuing to attack the LGBT community

Even if the agreement is accepted by the court, other parts of H.B. 142 will remain, like the ban on localities passing non-discrimination protections that include protections for LGBTQ people and others not explicitly protected under state law.

No matter what happens in court or in the legislature, the harms of H.B. 2 and H.B. 142 have been felt across the state. Trans and gender non-conforming people feel targeted and abandoned, and the UNC system has repeatedly stood on the side of discrimination while their students and staff suffer.

At best, this is a start, and our resolve to keep fighting remains.

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

Wed, 10/18/2017 - 10:00
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?

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.

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

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

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

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

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’

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

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

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.

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.

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