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Updated: 34 weeks 3 days ago

"Ag-Gag" Not Just About Animal Welfare

Fri, 05/03/2013 - 6:54am

A story out of Utah this week neatly showcased the rising concerns among civil liberties and press freedom groups around so-called "ag-gag" laws, which, in various ways, make it illegal to document animal abuse on factory farms and other agricultural businesses. In Utah, authorities charged a local woman with taking photographs of animal cruelty from a public vantage point, and then quickly dropped the charges after significant public outcry.

Ag-gag laws have long been highly unpopular among the animal rights and food safety movements. But, the Utah case shows the extent to which these laws are flagrant violations of the First Amendment—and how much they have in common with other recent attempts to limit our constitutional right to photograph and record (while in public). While the animal welfare aspects to the problem are central, these constitutional considerations should not receive short shrift.

There are three basic flavors of ag-gag laws, and many states have introduced measures that include more than one. The first type makes it illegal to record an agricultural operation without the consent of its owner or operator. The second makes it a crime to lie on your resume to gain access to an agricultural facility. And the third requires an individual that suspects she has recorded a depiction of animal cruelty to turn the recording over to the cops. This last flavor is particularly insidious, as it has been characterized by supporters as an anti-animal cruelty measure (but actually seeks to make long-term investigations impossible).

Taken together, these measures—which are law in six states, and have been introduced in 11 others—threaten to virtually eliminate undercover investigations into not just animal abuse, but labor practices, food safety, environmental pollution, and numerous other consumer and public welfare concerns. Worse, many ag-gag laws and bills are quite loose in their definition of agricultural operations, meaning they would cover not only factory farms and slaughterhouses, but even supermarkets and restaurants.

Aside from the public policy concerns, ag-gag laws raise major constitutional issues, some of which may not be immediately obvious.

First, both the unauthorized recording and "resume fraud" provisions punish speech without proof of harm. There are very limited categories of speech—think perjury, price-fixing, or threatening to punch someone in the face—that are subject to lesser First Amendment protection because they are inherently harmful. But ag-gag laws cover speech without evidence of harm, making it illegal to record video without consent, or to lie on your resume to get that video, even if you never do anything with it.

Second, and relatedly, the employment "fraud" statutes are particularly bad because they are not actually fraud statutes. Fraud is one of those categories of speech that is not subject to full First Amendment protection, but to prove fraud you have to show injury resulting from a material misrepresentation. Here, not only do the laws not require proof of injury, the injury that could result isn't actually a result of the lie on the resume.

Rather, when you lie on your resume to get a job at a factory farm and take a video of the abuse of downer cows, it's the abuse of downer cows that results in fewer people doing business with that company, not the recording of the abuse. I realize that point isn't particularly intuitive, but it's true. The Supreme Court recently cited a similar rationale in striking down a law making it illegal to lie about having the Medal of Honor without proof of harm.

There's a lot more to say about ag-gag laws, and we'll be saying it. For now, please urge Governor Haslam of Tennessee to veto that state's bill. I've also taken the liberty of listing all of the enacted and pending ag-gag measures around the country below, as well as noting what type they are. "UR" is an unauthorized recording provision, "EF" is employment fraud, and "MR" is mandatory reporting.

Laws in force:

  • Kansas (UR)
  • Montana (UR)
  • North Dakota (UR)
  • Utah (UR, EF)
  • Iowa (UR, EF)
  • Missouri (MR)

Legislation pending (some of these measures have since died, but could be reintroduced):

  • Arkansas (UR, EF)
  • California (MR)
  • Indiana (UR, EF, and enhanced penalties for certain property crimes)
  • Nebraska (MR, EF)
  • New Hampshire (MR)
  • New Mexico (UR, EF)
  • North Carolina (EF, MR)
  • Pennsylvania (UR, EF)
  • Tennessee (MR)
  • Vermont (EF)
  • Wyoming (UR, EF, MR)

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Rhode Island Governor Signs Law Officially Legalizing Marriage for Same-Sex Couples

Thu, 05/02/2013 - 3:23pm

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

PROVIDENCE, R.I.– Rhode Island governor Lincoln Chafee signed a law legalizing marriage for same-sex couples today. Chafee signed the bill shortly after its passage by the state legislature.

Rhode Island is now the tenth state, in addition to the District of Columbia, to recognize marriage for same-sex couples. It joins all other New England states – Massachusetts, Vermont, New Hampshire, Connecticut and Maine – as well as Maryland, Washington, New York, and Iowa.

"Today is a great day for freedom and equality in Rhode Island," said Steven Brown, executive director of the ACLU of Rhode Island. "I am very proud to see our state join the rest of New England by passing this momentous law."

"This is a tremendous victory for the thousands of loving and committed couples and their families in Rhode Island who can now get the recognition and protection that only marriage can provide," said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, "This was the result of years of hard work, and we will keep working with our partners to continue the fight to realize the freedom to marry for families across the country."

Chertoff on Google Glass

Thu, 05/02/2013 - 2:56pm

We’ve been doing a fair amount of thinking about the implications of consumer wearable cameras like Google Glass, and I’m sure we’ll have more to say in this space on the subject. But meanwhile, we’re pleasantly surprised to report a very trenchant analysis of the technology’s implications for our privacy by none other than Michael Chertoff. Writing on CNN’s web page, the former DHS chief writes,

So, who owns and what happens to the user's [video] data? Can the entire database be mined and analyzed for commercial purposes? What rules will apply when law enforcement seeks access to the data for a criminal or national security investigation? For how long will the data be retained? ….

Even those who might be willing to forgo some degree of privacy to enhance national security should be concerned about a corporate America that will have an unrestricted continuous video record of millions.

What is to prevent a corporation from targeting a particular individual, using face recognition technology to assemble all uploaded videos in which he appears, and effectively constructing a surveillance record that can be used to analyze his life?

Chertoff says he’s inclined to think that government regulation may be needed. I haven’t seen Chertoff say anything about the threat of pervasive government surveillance, which would make him a kind of anti-libertarian on privacy—in favor of restricting corporations, but not the government. For the average, relatively powerless person trying to live their life, the threat comes from both directions.

Separate Is Not Equal

Thu, 05/02/2013 - 2:02pm

In a letter released this week, the U.S. Department of Justice (DOJ) informed Wisconsin that its publicly-funded private school voucher program must comply with the Americans with Disabilities Act. In its letter, DOJ reminded Wisconsin that the state's "obligation to eliminate discrimination against students with disabilities is not obviated by the fact that the schools participating in the program are private secular and religious schools."

DOJ's letter came in response to a June 2011 complaint from the ACLU, the ACLU of Wisconsin, and Disability Rights Wisconsin, alleging that the state's program was violating the rights of students with disabilities by excluding most of them from the voucher program.

Milwaukee has been operating the country's oldest voucher or "school choice" program, for twenty years, and the program was recently expanded to other Wisconsin cities. Very few students with disabilities in Milwaukee use private school vouchers, either because they perceive that the program is only for non-disabled students or because the schools themselves counsel children with disabilities out of the program. This has had the effect of segregating students with disabilities in the Milwaukee Public Schools, while cannibalizing the district's resources through the diversion of money from the public schools to private institutions. Voucher programs, and to some extent, tax credit laws, which use public dollars for private education are becoming more popular in recent years.

There are now 20 states and the District of Columbia with either a tax credit for parents of students attending private schools, or voucher programs like the one in Wisconsin that give a student a taxpayer-funded voucher worth a certain amount – in this case approximately $6,500 -- to pay private school tuition. These programs are touted as giving poor students, often in so-called "failing districts," the same "choice" that wealthy students have. The problem is that these programs do not give poor students much choice at all.

Publicly-funded voucher programs have the effect of setting up a separate escape hatch for only a few, leaving the majority of the poor students in schools that are even less likely to succeed than they were before the voucher program or tax credit began. Furthermore, the private schools that spring up to educate a child for $6,500 are producing results that are no better than the public school district – in Milwaukee, for example, three years of comparison test scores show they are performing worse than the public system. We also know that the Milwaukee parents who take advantage of these programs tend to have higher education levels and children without disabilities, leaving the public school district with a higher percentage of children with disabilities and parents with less education. There are few checks in place to ensure that all of the schools accepting vouchers are more than glorified day care providing convenient hours for parents.

On top of that, some private schools in states like Georgia and Alabama, where tax credits have recently been put into place, were founded as segregation academies to thwart federal integration efforts. While the program in Milwaukee and its school district serve almost entirely students of color, as "school choice" spreads around the country, the stage is set for these programs to become even more exclusionary and segregated. We know this because Milwaukee's voucher program already excludes students with disabilities and segregates them into the public school district while at the same time stripping the district of much needed funds to educate them. If we permit this to continue, we are condoning separate schools for a number of groups of students, including racial minorities, students with disabilities, religious minorities and LGBT students. What we have known for the fifty years since Brown v. Board of Education is that separate is not equal. School voucher programs and tax credits do not provide a choice for everyone. They create publicly funded separate schools. However, DOJ's investigation and demand to Wisconsin is a step in the direction of ensuring that states are not permitted to create a civil rights vacuum by delegating public education to private schools.

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VICTORY! Maryland and Oregon Extend Driving Privileges to All Immigrants

Thu, 05/02/2013 - 1:55pm

Today Maryland and Oregon are celebrating the signing of new laws expanding access to driver's licenses to all residents, including undocumented immigrants. We are part of a movement. Our hope is that our success inspires the passage of bills in more than a dozen other states considering similar measures.

In most states today, it is difficult, if not impossible, for people to go about their daily lives without the ability to drive. Simple but essential tasks such as driving kids to school or to extracurricular activities, picking up groceries, going to the doctor, and traveling to workbecome riddled with hardship. As a result, people without access to driver's licenses are faced with the difficult "choice" of either not meeting their basic needs or driving and risking arrest and other negative repercussions.

Against this backdrop, having a driver's license can provide critical protection for immigrants' civil rights. Across the country, immigrants are subjected to harassment, racial profiling, and needless arrest and detention by law enforcement officials who use driving without a license to route aspiring citizens into deportation proceedings. Many immigrants have been driven into the shadows as a result, living in fear of these consequences every time they find themselves compelled to get behind the wheel of a car. At least in Maryland and Oregon, they will now be able to get driver's licenses—and having a drivers' license means no longer having to live with that fear.

Needless to say, providing greater access to driver's licenses is also good for public safety. Applying for a license means learning the rules of the road. It means getting trained and tested, and being able to obtain insurance coverage. Licensed drivers are less likely to get into accidents and less likely to flee the scene of an accident. If only for these pragmatic reasons, expanding access to driver's licenses is a no-brainer.

More importantly, denying licenses to people who contribute so much to our culture and economy—who form such an integral part of our societies—runs counter to the fundamental principle of treating all our residents with equal dignity and respect.

By supporting and passing this bill, Marylanders and Oregonians have once again made the right choice and have sent a clear message to our elected representatives in Congress: We welcome aspiring citizens in our states. We are taking local steps to ensure that all our residents have access to basic necessities while they await the opportunity to embark on their path to citizenship. We hope and expect you to complement our efforts by passing just and humane comprehensive immigration reform now. In the meantime, we join states across the country taking practical steps to enact common-sense policies right now.

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U.N. Working Group Finds That U.S. Needs to Do More to Address the Adverse Business Impacts on Human Rights

Thu, 05/02/2013 - 1:45pm

The United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises yesterday completed its first country visit to the United States. The Working Group was formed by the U.N. Human Rights Council in 2011 to disseminate and implement the recently developed "Guiding Principles on Business and Human Rights," which set forth countries' obligation to protect people from human rights violations caused by businesses or other entities and the necessity of appropriate remedies for such violations. The Guiding Principles also outline businesses' responsibility to respect human rights. At the invitation of the U.S. government, the Working Group visited many cities and met with diverse stakeholders including federal and state officials, businesses, trade unions, and civil society organizations.

Upon completion of its visit, the Working Group found that the United States "still faces significant challenges to address the adverse impacts of business activities on human rights." A statement describing the Working Group's preliminary observations discussed these challenges, highlighting areas such as:

  • The lack of protections for agricultural workers
  • The failure of U.S. labor laws to live up to international standards
  • Weak regulatory frameworks that do not prevent abuse
  • The challenge of holding U.S. corporations accountable for violations committed abroad

Specific violations reported to the Working Group included minimum wage law violations and wage theft, the negative impact of the financial industry on the right to housing in the context of the recent economic crisis, and the lack of remedy available to many of those whose human rights have been violated by business activities.

On Monday, the ACLU's Chandra Bhatnagar participated in a civil society consultation and briefed the Working Group on four issues:

For each of these areas, the ACLU explained the human rights violations that occur and made recommendations for how to prevent them from continuing. Our guestworker program should incorporate protections to ensure that workers who come here have the rights and freedoms necessary to prevent abuse. Financial institutions should be held accountable to the full measure of anti-discrimination law. Public safety and justice should be entrusted only to transparent and accountable public institutions, not to private companies that profit from the incarceration of human beings. And human trafficking on U.S. government contracts must end through proper and responsible implementation of President Obama's Executive Order on the subject.

The U.S. government made a positive first step by inviting the Working Group to visit. Now, the U.S. must heed the advice of the Working Group and do more to respect, protect, and fulfill human rights and fundamental freedoms with respect to business. In the meantime, the ACLU will continue to advocate and encourage the government to do so. The Working Group will submit a more extensive final report on its United States country visit to the U.N. Human Rights Council in mid-2014.

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Shaking Off the Shackles of State-Sponsored Killing

Thu, 05/02/2013 - 8:38am

Hooray for Maryland! Expressing concerns about the risk of deadly error, the exorbitant and ever-increasing cost, racial bias and the unending torment of murder victims' family members, today Maryland Governor, Martin O'Malley, signed into law repeal of that state's death penalty. We applaud the legislature and the Governor on their decision to end state-sponsored homicide in Maryland. We are a better nation for it.

Part of a noticeable trend – as Dr. King might say, the arc of the moral universe bending toward justice -- Maryland is the sixth state in six years to repeal the death penalty, joining New Jersey, New York, New Mexico, Illinois and Connecticut.

It is important to note that Maryland, is the first state below the Mason-Dixon line, which divided slave states from non-slave states during the early history of the country, to repeal the death penalty. Justice-loving peoples everywhere applaud the significance of this step, given the racial bias endemic in use of the death penalty nationwide.

Maryland has finally acted on the recommendation of the 2008 Maryland Commission on Capital Punishment to end the death penalty. After intensive review of all facets of the state's death penalty system, the Commission found that just one case that results in the death penalty costs the state about $3 million, almost $2 million more per case than the life without parole alternative, including prison time. The Commission also found that there is no persuasive evidence that the death penalty deters crime. In fact, numerous law enforcement agencies around the country have agree that the death penalty does not deter murders and statistics show that states with the death penalty continue to have the highest murder rates.

It is important to note that the Commission condemned Maryland's death penalty system as race-biased. Race bias in death penalty cases is complicated, often having much to do with the race of the victim as well as the race of the accused. Even now, five years after the Commission released its findings, all five of Maryland's current death row inmates were convicted of murders of white victims. The victims of all five men who have been executed since 1976 were also white. Yet 80% of Maryland murder victims are Black. Such a system, steeped in racial bias, simply cannot be trusted to produce fair and accurate results.

Many families of murder victims in Maryland have consistently supported repeal of the death penalty as a violent, inappropriate response to their loss and pain that does not heal them or make the world a better place. Advocacy groups across the spectrum, including the NAACP, Maryland Catholic Conference, Murder Victims Families for Human Rights, National Black Police Association, and the ACLU of Maryland, played a critical role in the repeal effort. All these groups deserve thanks for today's victory.

Maryland has the dubious honor of having the first DNA exoneree freed from MD death row in 1993. Kirk Bloodsworth was convicted of a dreadful rape and murder he did not commit. Kirk has dedicated his re-found life after exoneration to eradicating the death penalty, so that no other innocent person will suffer as he did. For him, and for all Marylanders , this is a good day for justice. Passage of this bill finally guarantees, at least in Maryland, that we will no longer run the risk of executing an innocent person.

To take action on this issue in your state, check out this map.

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Protecting and Serving All, Regardless of Faith

Wed, 05/01/2013 - 1:47pm

As a former police chief of numerous Oklahoma towns, including Seminole, Clinton, Blackwell, Owasso, Bethany, and Chickasha, I have seen officers disciplined for a variety of insubordinate acts. During my 35 years in law enforcement, however, I have never had to discipline an officer for refusing to carry out an assignment because he objects to the faith of the individuals he has been ordered to serve. Indeed, no officer serving under me has claimed that right because every law enforcement official knows that refusing orders on these grounds would not only amount to insubordination, but would also violate the oath sworn by all officers to uphold the U.S. Constitution. That oath requires that as, police officials, we serve and protect all members of the community, regardless of faith or belief.

That's why I am deeply troubled by a lawsuit filed by a Tulsa police officer, who claimed the extraordinary right to ignore an assignment that involved followers of the Muslim faith. As part of its community-policing initiative, the Tulsa Police Department decided to participate in a Law Enforcement Appreciation Day hosted by the Islamic Society of Tulsa. In my experience, community policing is an essential part of any comprehensive crime prevention plan. It allows police departments to build relationships, trust, and credibility with the community so that citizens cooperate and assist with criminal investigations and rely on the police to resolve disputes.

Like the 300-plus local events hosted by religious organizations and attended by Department officials in recent years, the Islamic Society Appreciation Day offered the Department a crucial opportunity to build bridges with a growing, but often-marginalized community population. Captain Fields and other shift supervisors were ordered to assign several officers to attend the event, or to attend themselves. Attending officers were not required to participate in any religious discussion, prayer, or worship service, and the Department assured Fields that officers would not have be present in the building at all when the day's planned worship service began.

Nevertheless, Captain Fields refused to carry out the orders, claiming that he could not attend – or even order subordinates to attend – because it would violate his belief that he must proselytize anyone who he knows does not share his Christian faith. After receiving a two-week suspension, Fields sued the city for violating his religious exercise rights.

From my perspective as a longtime law enforcement officer, the Department had no choice but to hold Captain Fields accountable for his insubordination. Allowing officers to refuse assignments because they deem them unimportant or because they conflict with their personal religious beliefs would set an unworkable precedent for law enforcement agencies across the state and nation and severely undermine their ability to effectively and efficiently protect the public.

What's more, allowing officers to reject orders to serve people of other faiths would give rise to religious strife and hostility within the community and would likely result in a two-tiered law enforcement system that treats religious minorities as second-class citizens. As the ACLU correctly points out in a friend-of-the-court brief filed last week with the U.S. Court of Appeals for the Tenth Circuit, under the precedent that Captain Fields seeks to set, he or other officers could refuse an assignment to guard a Sikh Temple that has been targeted for violence, ignore orders to provide a police presence at a war protest featuring Buddhist or other non-Christian speakers, decline to give a safety presentation at a Catholic school, avoid conducting foot patrols in neighborhoods with large Orthodox Jewish populations, or refuse to aid an injured woman in a hijab.

The right claimed by Captain Fields is fundamentally inconsistent with his sworn oath, which applies equally to reactive calls for assistance and more proactive duties, such as community policing—a critical part of any comprehensive crime prevention plan. It is, therefore, Captain Fields's professional responsibility to comply with all assignments issued by his superiors and his constitutional obligation to do so without regard to the faith of members of the public who will be served.

Edward L. Smith is the former president of the Oklahoma Association of Chiefs of Police. In his 35-plus years in law enforcement, he has served with the Oklahoma City Police Department and as the chief of police for a number of Oklahoma towns. In these positions, he led the first two law enforcement agencies in Oklahoma to be nationally accredited by the National Commission on Accreditation for Law Enforcement Agencies, Inc. Smith is a graduate of the Oklahoma City University and the FBI National Academy. He currently serves as the Director of Public Safety and campus chief of police at the University of Arkansas at Little Rock.

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Eighteen Months of Sometimes Deadly Screw-Ups: Ohio Must Get Out of the For-Profit Prison Business

Wed, 05/01/2013 - 12:44pm

Eighteen months after the first state-owned prison sold to a for-profit prison company, and there is no doubt that the Corrections Corporation of America (CCA) is woefully unfit for the job. From dirty conditions, rampant drug use, and staggering increases in violence, the Lake Erie Correctional Institution is in a dangerous decline, leaving many to questions whether the state needs to step in and assume greater control. To illustrate the deterioration of the for-profit prison, the ACLU of Ohio released a timeline showing the disturbing series of events at Lake Erie.

Let's look at CCA's problems by the numbers:

  • 47: instances of non-compliance outlined in a September 2012 Ohio Department of Rehabilitation and Corrections audit.
  • 300%: increase in inmate on staff violence, and
  • 187.5%: increase in inmate on inmate violence from 2010-2012.
  • 248: calls to law enforcement from local residents in 2012 asking for patrols around the prison because of rampant crime, especially people throwing drug contraband over the prison fences. There were only 157 such reports in the first 11 years combined of the prison's existence.
  • Two: number of inmates who overdosed on heroin smuggled into the facility in the last year, with one of the inmates dying.
  • 39: number of inmates transferred from Lake Erie in January 2013 after the facility was in lockdown for over a week following several gang fights.
  • 130%: the level of overcrowding in segregation units at the for-profit prison, meaning inmates are triple-bunked and sleeping on the floors of cells designed for two people. Inmates in these units are locked inside their cells for 22 to 24 hours per day.
  • 500: number of inmates kept on bunk restrictions (i.e., locked inside their cells for 22 to 24 hours per day) after another inmate was seriously injured in an April 7 fight.
  • $500,000: penalties the state levied against CCA over the past eighteen months because of their mismanagement of the prison.
  • $127.3 million: difference between what the state of Ohio wanted for selling Lake Erie and how much it ultimately earned.

Advocates and members of the media are beginning to recognize that Ohio cannot wait until it is too late to stop the rapid decline of this for-profit prison. The ACLU has asked state legislators to intervene and hold CCA accountable for its mismanagement, but the question remains: what else has to go wrong for officials to wake up to the fact that Ohio should get out of the for-profit prison industry altogether?

Thirty years after CCA was founded, it is clear that doing business with them is risky for taxpayers, communities, employees and inmates. Ohio's unfortunate gamble in allowing CCA to purchase a state prison outright should serve as a tale of caution to other states: seller beware when CCA wants to buy your prisons.

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NEW LAWSUIT: Police Should Stop Arresting Innocent People Just for Being on a Business’s Property

Wed, 05/01/2013 - 10:46am

The next time you're in Grand Rapids, Michigan and need to pull into a gas station to make a phone call, check your email, or take a look at your road map, you had better think twice. For years, the Grand Rapids Police Department has taken it upon themselves to determine who does and does not belong on the property of commercial businesses across the city – in many cases questioning, searching, and arresting innocent people for criminal trespass without warning and without the business owner's knowledge. Sound like a clear violation of the Bill of Rights? It is.

Today, the American Civil Liberties Union of Michigan and the ACLU's Criminal Law Reform Project filed a federal lawsuit to challenge this longstanding practice.

First, a play-by-play of just how the Grand Rapids police have been riding roughshod over the Bill of Rights:

  • Step One: The Grand Rapids police solicit business owners to sign a form letter stating their intent to prosecute all trespassers. More than 800 businesses have signed such letters just in the past several years.
  • Step Two: Since these letters do not articulate a business owner's desire to keep a specific person off their property and are not directed at any particular person, Grand Rapids police officers take it upon themselves to determine who does and does not "belong" on the premises of a business that has signed a letter.
  • Step Three: In many cases, police arrest patrons of the business without even giving them a warning that they must leave. Arresting innocent people, including business patrons, for criminal trespassing is not only unconstitutional and degrading to those subject to arrest, it's also damaging to the very businesses police purport to help.

And second, a quick glimpse into the damage that this practice is doing to real people's lives. The ACLU filed the lawsuit on behalf of two men, Gilbert Weber and Tyrone Hightower, who were arrested and jailed for trespassing in Grand Rapids although they were doing nothing wrong at the time.

  • Gilbert Weber: In June 2012, Weber, 46, stopped his car at a local BP gas station so he could stretch and relieve his chronic hip pain. Police approached Weber and questioned him about his presence at the gas station. Police then conducted a search of his car and administered a breathalyzer test, which he passed. Having failed to find any other basis to arrest Weber, the police arrested him for trespassing and he was jailed for three days until a friend bailed him out. At his hearing, it was revealed that at no time had the gas station clerk asked Weber to leave nor had the clerk complained to police. Instead, police arrested Weber based solely on the general Letter of Intent signed by the business owner. The charges against Weber were dismissed by a judge.
  • Tyrone Hightower: Hightower, 33, was arrested for trespassing in September 2011 when he and two friends pulled into the parking lot of Cheero's Sports Bar. It was raining at the time, so Hightower and a friend waited in the car while another friend held a spot for them in the long line to get in. As the men waited for their turn, police approached the car and arrested the pair. A police video of the encounter shows police citing the general Letter of Intent signed by the owner of Cheero's as the basis for the arrest. Hightower was jailed for several hours and later the charges were dropped by the prosecutor.

The ACLU lawsuit asks the court to order an immediate halt to this unconstitutional practice and declare that the City of Grand Rapids and Grand Rapids Police Department, through the use of general Letters of Intent, have violated Weber and Hightower's Fourth Amendment right to be free from unlawful arrests.

Check our case page for more information and updates as the case progresses.

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A Proud History: LGBT Athletes in American Pro Sports

Wed, 05/01/2013 - 9:22am

When NBA player Jason Collins announced this week "I'm gay", praise for his groundbreaking courage poured in from all directions. Collins' announcement is a very big deal, especially since the worldwide popularity of NBA basketball makes him a highly visible role model for youth. However, we shouldn't lose sight of where the Jason Collins milestone fits into the long history of openly LGBT people's participation in American professional sports. Generally speaking, women athletes have been faster to come out than men, athletes in individual sports have come out more rapidly than those in team sports, and athletes in relatively obscure sports have come out more quickly than those in more popular sports. The reasons for these patterns are complex and debatable, but particular examples of individual courage over the past three decades are clear.

Czech-American tennis great Martina Navratilova came out publicly as bisexual way back in 1981. Then a rising star, Navratilova went on to win a record total of 167 singles tournaments and become arguably the greatest women's tennis player of all time. She says that discrimination based on her sexual orientation "cost [her] plenty of money" over the course of her sports career, given sponsors' reluctance at the time to link their brands to her, but that didn't stop her from being vocal about LGBT issues. Navratilova even participated as one of the plaintiffs in the ACLU/Lambda Legal lawsuit challenging a 1992 anti-gay Colorado ballot initiative that ultimately resulted in the landmark Romer v. Evans Supreme Court decision. Following in Navratilova's footsteps, a number of female tennis and golf players came out of the closet during the 1980s and 1990s. In 2004, LPGA star Rosie Jones publicly announced she was a lesbian at the same time she announced a sponsorship deal with Olivia, organizers of lesbian-themed cruises and vacations, thus proving that the economic effects of coming out need not be all negative.

The WNBA began play in 1997. Despite – or perhaps because of – its reputation as a niche activity for lesbians, the WNBA had no out current players for many years. In 2005, reigning MVP Sheryl Swoopes of the Houston Comets broke through the "lavender ceiling" by publicly identifying herself as a lesbian (though later she married a man and distanced herself from both lesbian and bisexual identities). In the years following, more and more WNBA players have felt comfortable enough to publicly come out. Minnesota Lynx star Seimone Augustus and her fiancée spoke out against a 2012 ballot initiative that sought to write a ban on marriage for same-sex couples into the Minnesota constitution. Brittney Griner, who dominated women's college basketball for the past four years, was picked first in the 2013 WNBA draft by the Phoenix Mercury, days later officially came out as a lesbian, and days after that became the first out athlete to sign a sponsorship deal with Nike.

Women's soccer has also seen a few players come out publicly in recent years. Natasha Kai, then a member of the U.S. Soccer Women's National Team (and later also a member of the U.S. women's national rugby sevens team), mentioned dating a woman in a 2008 interview. Megan Rapinoe, star midfielder for the soccer National Team and formerly of the professional club Chicago Red Stars, gave an "I'm gay" interview just before the 2012 Summer Olympics, saying she felt it was important to do so given the National Team's influence as role models for youth.

Among male athletes, many competitors in sports that rarely get public attention or network television coverage have announced their gay identity to fans en route to Collins' blockbuster announcement. Those who have come out while still actively competing at the pro and/or Olympic level include featherweight boxer Orlando Cruz, gymnast Josh Dixon, figure skater Johnny Weir, bowler Scott Norton, equestrian Robert Dover, and lacrosse player Andrew Goldstein.

Openly transgender athletes at the pro level have been very rare, perhaps because the sex-segregated competition structure in most sports can create unique obstacles for transgender people. However, transgender tennis player Renée Richards made history in 1977 when she won a lawsuit seeking the right to participate in the women's draw of the U.S. Open. Just this year, mixed martial artist Fallon Fox came out as a transgender woman. Several current college athletes have publicly identified themselves as transgender, and a number of governing bodies for college and high school athletics have recently published policies clarifying transgender students' eligibility to participate, hopefully increasing the opportunities transgender people will have to excel at those levels and eventually reach the pros.

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Force-Feeding at Guantánamo Must End, As Should the Injustice Driving the Hunger Strike

Wed, 05/01/2013 - 9:14am

As we have been writing in the past few weeks, the hunger strike in Guantánamo has expanded rapidly. The strike is rooted in the prisoners' despair that the end of their days will come inside a Guantánamo cell, despite the fact that many have long been cleared for release. The situation has gotten so grave that the military says 23 of the at least 100 prisoners on strike are being force-fed. But what exactly is force-feeding? And why has it been rejected as medically unethical?

Dr. Gerald Thomson, former president of the American College of Physicians and member of the Constitution Project's non-partisan Task Force on Detainee Treatment, which recently released a powerful report calling for the closure of Guantánamo, has said:

You know that the Task Force came out very strongly condemning force-feeding and this is in keeping and in line with international ethical standards both of professional treatment of hunger strikers and the ethics of treating hunger strikers. We do not believe that force-feeding should be an approach to the hunger strike. If you can imagine being a detainee and using refusal to eat as a form of protest and then you are forced to eat, forced physically to eat, by being strapped into a specially-made chair and having restraints put on your limbs, your arms, your legs, your body, your head so that you cannot move. Having a tube inserted into your throat that extends into your stomach and you're trying to resist that with the only muscles that are free in your throat. Pain, discomfort, obviously. But in addition to that, food is then forced in a liquid form into your stomach. You're kept in the chair for at least two hours, usually more than two hours, to prevent you from vomiting and undermining the force-feeding. You can't go to the bathroom during that time. Your dignity is taken away.

The World Medical Association and international officials have clearly identified that process as cruel, inhuman and degrading treatment. And given the level of brutality it could extend to torture.

Now since you're refusing food, that's going to happen to you twice a day. Day after day, month and week after week.

You can watch his full remarks here:

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The American Medical Association wrote last week in a letter to Secretary of Defense Chuck Hagel:

[T]he forced feeding of detainees violates core ethical values of the medical profession. Every competent patient has the right to refuse medical intervention, including life-sustaining interventions.

The International Committee of the Red Cross, which has been regularly visiting Guantánamo since early 2002, agrees.

In February 2006, five independent United Nations human rights experts found that the force-feeding used in Guantánamo, essentially the same process used today, amounted to torture as defined in Article 1 of the Convention Against Torture. Later that year, responding in part to force-feeding in Guantánamo, the World Medical Association explicitly stated that "force-feeding contrary to an informed and voluntary refusal is unjustifiable" and "never ethically acceptable." We made just these points to then-Secretary of Defense Robert Gates at the outset of the Obama administration. But the abuse continues.

Samir Naji al Hasan Moqbel, a prisoner in Guantánamo since 2002, who is on hunger strike, described what force-feeding feels like from a prisoner's perspective:

I will never forget the first time they passed the feeding tube up my nose. I can't describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn't. There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone.

Immediate action by the administration may mean an end to the hunger strike. President Obama yesterday renewed his commitment to close Guantánamo and end the indefinite imprisonment of the men held there. As the ACLU, Senate Intelligence Committee Chair Dianne Feinstein, the New York Times editorial board, and others have stated, there are two things the president could do today if he wanted. One is to name a senior point person so that the administration's Guantánamo closure policy is directed by the White House and not by Pentagon bureaucrats. The other is to order the secretary of defense to start certifying prisoners for transfer who have been cleared – more than half the Guantánamo population. (This includes over 50 Yemenis, whose transfer has been blocked by a moratorium imposed after the attempted Christmas Day bombing in 2009. Senator Feinstein, who initially called for the moratorium, and who as head of the Intelligence Committee has access to in-depth information on the situation in Yemen, has now asked for a re-assessment of whether transfers to Yemen can take place).

The president should not stop there, but these are the two essential first steps. Without such action, by all indications, the hunger strike – and unethical, cruel force-feeding – will continue.

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Guantánamo Prisoner's Memoirs Offer Rare First-Person Account of Torture

Tue, 04/30/2013 - 11:31am

A detailed and harrowing first-person narrative of a prisoner's experiences in Guantánamo is available to the public for the first time: Slate today published a three-part series of excerpts from The Guantánamo Memoirs of Mohamedou Ould Slahi. The excerpts were culled from a manuscript hundreds of pages in length, which Slahi provided his attorneys, a pro bono team of ACLU and other lawyers. After being classified for years, Slahi's memoirs – of arrest, rendition, torture, and imprisonment without charge or trial – are finally seeing the light of day, albeit with some redactions.

The excerpts open at the U.S. Bagram Air Base in Afghanistan, shortly before Slahi was sent to Guantánamo in August 2002. He describes the course of what he calls his "endless world tour": After reporting voluntarily to the police in his native Mauritania for questioning in November 2001, he was rendered by the United States to Jordan, where he was imprisoned for eight months; and then taken to the U.S. prison in Bagram for two weeks before his final transfer to Guantánamo.

The U.S. government initially suspected Slahi of involvement in the so-called "Millennium Plot," and later claimed it had evidence linking him to the 9/11 attacks. (Both Canada and his own government had already cleared Slahi of involvement in the Millenium Plot; Jordan found no reason to justify his imprisonment.) In 2010, after reviewing all the evidence, Judge James Robertson of the federal District Court for the District of Columbia ruled that the government could not prove its allegations, and that much of the evidence presented – Slahi's "confessions" – was obtained under severe abuse. He ordered Slahi released. However, the Obama administration appealed and the Court of Appeals for the D.C. Circuit ordered that a new hearing be held. Learn more about Slahi's history and case from from this timeline and this helpful introduction written by Larry Siems, who edited Slahi's manuscript and also authored The Torture Report, an ACLU initiative documenting the Bush administration's torture program.

In the beginning of his story, Slahi describes his relief upon arriving in Cuba because, as he wrote, "I trusted the American justice system... now we are in a U.S.-controlled territory." But in May 2003, the military began, a brutal torture plan called the "Special Project," to break him physically and psychologically. For months, Slahi endured 20+-hour-a-day interrogations, sleep deprivation, physical violence, sexual assault, and other forms of abuse.

He writes:

I was deprived of my comfort items, except for a thin iso-mat and a very thin, small, and worn-out blanket. I was deprived of my books, which I owned. I was deprived of my Quran. I was deprived of my soap. I was deprived of my toothpaste. I was deprived of the roll of toilet paper I had. The cell—better, the box—was cooled down so that I was shaking most of the time. I was forbidden from seeing the light of the day. Every once in a while they gave me rec time at night to keep me from seeing or interacting with any detainees. I was living literally in terror. I don't remember having slept one night quietly; for the next 70 days to come I wouldn't know the sweetness of sleeping. Interrogation for 24 hours, three and sometimes four shifts a day. I rarely got a day off.

Part 1 ends before the "Special Project" comes to a close; it continues in more chilling detail in the second installment. Slahi's chilling descriptions of torture are both difficult to read and impossible to put down. His memoir is a stark personal account of how and why Guantánamo came to be what the New York Times calls an enduring "stain"– on the rule of law, on the United States' human rights record, and on the lives of the men imprisoned there in despair. (Read more here about what's going on today at Guantánamo.)

Slahi's voice—which we can hear only through the memoir—is a distinctive one, and he provides nuanced descriptions of his relationships with his jailors and interrogators, whom he even likens to family. Siems writes in the introduction:

Slahi's writing is much more than a litany of abuses. It is driven by something much deeper: not just the desire to "be fair," as he puts it, but to understand his guards, his interrogators, and his fellow detainees as protagonists in their own right, and to show that even the most dehumanizing situations are composed of individual, and at times harrowingly intimate, human exchanges. The result is an account that is both damning and redeeming.

Read the full ACLU statement here.

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ACLU Statement on President's Guantánamo Comments

Tue, 04/30/2013 - 11:18am

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – At a press briefing today, President Obama restated his belief that the prison at Guantánamo should be closed. Anthony D. Romero, executive director of the American Civil Liberties Union, responded to the president's comments by detailing immediate actions the president could take.

"We welcome the president's continuing commitment to closing Guantánamo and putting an end to the indefinite detention regime there," Romero said. "There are two things the president should do. One is to appoint a senior point person so that the administration's Guantánamo closure policy is directed by the White House and not by Pentagon bureaucrats. The president can also order the secretary of defense to start certifying for transfer detainees who have been cleared, which is more than half the Guantánamo population."

"There's more to be done, but these are the two essential first steps the president can take now to break the Guantánamo logjam," Romero said. "We couldn't agree more with President Obama's statement that the 'idea that we would still maintain forever a group of individuals who have not been tried – that is contrary to who we are, it is contrary to our interests, and it needs to stop.'"

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