What Does the ACLU Say About the Right to March While Armed?

The nation stands alert, anxious about armed actions planned for Jan. 17 and Jan. 20 to contest the election of Joe Biden and Kamala Harris. The FBI has warned of the potential for armed demonstrators targeting legislatures, and extremist groups have made their intentions clear on message boards.

Last week we witnessed an insurrection, with white supremacists storming our nation’s capital, some ready to take whatever actions they thought necessary to ensure their leader remained in power, despite decisive Electoral College and popular votes against him. The insurrectionists killed a police officer, brutally beat news reporters and other police officers, and chanted, “Hang Pence.” The Capitol was breached, leadership were rushed to secret secure locations, congressional offices were stormed, and bombs were planted outside the offices of the Democratic and Republican National Conventions. Many members of Congress and staff and those charged with securing their safety feared for their lives. After a long summer of protesting to affirm to the nation that Black Lives Matter, we saw the Confederate flag on parade in the U.S. Capitol.

As the nation steels itself for the threat of repeat performances across the country, some have asked what states can do to protect their people and representatives. In particular, can weapons be banned at protests? In the ACLU’s view, the answer is yes — so long as the ban is applied neutrally to all, without regard to the viewpoints of a march.

To be clear, what happened at the Capitol on Jan. 6 was not a protest, but a violent insurrection that left five dead and many more injured and endangered. Violence, threats, and intimidation have no place in the exchange of ideas and are not protected by the First Amendment.

But where the issue is a protest and one that is peaceful, can states nonetheless ban protesters from carrying guns? Yes.

The U.S. Supreme Court has held that the Second Amendment protects a right to possess a gun in one’s home, but that right is not absolute. As the Supreme Court stated, it is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Second Amendment permits “reasonable regulations” of arms. Indeed, the court was explicit that nothing in its opinion recognizing a right of individuals to bear arms “should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

We have longstanding laws to keep guns out of sensitive places like government buildings and airports. Visitors can’t bring guns into the U.S. Capitol or the Supreme Court. In other jurisdictions, people can’t bring a gun to polling sites during voting. Police confiscate any weapons that revelers bring to the National Mall on the Fourth of July every year. The rationale for these constraints is clear: Guns create safety risks that the state has a right to regulate. While some regulations of the possession and use of guns raise Second Amendment concerns, a ban on carrying weapons at a protest does not.

The result is the same under the First Amendment. To be sure, openly carrying a gun can send a message, but the government has long had the power to set limits on the time, place, and manner of assemblies. Such restrictions need only be reasonable and content-neutral, meaning that they apply equally to all, regardless of ideology, political affiliation, or message. The government can limit the hours and volume of protests held outside hospitals or schools, for example — as long as the rule applies without regard to the content of the speech.

Similarly, a ban on guns is a reasonable time, place, and manner restriction on a protest — provided that it is applied uniformly to all protests and all protesters. It’s about safety, not expression.

Importantly, barring weapons at a protest doesn’t stop gun owners from speaking about any topic. It doesn’t stop speech in protest of the restriction, nor does it stop speech however odious or hateful. Those who seek to protest Donald Trump’s loss in the November election are free to do so — as long as they do so peacefully. And states and local governments also have the authority to bar weapons at protests.

Our right to speech is about words, not weapons.

Why the ACLU Called for Trump’s Impeachment

This past weekend, the national board of the ACLU convened an emergency meeting to respond to the events at the Capitol building on January 6. After hours of deliberation, the board voted unanimously to call for the impeachment of Donald Trump—for the second time—just days before his term is set to end. The resolution published by the National Board states “President Trump has … violated his oath to preserve, protect, and defend the Constitution, and poses a ‘grave and imminent threat to civil liberties.'” On Monday, Congress followed suit, filing an article of impeachment.

“Impeachment is important even if the president is not removed, because I think what the impeachment does is it provides accountability,” this week’s podcast guest, ACLU President Susan Herman told listeners. “It stands as a record that this president has committed high crimes and misdemeanors.”

Herman, who is the Ruth Bader Ginsberg Professor of Law at Brooklyn Law School, joined us to discuss how the ACLU came to this historic decision, how the impeachment process works, and what it may mean for the future.

The Unspoken Agreement Between Prosecutors and Law Enforcement

Last week’s physical and civic violence at the U.S. Capitol has raised a terrifying set of questions about American democracy, including the potential complicity of law enforcement in insurrection. The president-elect joined the entire freethinking world in noticing that, if Trump’s mob had been Black, it would not have received the same concierge service. But Trump’s coup attempt was not the only law enforcement catastrophe last week: We cannot forget that, two days earlier, Kenosha County, Wisconsin District Attorney Mike Graveley chose not to charge police officer Rusten Shesky for shooting Jacob Blake seven times at close range, in front of his children, paralyzing him for life. 
Last Tuesday, in what was already the prosecutorial equivalent of a Friday news dump — the day of a double-feature Senate runoff and the day before a contested Presidential certification — Graveley announced the non-charges and gave a press conference defending his decision. Graveley’s presentation was a master class in white aloofness and Black victim blaming. Graveley spent slide after slide on Blake’s thin criminal history, implying strongly that this justified his fate. He relied on tired tropes of untamable Black male aggression, including using the fact that Blake dared to remove the taser cables that were electrocuting his body as proof of the need to shoot that body over and over. And in playbook fashion, the good DA urged the Kenosha community to heal at the very moment he was twisting the knife. 
To be fair, Graveley approached this case in a moderately more defensible fashion than most. Back in September, Graveley asked the feds to open a parallel civil rights investigation into the shooting, asserting that Kenoshans “deserved a second opinion.” He also invited the appointment of Noble Wray, a former Milwaukee police chief and self-proclaimed police reform proponent, to serve as an “independent” use-of-force expert. He even exhibited the barest modicum of racial humility, admitting yesterday, “I have never in my life had a moment where I had to contend with explicit or implicit bias based on my race.” 
Our movement for racial justice and law enforcement accountability, which has steadily built steam in recent years, clearly influenced Graveley’s approach to the case. This is a good thing. However, Graveley’s efforts can also fairly be viewed as elaborate hide-covering. The parallel investigations by the DOJ and Wray could not force Graveley to charge these officers, but they sure made it easier for him not to. Wray’s report in particular was the rubberiest of stamps, and a missed opportunity to address not only Shesky’s tactical errors — namely, unnecessarily re-engaging with Blake — but the systemic issues that allowed a man like Shesky to do that with impunity. Graveley cannot take credit for bringing in an outside “reformer” if that person’s report doesn’t say a word about reform.
And Graveley’s concession regarding race is the coldest of comfort. The decision not to charge, buttressed by racialized victim shaming and unaccompanied by any concrete suggestions for reform, makes clear that he still hasn’t meaningfully “contended” with the bias within himself or the law enforcement infrastructure he leads. And for all his words and PowerPoints, he did nothing to heal a battered community — one simultaneously dealing with Kyle Rittenhouse’s not-guilty plea and the white nationalist protests that accompanied it. And he did nothing to ensure that this never happens to them again.
At the end of the day, prosecutors like Graveley depend on the police for leads and testimony, and are typically elected on tough-on-crime platforms. Hence, protecting their friends in blue is almost always the self-interested move for prosecutors, particularly in places like Kenosha. Graveley ultimately caved to that deeply ingrained incentive structure, and no amount of procedural window-dressing can change that.
More broadly, this is yet more proof of America’s debilitating obsession with criminal law as panacea. Consider this: In Breonna Taylor’s case, law enforcement grossly over-enforced a meaningless drug investigation, killing an innocent young woman. In the Nashville bombing case on Christmas morning, police likely under-investigated a dangerous situation, glibly claiming that their failure was only clear in hindsight. In Kenosha, as in countless communities across the country, a district attorney yet again over-protected his police benefactors and under-valued the pain of the Black community. And then, of course, came the grotesque failures in D.C. The common thread: Each time we relied primarily on law enforcement to address a real or perceived societal problem, and each time law enforcement failed. The obvious takeaway should be to stop using law enforcement as the primary solution to so many of our problems. Instead, we need a far more holistic, far less punitive approach to harm reduction than we’re currently employing — one that values public health over incarceration and prevention over post-hoc prosecution. 
In this context that means, at the very least, more stringent use-of-force standards; better understanding of and counterprogramming to anti-democratic extremism, particularly deep online; non-police responses to a wider swath of calls for service; eliminating immunity doctrines to better deter misconduct by both police and prosecutors; and building upon Graveley’s laudable but ultimately insufficient attempts to create independence between those institutional actors, when more foundational reforms are still unable to prevent tragic situations like Jacob Blake’s. And it does not mean creating new criminal laws or expanding investigative powers for law enforcement, even in the wake of tragedy — these would only entrench the prosecution-forward approach that allowed these disasters in the first place.
This rethinking of our national approach to justice won’t eliminate all criminal activity overnight. The criminal law will and should persist. But if we can’t right-size and refocus it on true public health and public safety, we’re doomed to continue watching prosecutors and police serve and protect each other instead of us.

The Supreme Court let the Trump administration endanger abortion patients during a pandemic. The Biden-Harris Administration can fix it right away.

In its first decision on abortion since Justice Barrett’s confirmation, the Supreme Court granted the Trump administration’s request to reinstate a harmful FDA requirement that forces patients to risk unnecessary COVID-19 exposure as a condition of accessing mifepristone, a safe and effective medication used to end early pregnancies and treat early miscarriages. As a result, even as COVID-19 infection and death rates soar across the nation, patients are again required to travel in person to a health center for no medical reason — just to pick up a pill and sign a form.
Since the summer, this harmful requirement had been blocked by a federal court — meaning that for months, eligible patients were able to receive their medication by mail without making an unnecessary in-person trip. And health care professionals were able to safely provide quality care to their patients during the pandemic, as they do with other medications.  As one health care provider shared,

“[A] patient called who was so ill from her pregnancy that she had not slept or eaten in 5 days and said she was ‘going out of her mind.’ Due to our reduced capacity for in-person visits during the pandemic, the first available in-person medication abortion appointment was not for another 5 days. In addition, coming to the health center for her appointment would have been very risky for this patient: she had significant risk factors for severe disease from COVID-19. … She told me she was so afraid of contracting COVID- 19 that she had quit her job … to avoid viral exposure and had been isolating at home ever since. She was thrilled to learn of the delivery option. She was extremely grateful that she could have her telehealth visit on that same day, have her medication sent for delivery the next day instead of having to wait to come in person, and avoid the risk of exposure to the coronavirus as she traveled to our clinic to pick up the medication.”

Now, all of that is over. 

With the court’s ruling, the Trump administration is once again free to subject patients seeking abortion and miscarriage care to a one-size-fits-all travel mandate that exposes them and their families to needless viral risk — even though similar in-person requirements have been suspended for other far less safe medications, like opioids, during the public health emergency. Despite the clear scientific and public health consensus that unnecessary in-person visits for medical care should be avoided during the pandemic, the administration has ignored repeated calls by leading medical and public health authorities to do the same for mifepristone — which has an excellent 20 year safety record — endangering patients in service of its anti-abortion agenda. 

As the U.S. approaches 400,000 COVID deaths, this is nothing short of unconscionable. And the Supreme Court’s ruling is particularly dangerous for people of color and people with low incomes, who have always been most harmed by burdensome restrictions on medication abortion, and who are now suffering severe complications and dying from COVID-19 at disproportionately high rates. For those who rely on public transportation or help from others to travel, as many people with low incomes do, making an in-person trip is particularly risky.  There is no excuse for such government-mandated harm.

Luckily, the Biden-Harris administration can quickly reverse this dangerous course. 

The new administration should immediately suspend enforcement of the in-person requirement for the duration of the pandemic, consistent with the government’s approach to other medications. President-elect Biden has pledged that his administration will follow the science in its response to COVID-19, and this is a critical part of that commitment. Abortion is essential, time-sensitive health care, and no one should have to risk needless exposure to a life-threatening virus to access it.

In addition, the FDA should conduct a comprehensive review of all current restrictions on mifepristone. The in-person requirement is part of a package of outdated, medically unnecessary restrictions on this safe, effective medication that is long overdue for an FDA review. Well before the pandemic, leading medical authorities were already calling for permanently lifting these restrictions because they have no medical basis and provide no benefit to patients — all they do is create barriers to care. It is time the FDA listen to those experts and re-evaluate the restrictions on mifepristone so that patients’ access to safe medication abortion is always based on the latest evidence.

The Supreme Court’s latest decision is cruel and indefensible — but, fortunately, fixable.  Now it’s up to the Biden-Harris administration to ensure that science, not politics, determines patient access to this time-sensitive, essential care — both during the COVID-19 public health emergency and beyond.

Tenants’ Right to Counsel is Critical to Fight Mass Evictions and Advance Race Equity During the Pandemic and Beyond

As the COVID-19 pandemic stretches on and worsens, people across the country face the devastation left in its wake. The public health and economic consequences of the pandemic have cost millions of people their jobs and the ability to pay rent — leaving far too many renters facing the added threat of eviction and losing their homes.

The patchwork of responses has yet to slow down the eviction crisis thus far. Congress first responded through the CARES Act by putting a halt on evictions with a moratorium for a fraction of tenants across the country, but this expired in July 2020. In September, the Centers for Disease Control and Prevention adopted another moratorium protecting more renters until the new year. Congress then extended that moratorium for one month. Despite this, heading into January, up to 14 million households were at risk of eviction, and the rental assistance provided by Congress in the stimulus bill will reach some too late and others not at all. And come Jan. 31, 2021, the federal moratorium — as well as many of the remaining local and state moratoria on evictions — is set to expire. This will leave millions of families and communities unprotected from the threat of eviction.

Once these tenant protections end, landlords will not hesitate to pursue mass evictions. Data from the Eviction Lab shows that landlords have filed evictions in droves the moment federal, state, and local moratoria have ended, and in some jurisdictions, eviction filings are actually increasing despite the moratoria that are still in place. 

Eviction court proceedings are skewed to favor landlords and evict people from their homes.

Eviction proceedings historically have been unfair and imbalanced. In the courts, the odds are stacked against tenants: 90 percent of landlords are represented by legal counsel in evictions, but fewer than 10 percent of tenants have representation. 

This isn’t surprising considering many tenants are facing eviction because of unforeseen circumstances or financial stress that prevents them from being able to afford their rent, let alone counsel. Others lack the ability to go to court due to employment, child care, or transportation restrictions. On top of this, tenants have few options for legal aid and legal services programs, and legal aid has always been underfunded. Any defenses that are available to a tenant are virtually impossible to prove without a lawyer. As a result, tenants default at high rates, and landlords count on this imbalance to file meritless eviction cases. This systematically sets up tenants to fail, forcing them to leave their homes and leaving them to deal with the devastating, long-lasting impacts of eviction. 

Black tenants — especially Black women — disproportionately face the threat of eviction. 

Due to decades of inequalities in our housing system, communities of color and low-income women feel the impacts of eviction the most — Black women in particular. Black women are more than twice as likely to have evictions filed against them as white people. Less than half of Black and Latinx families own their homes compared to 73 percent of white families. Black and Latinx tenants are also twice as likely as white tenants to report that they have little to no ability to make rent each month. Longstanding systemic income and wealth inequality also put communities of color and women at higher risk of eviction

The harms of eviction also run deep — having an eviction on your record results in blacklisting, as many landlords will not even consider an applicant with a prior eviction filing, even if they won the case. Eviction records follow people for years, stigmatizing already vulnerable groups and blocking them from housing opportunities.

Securing tenants’ right to counsel is key to fighting mass evictions.

Securing tenants’ right to counsel is one way federal and state governments can take action to stop this impending mass wave of evictions and keep people in their homes during the pandemic and beyond. Right to counsel measures ensure that tenants who are facing the complex process of an eviction proceeding are guaranteed legal representation — giving tenants a fair chance to access legal protections and stay in their homes. Additionally, tenant attorneys can help tenants apply for rental assistance, ensure that courts do not proceed while such applications are pending, and address situations where landlords refuse to accept the rental assistance.

Right to counsel measures for tenants in eviction proceedings have been enacted in seven cities to date: New York City, San Francisco, Newark, N.J., Cleveland, Philadelphia, Boulder, Colo. and Baltimore. And these measures actually work. 86 percent of tenants who had representation as a result of New York City’s right to counsel legislation were able to remain in their homes. In San Francisco, the eviction filing rate decreased by 10 percent between 2018 and 2019, and of those receiving full representation, 67 percent stayed in their homes. Providing a right to counsel allows people and families to keep their homes and communities, and in the time of a pandemic, promotes public health. 

Federal and state governments need to take action to protect tenants from mass evictions. 

With the federal eviction moratorium set to end on Jan. 31 and no additional federal emergency rent relief in sight, it is paramount for Congress, states, and cities to act — and supporting right to counsel measures must be key to addressing mass evictions. The emergency package that passed Congress and was signed into law on Dec. 28 fell far short, extending the moratorium only until the end of January, providing a fraction of what is needed in rent relief, and allocating only $20 million in total for tenant representation while failing to explicitly address right to counsel. The ACLU and National Coalition for a Civil Right to Counsel call on the federal government to provide funding support for cities and states that implement a right to counsel for tenants in eviction proceedings, as well as to implement a fully effective moratorium on evictions and additional rental assistance for tenants. 

We need meaningful action to stop mass evictions during the pandemic and beyond. All people — regardless of their circumstances or background — should have access to safe and stable housing.

Biden Must Restore and Rebuild Asylum

The United States has made a commitment — by law and by treaty — to protect people who come to this country fleeing persecution. But the Trump administration relentlessly attacked people seeking protection and the very concept of asylum. It is now nearly impossible for anyone to secure asylum, no matter how strong their claim or fear. President-elect Biden has the opportunity to restore our asylum system, as he has promised to do. Unwinding Trump’s harmful and unlawful policies will be just the start to making our system more efficient, fair, and humane. A reversal is simply not enough — we must build our asylum system back better.    

The asylum system Trump unilaterally destroyed was in place since 1980 when Congress passed the bipartisan Refugee Act, enshrining in federal law the nation’s international commitment to provide safety for people fleeing danger. These laws allow anyone who has been persecuted because of their race, religion, nationality, political opinion, or membership in a particular social group to request asylum, which if granted allows them to live and work in the U.S. and get on a path to citizenship. Under our current law, individuals who arrive at the border and express a fear of returning to their home countries are either placed directly in a process to decide their asylum claims or screened further to determine if they could ultimately be granted asylum. If they pass, they are placed in the asylum process. Either way, they wait in the U.S. while a judge decides their case. 

After Trump, this system is in shambles. People seeking asylum confront an alphabet soup of new anti-immigrant policies that ensure no one gets a fair shake. Biden must work swiftly to end these harmful policies and restore our asylum system. First, he must end the disingenuously named “Migrant Protection Protocols” or MPP, under which people seeking refuge are forcibly sent to Mexico, where they languish in dangerous conditions sometimes for more than a year. Refugee camps in Mexico are now filled with people sent there by the U.S. with no consideration of their asylum claims. Many of these individuals and families have experienced violence, extortion, and kidnapping, and some have even been killed. The entire concept of asylum is that it is an urgent request — that coming to the U.S. is critical to one’s safety — so being forced to remain in danger indefinitely is contrary to asylum’s core purpose.

Among those trapped in Mexico are the ACLU’s clients in Nora v. Wolf, who have been forced to wait indefinitely in Tamaulipas, one of the most violent and lawless areas in the world. One family was kidnapped twice; the mother and her eldest daughter were gang raped over a period of days by cartel members. And despite the egregious harms they’ve suffered, the Trump administration refused to let them wait for their asylum hearing in the U.S. Biden must end MPP immediately and ensure that the people subjected to the policy are able to pursue their claims in the U.S.

Second, Biden must rescind the “Title 42” order — CDC’s regulations and orders that permit hasty expulsion of asylum seekers and unaccompanied children, unlawfully denying them any chance to seek humanitarian relief like asylum. Under Title 42, young teenagers like J.B.B.C., who witnessed a murder in Honduras and fled after gang members threatened him, are summarily sent back to danger. The three federal judges who have examined the Title 42 order all agree that it is illegal. And although the Trump administration tried to cloak the order in public health justifications, numerous public health experts denounced the policy and explained why it does not protect this country’s health. CDC’s own experts reportedly objected to the policy and refused to support it in court; it was implemented only after the White House pressured the CDC to accept it. As public health experts have explained, the government has the means to safely process people seeking protection while safeguarding the health of U.S. residents.

Third, President-elect Biden must act quickly to end Trump’s two illegal asylum bans. The first bans anyone who entered the U.S. between ports of entry, even though U.S. laws state that it does not matter how a person enters if they are fleeing danger. The second bans anyone who travels through a third country to reach the U.S., unless they first apply for and are denied asylum in a third country — impacting nearly every non-Mexican asylum seeker. It is a naked attempt to deny as many people as possible, regardless of their need for protection under our laws. While the ACLU and partners quickly blocked the first asylum ban, the second ban had disastrous consequences for people seeking asylum before a judge vacated it in June 2020. But, the Trump administration has doubled down, issuing a new version of the second ban at the eleventh hour that takes effect just a day before inauguration. Biden must quickly rescind both bans.

These are just the tip of the iceberg. There are numerous disastrous anti-asylum policies that Biden must promptly stop, including:

  • Trump’s “Asylum Cooperative Agreements” (ACA) with Guatemala, Honduras, and El Salvador and the related policies that force people to seek asylum in those countries instead of in the U.S. These ACA policies not only violate our laws, but they are also in bad faith, as thousands of people in those countries are fleeing persecution there as well. Biden must terminate the deceitful ACAs and rescind the related policies that allow people to be deported to other countries without regard to their safety. 
  • PACR/HARP, Trump policies that hold asylum seekers in crowded, unsanitary Border Patrol facilities that unlawfully block access to lawyers during their initial screening interview, depriving people of basic due process and a fair chance at asylum. Indeed, it is unsurprising that people held under such inhumane conditions are far less likely than other asylum seekers to pass their screening interviews. Biden should put a stop to these harmful programs and ensure everyone can access their attorneys.
  • The massive new asylum rule issued in December that upends nearly every aspect of asylum law, including longstanding “political opinion,” “particular social group,” and “persecution” definitions, as well as other core elements of asylum eligibility and the legal process. It is designed to block most people seeking protection. Biden should work diligently to rescind this disastrous rule and restore our longstanding asylum standards.

Biden does not have an easy task ahead of him — in fact, there are already trumped up warnings of border “surges” in an effort to make reinstituting our asylum system politically harder. It will take courage, diligence, a commitment to protecting people in danger as our laws allow, and respect and deference to experts in asylum who have been dealing with the consequences of Trump’s policies for four years. Biden has promised these solutions already; it is all of our jobs to make sure he follows through. 

As Sheriffs Quit ICE, Joe Biden Can Lead the Way in Restoring Trust

This month, two newly-elected sheriffs canceled contracts with Immigration and Customs Enforcement (ICE). The sheriffs in Gwinnett County, Georgia and Charleston County, South Carolina were elected in November in part due to their campaign pledges to stop doing ICE’s bidding under a program known as 287(g). Voters in Cobb County, Georgia, also replaced a sheriff who conspired with ICE with an opponent of the 287(g) program.

These election results came after a multiracial coalition of organizations worked to build community power, elevate the voices of immigrants, and publicize the harms of a program that leads to civil rights violations, including racial profiling, and puts immigrant families at risk.

The 287(g) program compels local law enforcement agencies to conduct federal immigration enforcement, including interrogating people in jails about their immigration status and initiating the deportation process. But all too often it ends up  creating a chilling effect that dissuades immigrants from reporting crimes, seeking protection, or serving as witnesses for fear that the very agencies meant to protect them may instead try to deport them.

Law enforcement agencies with 287(g) agreements waste millions of local tax dollars on federal enforcement all while undercutting their safety mission by destroying community-law enforcement relationships and diverting attention from local priorities. As Mecklenburg County, North Carolina, Sheriff Garry McFadden noted when he ended the county’s agreement, 287(g) “erodes trust with our community and ties up critical resources that should be used to ensure public safety,” and Charleston County Sheriff Kristin Graziano criticized the program as “legal racial profiling.”

The program has created a climate of fear, as immigrants who live in 287(g) jurisdictions could end up in deportation proceedings for such “offenses” as failing to yield while turning or eating lunch outdoors. Many residents also report that they have been profiled while driving because of their race or appearance, pulled over by police pretextually — for traffic violations or no reason at all — so that police can question their immigration status.

All too often, they are left in the custody of sheriffs with egregious track records. Gwinnett County, which had the most active 287(g) program in the country, had to pay millions in settlements after a pattern of sheriff deputies wantonly assaulting detained people was revealed. The previous sheriff of Cobb County, who was the first in Georgia to sign a 287(g) agreement, oversaw over 50 jail deaths while in office; meanwhile, the former sheriff of Charleston County, the largest county in South Carolina to have a 287(g) agreement, was once arrested for assaulting a detained individual.

Sheriffs rarely face election challengers, but these sheriffs or their hand-picked successors all lost running on a pro-ICE platform, with voters resoundingly rejecting their anti-immigrant policies. Other jurisdictions that ended their contracts in recent years include Mecklenburg and Wake counties, North Carolina; Las Vegas, Nevada; Harris County, Texas; Anne Arundel County, Maryland; and Prince William County, Virginia.

While this program preceded Donald Trump, it exploded under his leadership, as former Attorneys General Bill Barr and Jeff Sessions and Trump himself pressured sheriffs to join. The Trump administration even made these contracts worse by removing expiration dates and other guardrails and dropping civil rights investigations into local law enforcement agencies, looking the other way in instances of abuse or, in Trump’s case, outright encouraging brutality. Other sheriffs, including those who said they oppose working with ICE, believed that state laws such as Florida’s SB 168 forced them to sign ICE agreements against their better judgement.

These agreements are not the only ways localities force immigrants into the deportation system, as many honor ICE detainers, or requests that local jails prolong a person’s detention past their scheduled release date so they can be detained by ICE, without a 287(g) agreement in place.

As President-elect Biden takes office, he can move to protect civil rights, public safety, and the country’s moral fabric by fulfilling his pledge to “end all” the 287(g) agreements entered into by the Trump administration and rolling back harmful immigration practices, including the use of detainers.

Termination of the program would also align with Vice President-elect Kamala Harris’ belief that 287(g) agreements weaken “trust between law enforcement and those they serve” and her vows to “end this program.” As California Attorney General, she also urged local agencies not to honor ICE detainers, noting that as a district attorney she worked with undocumented victims of crime who feared “they would be treated as the criminal” if they went to the police for help.

The immigrant detention and deportation machine, fueled by 287(g) agreements, has destroyed families, ruined lives, and worsened the COVID-19 pandemic. President-elect Biden should listen to the communities, advocates, and law enforcement officials who believe that 287(g) undermines our safety and our values and make good on his pledge to bring the program to its end.

We Can Uphold Free Speech and Hold President Trump Accountable

Some dyed in the wool civil libertarians have criticized the ACLU for supporting Donald Trump’s impeachment. These critics maintain that our commitment to the First Amendment should solely trigger a defense of the president’s “free speech.” But freedom of speech poses no bar to holding a president responsible for his unfounded, bad-faith effort to subvert the results of a free and fair election.

Our board — comprised of leading lawyers and activists from every state and the District of Columbia — is a thoughtful, deliberative body of committed civil libertarians. After meetings on both Saturday and Sunday, the ACLU board unanimously passed a resolution again calling for President Trump’s impeachment, which can be found here.

We discussed at length the free speech implications of this impeachment process. We concluded that President Trump’s remarks on Jan. 6 can be considered part of a pattern of efforts to upend an election he lost. If a president’s repeated lies, illegal political pressure, and the stoking of a mob to subvert the democratic process are not an abuse of power warranting impeachment, it is difficult to know what would be.

Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this. It does not single out Trump’s speech on Jan. 6 inciting a mob, but rather identifies it as part of a pattern of “efforts to subvert and obstruct the certification results of the 2020 presidential election,” including the improper pressure placed on Georgia Secretary of State Brad Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results and threatened Mr. Raffensperger if he failed to do so.”

The ACLU believes a president can be impeached for speech that a private citizen could not be prosecuted for.

First, proceedings to impeach and remove a president are not criminal proceedings. They specifically seek to remove the president from office. While the First Amendment would likely bar the criminal conviction of a private citizen for the president’s Jan. 6 speech, impeachment is a political remedy: to remove an executive official who has abused his office, not to convict them of a criminal offense. The Supreme Court has long held that public employees can be fired for on-the-job speech that would be fully protected from criminal prosecution. Whether the president has any First Amendment rights when speaking in his capacity as president has never been established. At a minimum, because of his role and authority, the president does not have the same freedom of speech as an ordinary citizen.

The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity. As a matter of law, public employees are regularly sanctioned for speech that fosters a hostile work environment. Their public position imbues their speech with more influence than the average citizen — as the saying goes, with great power comes great responsibility. It follows that President Trump doesn’t have unfettered free speech rights to subvert the results of a fair and free election. In short, a president who recklessly urged his followers to violate the law could be impeached even if an ordinary citizen could not be convicted for the same words, absent proof that his speech was intended and likely to produce imminent lawless action.

Second, impeachment proceedings do not require conviction of a crime, but a determination by the House and Senate that the president has abused his office in such a serious manner that he should be removed. “High crimes and misdemeanors” don’t have to be actual crimes or misdemeanors, and surely recklessly urging an unruly mob to intimidate members of Congress performing their constitutional duties, in order to undercut the results of a free and fair election, is sufficient.

No organization or individual has more consistently stood up for the free speech rights of individuals than the ACLU. From our defense of labor activists’ speech in the 1920s and 1930s, to Skokie, to Charlottesville, to our defense of BLM protesters, to the student free speech case the Supreme Court agreed to hear just last week, my organization steadfastly defends the First Amendment rights of individuals, no matter the popularity of their speech.

Part of that legacy is our landmark Supreme Court case, Brandenburg v. Ohio, which established First Amendment protections in the context of criminal prosecution for incitement of violence. That case ruled that even explicit advocacy of criminal activity is protected unless the individual’s speech is intended and likely to produce imminent lawless action. As proud (and protective) as we are of our Brandenburg precedent, we don’t believe that case should stand in the way of impeaching Donald Trump.

This civil libertarian can sleep well at night knowing that the First Amendment can be preserved, and Donald Trump can be impeached. In these hyper-partisan times, it is no surprise that leading critics of the ACLU might wish to deride us for allegedly sacrificing our commitment to the First Amendment in favor of punching down at an increasingly unpopular president. But as is reflected in our board’s thoughtful second call for Trump’s impeachment, our allegiance has always been, and remains, with the Constitution.

I also sleep soundly because I fundamentally believe that our society is finally grappling with complicated issues of race, rights, and freedoms that it long overlooked or took for granted. Recent debates about Twitter’s barring of Trump permanently, the racially disparate treatment of BLM protestors and white supremacist insurrectionists by law enforcement, and the impeachment of President Trump have led to a soul-searching debate that will make this country better and stronger in the long run. Indeed, Donald Trump’s most lasting legacy may be that he catalyzed a “resistance” movement that will transform into a deeper commitment to social justice and constitutional norms. It is this invigorated movement that will shape the work of the next administration.

Good night and good bye, President Trump.

For Muslims, Even Prayers Aren’t Private

We generate droves of personal data every time we use the apps on our phones, make a call, or make an online purchase. While we might hope that our data is kept private, hidden away from people or entities that may want to surveil our usage or capitalize on these private choices, it often isn’t.

In November, news reports revealed that the federal government had purchased location data mined from apps used by Muslims. One of those apps is Muslim Pro, a GPS-reliant app that signals prayer times to its users, which has been downloaded by millions. It’s not yet clear exactly how the data is being used, but many users of the app have already reported deleting it to avoid being surveilled.

“I think I was both shocked and not surprised at the same time,” NowThis journalist Aliya Karim told At Liberty of the moment she learned about the data sale. “Shocked because something as personal as a prayer app kind of felt like it should have been safe from this type of intrusion. But then on the other hand, I wasn’t surprised because it feels like we Muslims are being watched by the government all the time anyway.”

Karim joined At Liberty alongside Tarek Ismail, a senior staff attorney at the CUNY School of Law’s Creating Law Enforcement Accountability and Responsibility (CLEAR) Project. Listen as they discuss the repercussions of this breach of privacy, and what steps organizations like CLEAR and the ACLU are taking to keep private data safe and hold the government accountable.

Requiring Men but not Women to Register for the Draft is Sex Discrimination

The requirement that only men — but not women — register for the draft is one of the last examples of overt sex discrimination written into our federal law. Today, we joined two young men and the National Coalition For Men (NCFM) to urge the U.S. Supreme Court to put an end to it.
Under the 1948 Military Selective Service Act, men in this country are required to mark their 18th birthdays by registering for the Selective Service System, the list of people who could be called up for military service if the government authorized a draft. Although there hasn’t been a draft since 1973, young men are still required to register or they may face severe penalties.
As long as the government requires young people to register for the draft, requiring men but not women to do so is sex discrimination. That’s why we’re asking the Supreme Court to declare men-only registration unconstitutional.
The ACLU joined two young men and the NCFM, who initially brought a challenge to men-only registration in 2013, to help bring their case to the Supreme Court. Representing an organization called the “National Coalition For Men” may seem like an unlikely way to advance women’s rights, and to be clear, the ACLU firmly opposes some of NCFM’s positions and activities. In this case, however, we share the common goal of ending an antiquated federal law that harms both men and women. And if the Supreme Court agrees, it could be one of the most significant constitutional advances in sex discrimination law in 25 years.

Like many laws that appear to benefit women, men-only registration actually impedes women’s full participation in civic life. Limiting registration to men sends a message that women are unqualified to serve in the military, regardless of individual capabilities and preferences. It reflects an outmoded view that, in the event of a draft, women’s primary duty would be to the home front — and, on the flip side, that men are unqualified to be caregivers. The Military Selective Service Act not only perpetuates these stereotypes, it enshrines them in federal law.
Limiting draft registration to men also devalues the contributions of women who serve in the military. That’s why military women’s organizations like the Service Women’s Action Network support extending registration to women. National experts agree: A congressional commission formed to study the Selective Service System recommended that Congress update the Military Selective Service Act to allow women to be registered, too, and the Department of Defense has advised Congress that doing so would promote military preparedness — as well as fairness.
But, to be clear, this case isn’t about whether women should ultimately be required to register alongside men. If the Supreme Court declares men-only registration unconstitutional, it would be up to Congress to choose an appropriate path by extending registration to everyone regardless of gender or eliminating registration for anyone. What Congress may not do is design a registration system that discriminates on the basis of sex.
Men-only registration was first challenged more than 40 years ago, when several young people — represented by the ACLU — asked the Supreme Court to strike the Military Selective Service Act as unconstitutional sex discrimination. But the Supreme Court upheld the law in Rostker v. Goldberg. The Supreme Court reasoned that Congress could choose to require only men to register since the draft was aimed at replacing combat troops, and military women at that time were categorically ineligible to serve in combat roles. In other words, instead of examining whether the ban on women in combat was itself discriminatory, the court relied on one form of sex discrimination to justify another — and let both forms of discrimination stand. 
In 2012, the ACLU filed a lawsuit challenging the ban on women in combat, one of two cases that led the Department of Defense to lift the ban. Now that women are eligible to serve in combat roles, the sole justification for men-only registration has evaporated into thin air. It’s time for the Supreme Court to revisit — and overturn — its previous decision and end this antiquated law.
Justice Thurgood Marshall, the first civil rights lawyer to sit on the Supreme Court bench, called men-only registration “one of the most potent remaining expressions of ancient canards about the proper role of women.” That was in 1981. It’s long past time for the Supreme Court to call men-only registration what it is: unlawful sex discrimination.

Clearview’s Dangerous Misreading of the First Amendment Could Spell the End of Privacy Laws

Secretly, and without consent, a company called Clearview AI has captured billions of faceprints from people’s online photos, amassing what it claims to be the world’s largest face recognition database. Much like our fingerprints and DNA profiles, our faceprints rely on permanent, unique facts about our bodies — like the distance between our eyes and noses or the shape of our cheekbones — to identify us.

Using our faceprints, Clearview offers its customers the ability to secretly target and identify any of us, and then to track us — whether we’re going to a protest, a religious service, a doctor, or all of the above — and even to reach back in time to find us in old selfies, school and college photos, and videos. In other words, it might end privacy as we know it. It also threatens our security and puts us at greater risk of identity theft by maintaining a massive biometric database, akin to a secret warehouse of housekeys.

Clearview’s nonconsensual capture of our faceprints is dangerous. It is also illegal in at least one state.

In May of last year, we sued Clearview for violating Illinois’ Biometric Information Privacy Act (BIPA), a state law that prohibits capturing individuals’ biometric identifiers, like face and fingerprints, without notice and consent. We represent a group of organizations whose members and service recipients stand to suffer particularly acute harms from nonconsensual faceprinting and surveillance: survivors of domestic violence and sexual assault, undocumented immigrants, current and former sex workers, and individuals who regularly exercise their constitutional rights to protest and access reproductive health care services.

Notwithstanding these harms, Clearview asked the court to dismiss our case, arguing, in part, that the company has a First Amendment right to capture our faceprints without our consent.

As advocates for both free speech and privacy, we take this objection seriously — and we strongly disagree. As we explained to the court previously and again this week, Clearview’s view is at odds with long-established First Amendment doctrine, and could spell the end of privacy and information security laws if accepted.

Clearview argues that, to create its face recognition product, it gathers publicly-available photographs from across the internet and then uses them to run a search engine that simply expresses Clearview’s opinion about who appears to be in the photos. Clearview claims that, like a search engine, it has a First Amendment right to disseminate information that is already available online.

But our lawsuit doesn’t challenge — and BIPA doesn’t prohibit — Clearview’s gathering or republishing photographs from across the internet, or expressing its views about who appears in those photos. Clearview is free to discuss or disseminate photographs it finds online. What it can’t do under Illinois law is capture people’s faceprints from those photographs without notice and consent. That is a distinct action, which can cause grave harms.

Accepting Clearview’s argument to the contrary would mean agreeing that collecting fingerprints from public places, generating DNA profiles from skin cells shed in public, or deciphering a private password from asterisks shown on a public login screen are all fully protected speech. And it would depart from decades of judicial precedent permitting laws banning wiretapping, stealing documents, or breaking into a home — all acts that become legal if done with consent — even when that conduct might generate or capture newsworthy information. In other words, the fact that a burglar intends to publish documents they steal doesn’t mean the burglary is protected by the First Amendment. Likewise, the fact that Clearview intends to disseminate people’s photos after capturing faceprints from them doesn’t mean the company has a constitutional right to capture the faceprints without consent.

At the same time, BIPA does have an incidental effect on the speech Clearview seeks to engage in after capturing a faceprint, and so the law is subject to some First Amendment scrutiny. In United States v. O’Brien, the Supreme Court explained that regulations of conduct that have an incidental effect on speech are subject to so-called “intermediate scrutiny.” That means that the First Amendment is satisfied as long as (1) the government has the power to enact the regulation in the first place, and (2) the regulation furthers an important government interest that (3) isn’t related to suppressing free expression, and (4) burdens speech no more than it necessary to further the government’s interest.

BIPA — and its application to Clearview in our lawsuit — satisfies that test.

First, Illinois has the power to pass a law like BIPA, which is designed to protect its residents against irreparable privacy harms and identity theft.
Second, BIPA’s notice-and-consent requirement furthers the state’s substantial interests in privacy and security. Our faceprints can be used to track us across physical locations, photographs, and videos, painting a complete picture of our lives and associations. This threat of surveillance also chills our speech. And, because biometric identifiers are often used to enable access to secure locations and information — like the face recognition feature on our phones or the fingerprint scan to enter our offices — the capture of our faceprints without our notice and consent poses security risks.

These dangers aren’t hypothetical. In recent months, government actors have relied on faceprint technology to identify and track protesters in cities and on college campuses, and such technology has resulted in at least two false arrests in Michigan and at least one in New Jersey. Clearview AI has contemplated providing its technology to a “pro-white” Republican candidate to conduct “extreme opposition research,” and it has given access to more than 200 companies, as well as celebrities and wealthy businesspeople, to use as they would like, including to identify who their children are dating. Recently, it entered into a contract with Immigration and Customs Enforcement. And, in the last year, it suffered a data breach (though thankfully not of its faceprint database).

Third, Illinois’ interest in BIPA’s notice-and-consent requirement is not about silencing or limiting speech. BIPA does not prevent anyone, including Clearview, from discussing the topic of identity or from expressing an opinion about who appears to be in a photograph, regardless of what that opinion may be. Indeed, even if Clearview didn’t speak at all, and simply captured faceprints that it kept in a massive, insecure database, it would violate BIPA. BIPA is not a regulation of speech.

Finally, BIPA’s notice-and-consent requirement is sufficiently tailored to Illinois’ substantial interests in protecting privacy, security, and speech. The problem BIPA seeks to solve is individuals’ lack of knowledge about and control over the capture of their biometric identifiers — and requiring notice and consent perfectly solves it. At the same time, the law doesn’t restrict more speech than necessary because it doesn’t ban the use of faceprints; it simply requires consent first.  

If Clearview’s position prevails, states will be powerless to enact protections against violations of privacy that involve data. But that is a dangerous misreading of the First Amendment. Reasonable notice-and-consent laws governing conduct, like BIPA, simply do not violate the First Amendment.

Pamela Winn Fights the Shackling of Pregnant People

Pamela Winn was sent to federal prison when she was six weeks pregnant. In prison, she fell down attempting to step into a van while shackled. She was not given prenatal care and she miscarried a little over three months later, shackled to a prison bed.
Winn, who was released from prison in 2013, is now an activist for the rights of incarcerated women. She helped enact a law to prevent the shackling of pregnant people in Georgia and is leading a mission to end prison birth altogether 
But her story is not unique. There are currently thousands of pregnant people in prison. Many are not given proper medical attention, some are shackled even while giving birth, others miscarry — some have even birthed their children, alone in a cell.

In Her Words, This is Pamela’s Story

(Excerpt from Pamela Winn’s written testimony response to the U.S. Commission on Civil Rights Briefing: “Women in Prison: Seeking Justice Behind Bars” — February 22, 2019)

My name is Pamela Winn. As a registered nurse, I practiced women’s health care more than 10 years where I specialized in obstetric gynecology, perinatal case management, perioperative surgery, and gynecologic oncology. I am the founder and executive director of RestoreHER US.America, a Southern regional policy advocacy reentry organization, led by formerly incarcerated women.

I was sentenced to serve 78 months at a federal prison for a white-collar crime when I was six weeks pregnant. Anytime I had to be transported, I was shackled. Shackling included being chained at my ankles with another chain around my belly that bound my hands in front of my waist with a black box.

While shackled, attempting to step up into a van, I fell. A couple days later I begin spotting with streaks of blood, which I reported to the medical staff for approximately two weeks with no response. The initial reply I finally received was that bleeding was normal with pregnancy. Then they informed me that the prison was structured for men and had literally “no” means of caring for me and would have to get approval from the U.S. Marshals to take me to the emergency room.

The turnaround time for the request and approval ended up being four weeks. At that point, it was no longer an “emergency,” so I was turned away and unable to be treated at the emergency room. The ER physician recommended an obstetrician but was told by the transporting officers that I was only approved for an emergency room visit. I then required a second approval for an obstetrician, which took four more weeks. The obstetrician would need an ultrasound which was not performed on site, therefore requiring a third approval. Once I received the ultrasound, follow-up was required, and a fourth approval was requested. I ended up miscarrying at approximately 20 weeks without any formal or proper prenatal care.

To add insult to injury, I was assigned to a cell on a second floor and my request to be moved fell upon deaf ears causing me to have to climb steps daily. There was a fountain that provided brown water. I protested to the warden, who agreed to provide me with ice daily which did not occur.

When I was miscarrying, I lay wet in blood, locked in a dark cell, curled up in excruciating pain until an officer made rounds roughly five hours later because there was no emergency call button or any way to notify anyone of my situation. I suffered the entire miscarriage shackled to the bed with two male officers between my legs. I was dehumanized with no privacy. When the nurse stated I had passed the fetus and asked for the linen that I had soiled, she was told the officers that the linen which contained my unborn child had been thrown in the trash. In my case it was I had no counseling, nor any opportunity to grieve my miscarriage.

I entered the criminal justice system a healthy single mother of two sons, not ever experiencing any health issues or serious illnesses. I was a registered nurse who had achieved three secondary degrees. I was homeowner and a successful business entrepreneur, the first in my family. After six years, I was released diagnosed with high blood pressure related to my continuous physical stress along with a high sodium diet and depression caused by emotional distress. The additional stress of having my professional license revoked; the challenges of securing employment and stable housing; lacking health insurance, little to no finances, the additional restrictions that come with being a convicted felon, as well as a woman compounded my state of health.

Pamela’s story highlights the harsh reality of thousands of women behind bars. There are no standards of care for incarcerated pregnant people and most return home in worse conditions than when they entered. In the U.S., there are an estimated 58,000 pregnant people admitted to jails and prisons each year. Many of them are forced to face intolerable conditions during pregnancy and birth and then lose their babies sometimes after only hours postpartum.

Pamela continues her advocacy work as a Soros Justice Fellow, and is working to pass legislation to end prison birth nationwide. For more information and to learn about a short film about Pamela, you can visit @WINNmovie on Instagram

50 Years Into the War on Drugs, Biden-Harris can Fix the Harm It Created

An earlier version of this blog appeared in The Hill.

This year marks 50 years since President Richard Nixon declared drugs “public enemy number one,” launching a war on drugs that has pumped hundreds of billions of dollars into law enforcement, led to the incarceration of millions of people — disproportionately Black — and has done nothing to prevent drug overdoses.
As President-elect Joe Biden and Vice President-elect Kamala Harris prepare to take office, they have an opportunity to begin to put an end to this failed war. And it is abundantly clear that they have a mandate from the electorate to tackle this issue.
Today there are more than 1.35 million arrests per year for drug possession, with 500,000 arrests for marijuana alone. Every 25 seconds a person is arrested for possessing drugs for personal use, and on average, a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates. At least 130,000 people are behind bars in the U.S. for drug possession.
While tens of billions of dollars are spent each year to prosecute this war, more than 70,000 people still die of drug overdoses. Deaths from heroin overdose in the United States rose 500 percent from 2001 to 2014. Overall deaths from drug overdoses remain higher than the peak yearly death totals ever recorded for car accidents or guns.
The war on drugs has failed, and Americans on the right and left are ready for it to end. These views were on display at the ballot box in 2020, when voters across the country approved every ballot measure on scaling back the war on drugs. From Arizona, Oregon, and Montana to South Dakota, New Jersey, and Washington D.C., Americans turned out in droves to say that it’s time to stop criminalizing drug use.
The effort in Oregon, led by the Drug Policy Alliance and supported by the ACLU, was the most groundbreaking. This ballot measure decriminalized the possession of drugs for personal use, funding drug addiction treatment and recovery programs with the savings and tax revenue from marijuana legalization. Measure 110 will prevent more than 3,000 arrests a year for drugs such as heroin, cocaine, and methamphetamines. Oregon is now the first state in the nation to decriminalize all drugs, laying the foundation for reorienting the government’s response to drugs to a public health approach rather than a criminal law one.
Other states also showed that drug law reform is a winning issue on both sides of the aisle. Arizona, Montana, New Jersey, and South Dakota all legalized marijuana, joining 11 other states and Washington D.C. South Dakota, where Trump received 62 percent of the vote, showed that legalizing marijuana is a bipartisan issue, as did Montana, which elected Republicans to every major office in the state, while also voting to legalize marijuana.
Then in December, Congress delivered two victories, joining states in the movement for reform. On Dec. 4, the House of Representatives passed the most comprehensive marijuana reform legislation in Congress, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884; S. 2227), which decriminalizes marijuana by removing it from the list of scheduled substances, expunges past convictions and arrests, and taxes marijuana to reinvest in communities targeted by the war on drugs. Sen. Harris is the primary sponsor of the MORE Act, but its fate in the Senate is uncertain despite bipartisan support. Then on Dec. 21, Congress passed a COVID-19 stimulus package that included repealing the prohibition on students with drug convictions from receiving federal financial aid, helping thousands of students get an education.
With resounding victories in red and blue states, President-elect Biden and Vice President-elect Harris now have a clear decree from voters. Here are the five things they can do to begin ending the war on drugs.
First, President Biden should issue an executive order within his first 100 days declaring an end to the war on drugs and directing his federal prosecutors and law enforcement to use their discretion to stop prosecuting the war on drugs. Thousands of people are prosecuted in federal court for drug possession and prosecutors have failed to adequately use their discretion to decline these cases, let alone to not seek incarceration as sentence. This must end. An executive order by President Biden should also incentivize states to end the war on drugs, where the large majority of incarceration for drugs takes place.
Second, President Biden should commute the sentences of people currently incarcerated for the war on drugs, and pardon people living with the consequences of this failed war. Candidate Biden committed to “reform[ing] the criminal justice system so that no one is incarcerated for drug use alone.” This is his chance to follow through on this promise by at the very least commuting sentences and pardoning people who fall under this category. That would be a good start.
Third, President Biden should direct federal funds to pilot new depenalization approaches to drug-related issues, as recently recommended in a report issued by the FXB Center for Health and Human Rights at Harvard University. This should include overdose prevention centers, where people can use illicit substances while under medical supervision and can access various treatments and referral services. Such models have existed for many years in countries such as Canada, Germany, and Denmark, and have reduced the likelihood of overdoses.
Fourth, President Biden should direct the Department of Justice to withdraw from litigation challenging overdose prevention centers that have been approved at the local level. As cities across the nation attempted to address record number of fatal overdoses, the Trump administration cracked down on cities and challenged them in court. President Biden should reverse this policy and refrain from filing new lawsuits.
Finally, the Biden administration should work with Congress to pass legislation such as the MORE Act. Polling has consistently shown that marijuana legalization is a bipartisan issue. Five Republicans voted for the MORE Act in the House. A Biden-Harris administration should use their influence to convince Republicans in the Senate to support the MORE Act.
Today, policymakers and the public alike are increasingly adopting approaches that treat substance use as a public health issue rather than a criminal justice one. This recognition is bipartisan, as the war on drugs has not differentiated between blue states and red states, and the public understands the importance of addressing addiction through public health measures. The Biden-Harris administration can begin healing our nation by moving decisively on this issue and beginning to repair the harm caused by 50 years of this failed war.

Black Life Deserves More Than Meaningless Commissions

This weekend the Trump administration released a 332-page report purporting to offer recommendations on police reform. The findings of this sham commission — composed primarily of police and prosecutors — show what most already knew to be true. The Trump administration never had any plans to implement transformative changes to policing that would curtail police violence, truly hold law enforcement accountable, or conduct any legitimate federal oversight of even the most troubled law enforcement agencies. This report was never meant to enhance safety for all communities; it was meant to advance the Trump administration’s “law and order” political agenda. 

The Trump commission’s flawed recommendations are, in many cases, literally the opposite of what’s necessary to address the epidemic of police violence and mass incarceration. While the Trump commission simply restates a laundry list of recommendations focused on protecting police, here are a few recommendations for what we need to do instead. 

We must transform the role of police and prosecutors in the criminal legal system. 

The Trump commission report demonizes reform-minded prosecutors who use their discretion to choose liberty over incarceration and rehabilitation over punishment. These exercises of discretion — including choosing not to enforce and prosecute certain offenses —are exactly what prosecutors should be doing to help end mass incarceration. So are the efforts to end cash bail and wealth based incarceration that the Trump commission links, without evidence, to increased crime. In fact, states that have transformed their bail systems, such as New Jersey, have not only seen a reduction in the use of cash bail, but also a reduction in incarceration and crime. 

We must stop the use of racist and invasive face recognition technology.

Jurisdictions across the country, including Portland, Boston, San Francisco, and the State of Vermont have halted law enforcement use of face recognition technology. This effort came after recognizing that the racist technology misidentifies people of color at high rates and threatens to supercharge over-policing of communities of color. But the Trump commission calls for an expansion of these dangerous technologies — exactly the opposite of what we need. By ending law enforcement reliance on face recognition algorithms we can limit false arrests of Black men, and ensure community members are free from the threat of pervasive government surveillance every time we leave our homes.   

We must abolish qualified immunity. 

Across the country there has been a bipartisan effort to reign in qualified immunity — a court-created legal defense that shields police officers from liability for misconduct. Once an obscure legal doctrine, it has become a central focus of activists’ calls for police accountability as recognition of the policy as one of the main doctrines used to defend police officers in cases of police violence has grown. Officer Derek Chauvin, the police officer who killed George Floyd by kneeling on his neck for over eight minutes in a video seen around the world, might evade accountability in a civil suit through qualified immunity. By abolishing the doctrine of qualified immunity, many families, victims, and survivors of police violence will have the opportunity to obtain some form of justice in our legal system. Yet the Trump commission flat-out rejects the idea of abolishing or even limiting qualified immunity.

We need to implement enforceable legal guidelines that clarify when police officers can use force against members of the communities they are charged with protecting.  

Policies that limit officers’ use of lethal force so it is used only when absolutely necessary and after exhausting other alternatives such as de-escalation must be implemented on the local, state, and federal level. Instead, however, the Trump commission asserts that “the most effective measure to prevent police from using force remains for citizens to comply with officer commands” and that community members who are being unlawfully abused by police officers should “Comply, Then Complain.” The “comply, then complain” framework means that people in America must bow down to law enforcement, no matter what their behavior may be. This may be true in totalitarian regimes, but in America, the police work for the people.

From its inception, it was clear that the President’s Commission on Law Enforcement and the Administration of Justice was a thinly veiled attempt to use the idea of “police reform” to promote President Trump’s “law and order” agenda, even as historic numbers of people marched in the streets to demand structural changes and an end to police violence. The commission’s goal of “promoting public confidence and respect for the law” was a thinly-veiled threat to advocates and organizers fighting to end police violence. Its mandate to look at “refusals by State and local prosecutors to enforce laws” was a rebuke of the movement to fix a corrupt, punitive, and harmful legal system and its mere composition an attempt by the Attorney General to advance a one-sided agenda. This flawed, bad faith approach should be buried along with the rest of the Trump administration’s terrible ideas on Jan. 20.

New Law Requires Federal Agents to Identify Themselves to Protesters

When people took to the streets this year to protest racial injustice and police brutality against Black people, they faced a repressive, violent response from local police and federal agents. Some of these agents arrived with militarized uniforms, riot gear, and weapons, but, notably, no visible name labels, badges, or even insignia marking their government agency. Congress just put a stop to this corrosive and undemocratic secrecy, requiring federal agents to identify themselves.

Tucked inside the National Defense Authorization Act (H.R. 6395), which just became law, is a new requirement for federal military and civilian law enforcement personnel involved in the federal government’s response to a “civil disturbance” to wear visible identification of themselves and the name of the government entity employing them. That’s good news, because requiring such identification should be a no-brainer in a democracy. When government employees are interacting with members of the public and exercising government authority, such as the power to arrest people, the public should have the right to know who the employees are and which agency employs them.

Furthermore, when government personnel engage in wrongdoing, such as attacking protesters, one of the first steps in holding them accountable is knowing who they are. It’s no surprise that rights-violating law enforcement would want to obscure their name plate and badge number before committing some unethical or even illegal act. Impeding transparency blocks oversight and accountability.

What the nation witnessed in Washington, D.C. and Portland, Oregon underscores the vital need for the legislation. In Portland, incognito federal officers who refused to identify themselves snatched civilians off the street and whisked them away in unmarked vehicles. Only later did U.S. Customs and Border Protection and the U.S. Marshals Service reveal that they were involved. In our nation’s capital, the Trump administration swarmed the city with heavily-armed, unidentified officers with unclear governmental affiliations. When asked by journalists to give their names or specific governmental affiliation, these federal officers refused.

The resulting images provoked outcries of our government resorting to the kinds of unaccountable “secret police” used by authoritarian regimes to silence dissidents and terrify ordinary citizens into submission. Protesters and security experts also flagged that the unidentified government forces’ appearances can be practically indistinguishable from the kinds of right-wing armed extremists that have, among other things, shot racial justice protesters on the streets of Kenosha, plotted to kidnap Michigan’s governor, and engaged in violent clashes around the country. This creates the risk that members of the public will treat law enforcement agents as illegitimate armed vigilantes, or defer to vigilantes who are posing as law enforcement. 

In an important step forward for government transparency and accountability, lawmakers like Rep. Houlahan and Sens. Murphy and Schumer heeded the calls for reform and sought to ensure that a new identification requirement would be part of the final defense bill. Thankfully, they were successful.

Even with this provision poised for enactment, additional reform is still urgently needed at all levels of government. For example, it is always better to have the officer’s name displayed rather than allowing a non-name identifier, such as a badge number, to be used as a substitute. Names are usually easier to remember than numbers or letters, thus making it easier for people to later identify and report officers. The current exceptions to the new identification requirement should also be narrowed.

Still, the message that Congress is sending to the executive branch and enshrining into statute is unmistakable: Secret police forces patrolling our neighborhoods in response to protests and other mass gatherings, in anonymity and shielded from accountability, are unacceptable. They do not belong in a democracy such as the United States. 

When the next president takes office this month, his administration should affirm the principle as it implements the new law in the strongest possible manner — and keep its goal of a transparent and accountable government in mind as it works with Congress and civil society to respond to the inequities highlighted by the recent protests. 

Incarcerated People Should Get Priority Access to the COVID-19 Vaccine. It’s the Smart and Human Thing to Do.

Governor Jared Polis of Colorado — otherwise a trailblazer when it comes to criminal legal reform — recently said, “There’s no way [the COVID-19 vaccine] is going to go to prisoners before it goes to the people who haven’t committed any crime.” Under fire from activists like us, he walked back that statement a few days later. But his initial instinct to throw incarcerated people under the bus is sadly typical, and we shouldn’t allow sentiments like that to poison the national discussion around vaccine access and distribution.
Following the U.S. Food and Drug Administration’s approval of a COVID-19 vaccine, the critical question for lawmakers — who should get the vaccine first — is still roiling. As with anything important, the devil is in the details. And in this instance, the details can determine life or death for thousands of incarcerated individuals. 
Protecting them is a matter of science, law, and basic humanity. 
Let’s start with science. Carceral settings have consistently been listed among the top coronavirus hotspots and the source of much suffering and death because they are too crowded and unhygienic to allow for social distancing. The death rate in prisons has been three times that of the general population. The infection rate of COVID-19 among those in immigration detention between May and August was 13 times higher than that of the general the rate of the U.S. population.
Individuals living in carceral settings also have higher rates of disability and chronic health issues that heighten their risk of severe illness or death from COVID-19. As just one illustration, public health experts note that incarcerated people should be treated as though they are 10 to 15 years older than their biological age. These vulnerabilities are due in part to the physical stress and strain imposed by their imprisonment. Prior to COVID-19, these facilities already denied detainees access to adequate nutrition, health care, hygienic supplies, and fresh air — a situation worsened by a woefully harmful and inadequate response to the pandemic.  
Prison, jail, and detention administrators have consistently failed to take the necessary steps to prevent outbreaks that endanger both the people inside and outside their facilities, as the virus does not stop at the prison walls. Staff and contractors churn in and out constantly, allowing the virus to spread both within the facility and in the broader community. As a result, dozens of public health experts have supported lawsuits and advocacy by the ACLU and other organizations to increase protective measures and significantly reduce incarcerated populations. Just last week we won an order to cut the Orange County jail population in half, because social distancing was impossible without it. The science-driven arguments apply equally to vaccine distribution: The faster we get vaccines into detention settings, the faster we can protect everyone, both inside and out.     
The law also supports the science. The Constitution protects individuals who are incarcerated and therefore unable to protect themselves. To that end, government officials must take reasonable efforts to protect those in their custody from becoming infected with COVID-19. Nothing is more reasonable than vaccinating the most vulnerable populations first, wherever they live. The fact that incarcerated people may be fighting for asylum, or have been convicted or accused of a crime, is irrelevantto the analysis here, and it should be.Now more than ever, federal and state officials must honor their oaths to these constitutional principles. Lives are at stake.
Finally, this is about basic humanity. COVID-19 has disproportionately decimated the poor, the medically vulnerable, people with disabilities, and Black and Brown communities, including immigrants. Many people fall into several of these categories at once, and far too many find themselves incarcerated — often because of this country’s legacy of systemic racism. Already at increased risk of infection, many are also at the mercy of their government to protect them. And, so far, governments have largely failed.  
But because of ACLU litigation and advocacy, criminal defendants now have the right to remain silent and the right to a court-appointed attorney. We fought the racist war on drugs in the 1980s and have never stopped. We are ending the caging of migrant children nationwide. Our work since March protecting the nation’s most vulnerable from COVID-19 is a continuation of this legacy. Today, we are proud to say that people in prisons, jails, and immigration detention — along with people with disabilities and seniors in congregate settings, communities of color, and other vulnerable groups who have been most impacted by the pandemic — should be a first-tier priority for the COVID-19 vaccine. And if officials fail to prioritize incarcerated individuals for the vaccine, we will do what we do best: We will take those officials to court. 

The Songs That Helped ACLU Staffers Survive 2020

How to sum up 2020: Stressful? Uncertain? Hard? If you’re like some ACLU staffers, one note of help came quite literally from listening to music. For a special year-end holiday episode, we asked a few staffers to tell us which song provided the service of escape or inspiration or just comfort. 

It’s been a really long year, so we hope you enjoy this momentary departure from our usual talk of the latest civil rights and civil liberties battles in service of the songs that got us through this year. Here are a few of the songs that made us dance, jump, or simply keep going.

Arkansas Politicians’ Relentless Push to End Abortion Access, and Humiliate and Shame Abortion Patients

This week, the ACLU is back in court working to protect the constitutional right to abortion in Arkansas. In 2017, the state legislature passed four anti-abortion laws to severely restrict access to abortion. If allowed to take effect, these laws would ban the only method of abortion provided in Arkansas after approximately 14 weeks in pregnancy; require that patients’ partners or others be notified of their abortion; force the health care center to report teenage patients’ abortion to local police where there is no reason to suspect a crime; and force physicians to request a vast number of medical records for each patient with no medical justification, violating physician-patient confidentiality and delaying — or outright blocking — access to abortion care.

While the ACLU has successfully blocked these laws since their passage, we are still fighting in court to keep them blocked. The stakes of this fight could not be higher. In the few hours this week the laws were in effect, patients’ appointments were cancelled, and the consequences would be devastating if these laws are upheld. Five patients provided testimony in our lawsuit, sharing their stories of what access to abortion in Arkansas has meant for their lives.

For Joan Doe, the partner notification requirement would have been untenable. “My boyfriend was abusive and controlling. If the clinic had had to notify him about the procedure, he would have used that information to exert even further control over me. He would not have wanted me to get an abortion, and would have attempted to prevent me from having one. [If this requirement was in effect at the time of my abortion], I would have had to try to travel out of state to avoid the clinic hav[ing] to notify him, even though I do not know how I would have been able to afford to do that. I barely had enough money to afford the procedure at the time, and the cost of traveling out of state would have been prohibitively expensive.”

Mary Doe explained the burden these laws place on minors. “At 16 years old, I had an abortion at Little Rock Family Planning. At that time, I lived in my rural hometown of about 600 people with my mother and step-father …We lived in a secluded area, and we didn’t have enough money for many expenses. When I got pregnant, I knew I needed to have an abortion … my parents provided parental consent … But we could not tell [my boyfriend’s] parents … we were terrified what would happen if they found out. [We] were really scared that his parents would beat him up or kick him out of the house if they knew.

“If the clinic were required to tell the local police about my abortion … This is especially concerning for me because I have family members on the local police force. I fear that they would disown me if they knew about my abortion. Even if it were meant to be kept confidential, it is a small community and the fact that I had an abortion would get around … I probably would not have gotten an abortion in Arkansas if notification to my boyfriend’s parents or the local police were required. I likely would have tried to travel out of state to get the abortion. I couldn’t afford this, so I would have to go without eating much for a week or two to be able to save up to travel.”

Kate Doe suffered life-threatening complications during a prior pregnancy, and spoke about the impact that delaying care to collect a wide array of medical records would have. “I would have been frightened and intimidated if I could not have had an abortion unless the clinic first requested medical records from my prior doctors. That would be a huge invasion of my privacy. Seeking an abortion is a private decision, and I do not think it is necessary or appropriate to inform all of my previous doctors of my decision … I am concerned that if I had to contact my prior physician, information [about] my abortion would leak into my community.

“Obtaining all prior medical records would also take additional time, and I am worried about the emotional and physical toll that delaying an abortion could place on women. Delaying the abortion could have put my body at risk for more complications, as with my last pregnancy. It would have been emotionally stressful as well, because it was important to me to terminate the pregnancy as soon as possible after I made up my mind that an abortion was the right thing for me and my family.”

May Doe came to the decision that she needed an abortion when she received news of a life-threatening fetal diagnosis in the second trimester later in her pregnancy. After being denied care in her home state, she traveled to Arkansas: “If I hadn’t been able to get the abortion because of the new laws, it would have been torture. I had already waited nearly six weeks since receiving the diagnosis, and any further delay would push me beyond the gestational age limit to have an abortion in Arkansas. I am not sure what I would have done, or if there is another place I could go to get an abortion. I may have had to remain pregnant, and give birth to a baby that would shortly die. This would have been horrible for both my mental and physical health.

“I feel fortunate that the Arkansas laws did not yet go into effect, and I was finally able to get the abortion I needed. I feel a lot of relief now that this ordeal is over. But if these laws go into effect, I know there are others like me who would not be able to access the care they need.”

The ACLU will never stop fighting for the many people who, like these patients, need access to abortion care in Arkansas. Abortion is a right, and access to it should never depend on where you live. We’ll continue to remind Arkansas politicians of that for as long as it takes.

A Tale of Two Body Camera Videos

Over the past month, two high-profile incidents reaffirmed why police body cameras cannot serve as a police transparency and accountability tool as long as state law empowers the police to determine what footage the public gets to see. As we have said time and time again, when the police are given the discretion to publicly release favorable body camera footage but withhold negative footage, police body cameras become nothing more than a police propaganda tool.

The first such incident occurred on Nov. 19 in Omaha, Nebraska, where Kenneth Jones, a 35-year-old Black man, was pulled from the back seat of a car and killed by white police officers during a traffic stop. Despite having body camera footage of the incident, and immediate calls for transparency, the Omaha Police Department has refused to release the footage despite Nebraska’s strong tradition of open government. This decision, quite understandably, incensed the public. Omaha Deputy City Attorney Bernard in den Bosch, while acknowledging that “in the State of Nebraska, body cam videos are probably public records” nevertheless stated that “we have exercised our right to use the exception in the public records act to withhold them from public dissemination.” 

Omaha Police Chief Todd Schmaderer took a different approach, saying that “I want to release the video” but then claiming he could not because “the video is the most inflammatory piece” of evidence, and that “arguably, if you are going to taint the jury pool, it would be with that piece of evidence.” The Omaha Police Department even went a step further, suggesting that Nebraska state law prohibits them from releasing the footage until the conclusion of any grand jury work related to the recorded incident.

The chief’s claims are odd and suspicious for three reasons. First, when privately recorded videos of police conduct have been publicly released, they have had shockingly little impact on jury pools. Just ask the families of Eric Garner in Staten Island, New York or Daniel Shaver in Mesa, Arizona, where despite the release of graphic videos of their family members’ murders, the offending officers avoided any criminal liability. Second, the chief’s claim that state law prohibits him from releasing the footage is without merit. Even the local county prosecutor’s office told News Channel Nebraska that “nothing in the [state] grand jury law prohibits any police video from being released now.” Third, despite the chief’s claim that he was legally prohibited from releasing the body camera footage, he and his own police department went ahead and released several still images from the video — undermining all his previous claims.  

All in all, the tangled web of strained and dubious claims by the Omaha Police Department are strongly indicative of someone trying to hide the truth; in this case, an unfavorable truth contained on body camera footage. But because Nebraska state law does not create an affirmative obligation to release police use-of-force body camera videos within a short time after an incident, the public has not seen the footage to date.

Contrast that with the second incident, which occurred just over two weeks later, on Dec. 7, in Tallahassee, Florida. In that case, the Florida State Police raided the home of former Florida Department of Health data scientist Rebekah Jones, who has alleged she was fired from her job for refusing to manipulate COVID data. Following the raid, Jones tweeted that the state police “pointed a gun in my face. They pointed guns at my kids.” The tweet, which included a privately recorded video of the police entering Jones’ home, was picked up by the local press.

In that case, like the case in Omaha, the police were wearing body cameras. Similarly as well, Florida’s body camera law, like that in Nebraska, does not require the immediate release of body camera videos that contain police uses of force, like entering a person’s home with guns drawn. However, in the Florida case, police body camera footage appears to show the state police acting in a more restrained manner than Jones was alleging. As a result, in what CNN properly noted to be a “rare move”, the state police released the body camera footage publicly, and they did it quickly. Transparency prevailed, but only because it favored the police.

This double standard plays out in states like Nebraska, Florida, and many others where laws allow the police to be the sole or initial arbiter of what body camera footage the public gets to see. When body camera footage is negative, the police use bogus arguments to either withhold it or to justify selectively releasing portions of the footage to foster the story they are trying to tell. However, when body camera footage is favorable, the police tend to release the video with lightning speed. That is how a propaganda tool operates.

If police body cameras are ever to become a real tool for promoting police transparency and accountability, release of footage that captures uses of force or alleged police misconduct should be quick and automatic. Further, as the ACLU’s model state body camera legislation states, “where a subject of the video footage is recorded being killed, shot by a firearm, or grievously injured, [release of the footage] shall be prioritized and the requested video footage shall be provided as expeditiously as possible, but in no circumstances later than five (5) days following receipt of the request.” States that do otherwise, either by leaving the release of critical footage to law enforcement discretion or by erecting laborious and costly legal hurdles to accessing important footage, should drop the ruse that they care about police transparency or the safety of their Black and Brown constituents who are so frequently the targets of police misconduct.

The FBI is Secretly Breaking Into Encrypted Devices. We’re Suing.

The FBI is secretly breaking the encryption that secures our cell phones and laptops from identity thieves, hackers, and abusive governments, and it refuses to even acknowledge that it has information about these efforts — even though some details have been filed publicly in federal court. We’re suing to get some answers.
Between our emails, text messages, location information, social media activity, and more, our cell phones hold almost our entire lives. In recent years, governments have stepped up efforts to gain access to the information on our cell phones and personal computers. The federal government has been pressuring companies to build encryption backdoors that would severely undermine our digital privacy and security, and both federal and state governments have regularly paid third-party vendors to break into people’s encrypted devices.
Now, it appears the FBI has built an in-house capability to break into these devices. Publicly available information indicates that the Electronic Device Analysis Unit (EDAU), a team within the FBI, has acquired or is in the process of acquiring software that allows the government to unlock and decrypt information that is otherwise securely stored on cell phones. Public court records also describe instances where the EDAU appeared capable of accessing encrypted information off of a locked iPhone. And beyond that, the EDAU even sought to hire an electronics engineer whose major responsibilities would include “perform[ing] forensic extractions and advanced data recovery on locked and damaged devices.”
To learn more about the EDAU and its capabilities, we filed a request under the Freedom of Information Act asking that the Department of Justice and the FBI disclose records relating to the EDAU and its technological capabilities for retrieving information from locked electronic devices. The FBI responded in part by issuing what’s known as “Glomar” responses to two of our requests — which means that the agency refuses to even confirm or deny the existence of any records pertaining to the EDAU.
A valid Glomar response is rare, as there are only extremely limited instances where its invocation is appropriate — that is, only where the existence or nonexistence of records is itself exempt under FOIA. The problem with the FBI’s Glomar response is that, as detailed above, we already know records pertaining to the EDAU exist because information about the unit is already public. The fact that all of this information is already publicly known deeply undercuts the FBI’s Glomar theory. The FBI itself has made clear that it is attempting to access and decrypt personal electronic devices, so the claim that it can’t even acknowledge whether these records exist is implausible.
Seeking some much-needed transparency, today we asked a federal court to intervene and order the DOJ and the FBI to turn over all responsive documents pertaining to the EDAU. We’re demanding the government release records concerning any policies applicable to the EDAU, its technological capabilities to unlock or access electronic devices, and its requests for, purchases of, or uses of software that could enable it to bypass encryption.
By invoking the Glomar response, the federal government is sending a clear message: It aims to keep the American public in the dark about its ability to gain access to information stored on our personal mobile devices. But it’s not that the FBI has just shut the door on this information — they’ve shut the door, closed the windows, drawn the shades, and refused to acknowledge whether the house that we’re looking at even exists. It’s imperative that the public gets meaningful access to these records regarding the federal government’s capabilities to access our phones and computers. Our privacy and security is at stake.