ACLU News

COVID-19 Doesn’t Discriminate — Neither Should Congress’ Response

Congress’ third bill addressing the impacts of COVID-19, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), was a necessary attempt to respond to this public health crisis but its exclusion of immigrant communities is downright racist and xenophobic. Immigrants were cut out of provisions to ensure COVID-19 testing and care as well as economic relief, undermining our collective safety and economic future. COVID-19 doesn’t discriminate, Congress’ response shouldn’t either. It’s essential that another bill — one that encompasses everyone — be introduced and passed as soon as possible. 

There are three major ways in which immigrants were left behind in the CARES Act: testing and care, cash rebates, and unemployment insurance. If recent weeks have highlighted anything, it is just how interdependent our health is to confronting a virus that does not discriminate. Our country’s ability to contain this pandemic and the sustainability of our future depends on Congress closing the gaps created by the relief bills. Immigrants are serving so many vital roles at the frontlines of our recovery from COVID-19, including the 1.7 million immigrant medical and health care workers caring for COVID-19 patients and the 27,000 Deferred Action for Childhood Arrivals (DACA) recipients working as doctors, nurses, and paramedics. It is both irresponsible and morally unforgivable to pass relief bills that fail to recognize that every person’s health and financial stability are critical.

In its next bill, Congress must ensure that everyone who needs it receives testing and treatment. This should not even be up for debate. Yet, the second COVID-19 relief package, the Families First Coronavirus Response Act (Families First Act), left out tens of millions of people — including DACA recipients, TPS holders, certain survivors of crimes (U visa holders), undocumented people, and many green card holders. This bill included money to support testing for those who are uninsured and not covered by Medicaid, the Children’s Health Insurance Program, the Affordable Care Act marketplace, or any other individual or group health plan but kept in place immigrant eligibility restrictions.

The Families First Act should have made COVID-19-related services available under emergency Medicaid, so that it did not include the same immigrant eligibility restrictions as non-emergency Medicaid. It should also have ensured these services would not be counted against a person for public charge purposes, which are effectively wealth tests on people seeking admission as lawful permanent residents or on an immigrant visa.

Unfortunately, both the Families First Act and CARES Act failed to address these gaps, leaving out tens of millions of people from testing and treatment. Some states, like New York, are including COVID-19 testing, evaluation, and treatment as a part of emergency Medicaid coverage. Community health centers may also help fill this gap. But, they may not be able to and shouldn’t have to — the federal response must be as holistic as possible in developing a national policy.

Second, Congress must include all immigrant workers and tax filers in the tax rebate so that people can receive vital cash assistance. In the CARES Act, Congress funded cash rebates for recent tax filers based upon their taxpayer identification numbers, but limited this to those using Social Security numbers (SSNs). However, many people file their tax returns using an Individual Taxpayer Identification Number (ITIN). Under the bill, if ITIN users file jointly with a spouse or child with a SSN, everyone in the household will be denied access to the cash assistance. While Congress did create an exception to allow military families to be able to use an ITIN number, this narrow exception only demonstrates that members of Congress understood that they created this cruel carve out and still deliberately chose to leave out millions. As a result, many immigrant workers are put in an increasingly difficult position, cut out of cash assistance and risking their health for essential work without even having access to testing and care.

Third, the bill must provide unemployment insurance for as many people as possible  during this crisis. Under federal law, individuals must be work authorized both for the period of time for which they are claiming unemployment insurance and at the time of filing their claim. However, many immigrant workers awaiting adjudication of immigration benefits or at risk of the looming threat of a loss of status may experience a lapse in their work authorization — perhaps due to U.S. Citizenship and Immigration Services office closures during this crisis. Congress should ensure an automatic extension of work permits for individuals with DACA or Temporary Protected Status (TPS) and nonimmigrant visas for the same duration of time as a regular renewal of that work permit, i.e. a two-year extension for DACA recipients. Exacerbating financial hardship will likely make it impossible for these workers and community members to survive and harm our short and long-term recovery efforts.

Congress can and must take up another relief bill to address these significant gaps in order to ensure the well-being of people, families, and communities across the country, and for the future of our nation. And they need to do it now.

Resources:

  • There may be other options for testing and care. While many immigrants have been left out of the relief packages thus far, there are some options available for immigrants to get tested and treated for COVID-19. Community health centers provide healthcare to all patients regardless of immigration status typically at a reduced cost or free of charge. Find the closest health center to you at: https://findahealthcenter.hrsa.gov/. Call the community health center prior to going in person to ensure they are providing COVID-19 testing and care.
  • Testing and care will not impact immigration benefits. USCIS recently posted an alert notifying the public that it will not consider testing, treatment, or preventive care related to COVID-19 of noncitizens as a public charge, so such assistance should not impact their Lawful Permanent Residency or visa applications.
  • Immigration enforcement should not take place at or near health care facilities.  On its “Guidance on COVID-19” website, ICE has stated, “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.” ICE will not carry out enforcement operations “at or near health care facilities such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances,” per the agency’s previously issued sensitive locations memo and reiterated public statement on March 18, 2020. As always, it’s important to know your rights. Learn more about your rights here.

The Added Importance of the Census, in Light of COVID-19

Last year around this time, my biggest worry was how the inclusion of the Trump administration’s proposed citizenship question would depress participation in the decennial census. Thankfully, our Supreme Court victory means there is no citizenship question on the census. Now, I have a new worry: a global pandemic and the health of my loved ones. As it turns out, the 2020 Census plays a role here too, as it will have enormous implications on our health care for decades to come. 

Specifically, the census will determine the allocation of $300 billion dollars of federal aid for the states’ health care — money for programs like Medicaid, which covers low-income individuals, families, and persons with disabilities; the Children’s Health Insurance Program, which helps uninsured, low-income children; and other programs that help assure vulnerable people, including immigrants, can get health care when they need it. 

As I shelter in place in New York, the epicenter of America’s COVID-19 pandemic, the potential impact is tangible. Even before “self-isolation” and “shelter in place” became part of our country’s lexicon, New York was in danger of an undercount. According to the Census Bureau, New York City’s all-important initial response rate is projected to be 58 percent — woefully short of the 2010 national average of 66.5 percent. But across the country, there are safe ways to practice social distancing and fill out the census — online, by the phone, or by mail (just don’t lick the envelope).

These worrying trends were exacerbated by the  Trump administration’s unlawful attempt to include a citizenship question on the census. While my organization, the New York Immigration Coalition, amongst other partners including the ACLU, successfully argued against the inclusion of the question, participation in the census by immigrant populations became less and less likely each passing month. Just the threat of this question, coupled with increasingly aggressive targeting of our communities by Immigration and Customs Enforcement, have forced immigrants nationwide into the shadows and made participation in the census highly suspect.

Now immigrants stand on the frontlines of COVID-19 — nursing our elderly, cooking and delivering our meals, and driving us back and forth from the hospital, with even fewer protections. In short, our immigrant communities are keeping us functioning, and we must ensure that they don’t lose deserved resources and representation. As the COVID-19 pandemic creates a different kind of fear among immigrants, it’s more vital than ever before that every state gets its fair share of federal funding to ensure our hospitals and our entire infrastructure — from libraries to schools to roads — are better prepared for the next crisis.

But we can draw on the lessons we learned fighting the President’s attempts to exclude immigrants. To that end, we are deploying several tools to ensure an accurate count of everyone in the United States — using text-banking, virtual phone banking, Zoom trainings for community-based organizations, and multilingual messaging.

There is no doubt that the challenge before us is monumental. After all, even the Spanish Influenza of 1918 took place in a non-census year. Nonetheless, we are working hard with every social distancing tool at our disposal to ensure that every immigrant and everyone in the U.S., from all backgrounds, are fully represented in the nation’s once-in-a-decade count of its populace. At stake is billions of dollars for local schools, hospitals, libraries, businesses, and the health and well-being of everyone in our country.

The Transgender Community Needs More than Visibility

I was fired from my job as funeral director of a Detroit-area funeral home in 2013. I always received good reviews and had recently been promoted. The reason I was fired: I am a transgender woman. 
 
What happened to me wasn’t right, and I know it happens to many other people. So I contacted the ACLU. Firing someone because of who they are is discrimination, and it’s against the law. 
 
Right now, my case is before the U.S. Supreme Court and I am waiting for a decision that could come at any moment. The question is whether transgender people have the same protections from discrimination on the basis of sex as everyone else. 
 
No matter what the court decides, transgender people will still be here and we will still be fighting for the opportunity to work, go to school, and see a doctor — just like everyone else. 
 
This journey has given me lots of time to think about the importance of transgender people being visible. On Transgender Day of Visibility, which happens annually on March 31, I’m sharing some of what visibility means to me. 
 
One of the first things that happened after my case was filed was a media story that used a photo that wasn’t of me. At that moment, I started to realize how important it was for me to be seen as myself, not just at home, not just at work, but everywhere. 
 
As more people learned my story, countless transgender people have told me how much my story has meant to them. In my own life, being able to meet other transgender people — from my neighbors in Michigan to Laverne Cox — there’s no doubt that meeting transgender people makes a difference. 

When people ask me what they can do to support transgender people, I say that you must start by being accepting and supportive of the transgender people in your life, and then start to support the transgender community. 
 
It’s not that hard to see that we exist. It’s not that hard to support us. So here are a few things I suggest you consider. 
 
If you hear someone making a joke about transgender people, say something. I am not a joke. I am a person. If you work for a business that wants to support transgender people, consider making a donation to an organization led by transgender people and make your support known to elected officials, not just your customers. If you care about transgender people and are eligible to vote, make sure you are registered and tell candidates that you support transgender people and expect them to as well. 
 
Many transgender people have experienced discrimination on the job, in school, in housing, at the doctor’s office — even at home with their family. That can make it difficult to have a job that allows you to care for yourself, let alone cover your health insurance. Transgender people often have a lot to be concerned about, and with so many people concerned about their jobs and their health at this very moment, it can be a scary time. 
 
After checking on our transgender friends, we should all be saying to elected officials that we support laws the federal Equality Act and want to see laws right here in Michigan to say that it’s wrong to discriminate against transgender people. 
 
Visibility matters. And so does action to support transgender people. 
 
For my transgender siblings: It took me many years of life to be ok with being me. And I’m happy being me. I hope you will be who you are. Speak up for yourself. Don’t hang your head in shame because somebody else doesn’t believe in what you are doing. No matter if everyone or no one knows you are transgender, you are perfect and you are as visible as you need to be.  
 
I wasn’t sure how much support I was going to receive when I filed my lawsuit. In October 2019, years after this journey began, I became the first person to have a case about the civil rights of transgender people argued before our nation’s highest court. And then when we left the courtroom to hear people chanting my name outside of the Supreme Court steps, telling me that they love me, that had a big effect on me. 
 
I hope all transgender people can feel that love and support. Not just today, but every day. 

Is Location Tracking Technology the Magic Pill to Stemming the Coronavirus?

This piece first appeared on Just Security.

If asked to give up their privacy in the interests of stemming the coronavirus, many Americans might be inclined to say yes. But the answer requires more nuance, both because there are serious tradeoffs to be made, and because sacrificing privacy may actually backfire.

Consider, for example, serious discussions reportedly underway between the tech industry and the White House over how our cellphone location data might be used to help in the fight against COVID-19.  Having defended privacy for 100 years, we at the American Civil Liberties Union recognize that in extraordinary times, different balances may be warranted. The virus poses grave risks, so we should not write off tools that might help mitigate the problem. But we should be skeptical about calls to embrace Chinese-style tracking as a helpful measure in the current emergency. And any uses need to incorporate privacy protections if they are not going to be counterproductive.

Some have suggested, for example, that companies might share anonymized, aggregate data to help epidemiologists answer questions such as how many people are moving between adjacent neighborhoods, towns, or states each day. Anonymization alone does not solve all privacy problems; such data can often be re-identified, for example, by tracing a person’s movements to their home and workplace. On the other hand, given the urgency of our situation, analysis of aggregate data by companies might prove valuable if it comes with strict safeguards.

There may also be other privacy-protective ways that we could make use of individualized location data once we get beyond the current world of universal social distancing and hospitals in crisis. Some experts say that we may enter a phase of chronic, lower-level waves of infection where traditional epidemiological contact tracing and targeted isolation once again become a principal means of combatting the disease. In this mode, some countries have used location data in cooperation with those who are infected to help them retrace their movements, and provide the public with lists of places and times where infected people have been each day so people can determine for themselves whether they might have been exposed.

But the risk is that without the strongest privacy safeguards, such uses of location data may deter people from stepping forward and getting tested for COVID-19 in the first place—and that serves no one’s interest. South Korea’s program, for example, which lacks such safeguards, has left many people more afraid of social humiliation than of the disease itself.

If location data is to be used, there must be strict policies ensuring that, whenever possible, the patient has consented to such uses; minimizing any data sharing; requiring deletion of the data when there is no longer a need to hold it; and, where it is anonymized, ensuring that no effort be made to re-identify it. If the government obtains any data, it must be fully transparent about what data it is acquiring, and from where, and how it is using that data. Any programs should come with clear sunsets to ensure they don’t outlive the effort against COVID-19.

If we are to deploy location data for public health, policies must also ensure that it’s not used for any purposes beyond that effort. In particular, it should not be used for punitive or law enforcement purposes. Public health experts have found that a law enforcement approach to combatting disease typically sparks counterproductive resistance and evasion, and tends to sour the relationship between citizens and their government at a time when trust is of paramount importance. Good public health measures leverage people’s own incentives to report disease and help stop its spread.

Overall, good privacy protections are vital for engendering public trust, which is vital to an effective fight against the pandemic. The lack of such safeguards risks having the opposite effect.We should also not overestimate the effectiveness of location data in fighting COVID-19 — and should be especially leery of indiscriminate mass collection of location data. The urgent need at the moment, according to public health experts, is to ramp up testing capability, suppress transmission through social distancing measures, and ready our under-prepared hospitals for a mass influx of patients who can’t breathe. We are not hearing a cry from the public health profession for phone tracking — and the last thing we want to do is divert attention, expertise, and financial resources from these critical tasks.

That’s not stopping self-interested, privacy-invading private companies from embracing the coronavirus epidemic as a way to market their products, legitimize their activities, and launder their reputations. Some of those companies engage in mass location tracking without individuals’ meaningful awareness or consent and for questionable purposes. They would no doubt love to normalize these practices and cement them in American life. We should also be closely scrutinizing any government attempts to exploit this crisis to grab additional surveillance powers not necessary for defeating COVID-19.

But even if we had more trust in the companies that are pitching these proposals, there would be significant practical and legal problems with using Americans’ mass location records to fight this disease. Technology and policy experts are saying that the tools the government might use to monitor the public’s movements and interactions won’t work against the virus. Unlike China, we do not have or want a comprehensive system for accurate tracking of every person. The data that exists is dispersed among different companies that collect it using a variety of technologies and that store it in different formats. The government would also face steep legal hurdles in demanding access to any location data.

Cell phone location data is also often unreliable. Anybody who has opened a map application only to discover that their phone thinks they are two blocks away from where they’re standing understands that this is true. Even China reportedly found that location data calculated through cell-tower triangulation generated too many false positives and was wasting manpower. This is yet another reason that government officials need to listen to stakeholders and technologists who are not trying to promote private companies’ interests in infection control programs.

We are facing a terrible crisis, and Americans are rightly frightened. Times of emergency require a different weighing of privacy considerations. We need to seriously consider how technology can help us—but we also need to make sure that, when we’ve made it past this crisis, our country isn’t transformed into a place we don’t want to live.

Those “Free” Remote Learning Apps Have a High Cost: Your Student’s Privacy

The COVID-19 coronavirus outbreak that has ravaged our nation and world has had many jarring moments. For parents and their children, one of those came with the mass closing of our schools. Tens of millions of children faced having their educations grind to a halt, including 1.1 million children in New York City’s public schools alone — a number which includes two of my own.

While Americans have grown understandably weary of the tech industry, which repeatedly puts its profits ahead of Americans’ personal privacy, recent offers by companies like Google (via its Google Classroom app) and GoGuardian to provide their remote learning platforms to students for free during the pandemic seemed like a godsend. After all, it would enable U.S. students, at no cost, to continue to learn from the safety of their own homes. 

Maybe the tech industry tiger is changing its stripes. Or maybe the tech industry devil just glued a fake halo on top of its horns. The answer to that question all depends on whether they will insist on undermining students’ privacy as a condition of helping them.

For years, the ACLU has expressed concerns about how the tech industry’s educational products — often classified under the name EdTech — are used to gather massive amounts of highly personal student information. Further, some of these products troublingly enable EdTech companies and schools to spy on students despite no evidence of wrongdoing — a practice that further exacerbates the over-disciplining of students of color. We at the ACLU have launched national efforts to encourage states to pass laws protecting student privacy, offered suites of model bills to assist their efforts, and spoken out against ever-increasing student privacy invasions.

Now that the COVID-19 pandemic has created an unprecedented opportunity for EdTech companies to make the use of their privacy-violating educational products nearly universal, there is a real risk that these companies, under the guise of a generous act, will use this opportunity to create personal information dossiers on an entire generation of young Americans.

One could argue that such an interpretation is very cynical; it is a textbook example of looking a gift horse in the mouth. Perhaps it is. In fairness, the tech industry has made trillions of dollars giving away “free” products that are not actually free: Americans, knowingly or unknowingly, pay for their products by giving them troves of personal information, which the companies then use to make staggering profits.

The good news is that Americans and their governments should not — and do not have to — feel trapped into choosing between students’ education and privacy rights. There is a simple, four-part approach governments and school districts can and should take when accepting (or continuing to use) the “free” remote learning platforms EdTech companies like Google and GoGuardian have offered.  If these EdTech companies are truly acting in the best interests of students and teachers here, they shouldn’t object at all.

It’s as simple as this:

Step One: To the extent these remote learning platforms are being provided for free specifically to help students learn remotely, that is a wonderful act and should be appreciated. Let’s start by thanking these EdTech companies for their generosity.

Step Two: Use of these “free” remote learning platforms, which will likely feel mandatory for students and families during this crisis, should not be conditioned on students allowing EdTech companies to gather up and retain their private and personal information. Governments, including school districts, should insist EdTech companies limit their personal information gathering to only what is directly necessary for their platforms’ remote learning functionality. Moreover, these EdTech companies should be required to expunge all the personal information they gather during this crisis when it resolves, unless a student specifically opts-in to it being retained (via a clear, post-crisis request, and not as part of a broad user agreement they sign now under pressure).

Step Three: Governments and school districts should insist EdTech companies disable any surveillance functions that may accompany their remote learning platforms, including communications and social media monitoring, keyword alerts, and web filtering functions.  Students and their families need these platforms to learn at home, not to allow companies and school districts to spy on them; receiving the former should not be conditioned on exposing oneself to the latter.

Step Four:  To ensure the EdTech companies keep their promises, they should consent to government auditing of their compliance after the pandemic subsides.
If the EdTech companies are truly providing their remote learning platforms for free to help students and their families during this terrible and challenging time, they should have no problem instantly agreeing to these conditions.  If they balk, we will know they are once again the devil in disguise.

Asylum Seekers Stranded in Mexico Face a New Danger: COVID-19

Since the Trump administration first unrolled its policy of forcing migrants to wait in Mexico for their asylum hearings, advocates have been warning that the practice places them in danger. Now, the global coronavirus outbreak is putting an exclamation point on those warnings and adding a new, frightening layer of risk into the lives of asylum seekers stuck in Northern Mexico.

On Monday, reports emerged of asylum seekers who were scheduled to appear in court in the U.S. instead being turned back from border checkpoints by Customs and Border Protection (CBP) officers. That evening, the Department of Homeland Security (DHS) announced that all hearings for asylum seekers returned to Mexico up to April 22nd would be rescheduled.

According to an attorney based in El Paso, Texas, those hearings are being pushed to late April or early May, although there is no guarantee that the outbreak will have abated by then.

Meanwhile, many asylum seekers have been stuck in dangerous border cities for months waiting for those hearings. Health workers say that now they are vulnerable to the COVID-19 pandemic in ways that would have been avoided if they had been admitted and released into the U.S. for their proceedings.

Under the “Migrant Protection Protocols” (MPP), around 60,000 people have been forced to wait in Mexico while their requests for protection in the U.S. are weighed by the courts. Over 17,000 of them are still waiting on upcoming hearings — more than 6,500 for at least six months.

Last Friday, the U.S. and Mexico announced they were closing the border to “non-essential” travel and the Centers for Disease Control released a public health order suspending “the introduction of certain persons” into the U.S. The order will likely be used to sharply curtail access to the asylum system for anyone who arrives at the border right now.

For those who were already returned to Mexico under the MPP — many of whom are fleeing political persecution, gang violence, and abuse at home — an uncertain future now looms.
 
For the past year, advocates have criticized the MPP as a cruel policy meant to deter people from seeking asylum in the U.S. by forcing them to stay in dangerous areas during a long, drawn-out legal process. Many asylum seekers who return to Mexico under the policy wind up in overcrowded migrant shelters or in some cases, sprawling tent camps near the border.
 
Thus far, no cases of COVID-19 have been reported among any asylum seekers in Mexico. But the numbers of people infected with the disease in states like California and Texas are growing, raising concerns in previous weeks that asylum seekers who attended their hearings could bring the virus back into Mexico with them after being exposed inside the U.S.
 
Linda Rivas, executive director of the El Paso-based legal services organization Las Americas, said last week a client of hers chose to skip a court date she’d been waiting on for months rather than risk entering the U.S.
 
“The idea of having to go back and forth and then going into the shelter space is just really scary,” said Rivas. “The cell phones that we have dedicated for our MPP clients are ringing off the hook. Lots of questions, lots of doubts.”
 
Tania Guerrero, an attorney with the Washington, D.C.-based Catholic Legal Immigration Network, says the federal migrant shelter in Ciudad Juarez has begun to implement precautionary measures, but she fears what might happen if an asylum seeker there contracts the disease.
 
“There’s no social distance,” she said. “Now at least people aren’t on the floor, they have bunk beds, but they’re all crammed into one huge room in a warehouse.”
 
Guerrero said the shelter is now requiring staff and volunteers to wear surgical masks as well as recording the temperature of its residents when they return to the facility:
 
“If you leave, you might not be able to come back. And that’s not just out of fear, it’s out of precaution.”

On the other end of the Texas border, in Matamoros, Mexico — where a tent camp with thousands of asylum seekers has sprung up — humanitarian relief workers say an outbreak of COVID-19 could be catastrophic.
 
Helen Perry, the director of Global Response Management (GRM), an aid organization that provides medical services to the camp’s residents, says she’s bracing for the arrival of the virus.
 
“The camp is close living quarters. Showers, kitchens, sinks, and bathrooms are all communal. They’re kind of crammed in there,” she said.
 
GRM is making plans to build a 20-bed field hospital with the capacity to do basic bloodwork and intravenous rehydration, which she hopes could keep moderate cases from becoming severe if there is an outbreak.
 
“People here are walking around moderately malnourished or chronically dehydrated, and 25 percent of them have underlying chronic health conditions like diabetes and hypertension,” she said. “We feel like we have to react and be able to offer care that could keep them from getting chronically ill and needing to be intubated.”
 
According to Perry, Matamoros has only ten total ventilators in the entire city. Tensions between residents of Matamoros and people living in the camp have spiked since anti-MPP protests temporarily shut down traffic at a major border checkpoints in January, and Perry worries about what could happen if someone in the camp contracts the virus.
 
“There is already stigma that exists against individuals in the camp,” she said.
 
The ACLU sued to end the MPP not long after it first went into effect in Tijuana, Mexico. On February 28th, the Ninth Circuit Court of Appeals ruled in favor of the ACLU in the suit, agreeing with a lower court that it should be blocked. But on March 11th, the Supreme Court stepped in and stayed the Ninth Circuit’s order, allowing the policy to remain in effect.
 
Now, because of that policy, asylum seekers in Northern Mexico who traveled to the U.S. hoping to find safety will have to face the COVID-19 outbreak in an environment that was already precarious, and which has now become even more unsafe.
 
If the disease becomes widespread in Northern Mexico, asylum seekers from Central America and elsewhere are unlikely to be at the front of the line for a health care system with limited resources. And with their legal process delayed by at least a month or more, there is no way to tell what the ultimate impact of the crisis will be on their efforts to find safety.
 
“We’re worried about them,” said Guerrero. “They’ve been in limbo for so long, you know?”

Living with COVID — in an Immigration Jail

Many of us are scared for our families and friends right now because of COVID-19. Every day we learn new information about the virus. Today we know that all of us, even the young and healthy, are at risk of this disease and serious complications from it. We cope and try to make ourselves safer, whether by social distancing, washing our hands more, or eating nutrition-packed meals.

But people in government custody — including the 37,000 immigrants held in immigration jails and prisons throughout the country, and thousands more held near the border — don’t have these options.  They are being held in deadly conditions. That is why in addition to calling on public officials to downsize prisons and jails in the criminal legal system, the ACLU is calling on the government to utilize all available options to reduce the number of people in immigration detention. Ultimately, no one, whether they are a citizen or an immigrant, should be forced to live in conditions that imperil their lives during this public health crisis.

Immigrants in government custody are forced to live, sleep, and eat together. Some spend nearly all day in large rooms filled with closely packed bunk beds, or just long concrete benches. Others live in dank two-person cells, sometimes with minimal ventilation. Dozens of people share toilets and showers, sometimes with no divider and without disinfection between use. Social distancing is not an option. With everything we’ve learned from the Centers for Disease Control, we know these conditions are dangerous, even deadly.

For immigrants in detention, the tools for basic hygiene aren’t available either. Many people don’t have access to soap, let alone hand sanitizer. In Border Patrol stations, many immigrants are detained in overcrowded cells without ready access to sinks and showers. Detained people have described feeling like “sitting ducks, waiting to be infected.” One detained man in New Jersey said he and others were on a hunger strike to try to obtain soap and toilet paper — and that guards reportedly said, “Well, you’re going to have to die of something.”

It can be hard if not impossible to get medical attention, including access to previously prescribed medications. For example, it is not uncommon for detained immigrants to be given Tylenol for serious illnesses, including HIV and pneumonia. It’s no wonder that since October, 10 people have died in ICE custody. And over the past two years, at least seven children have died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether.

The ACLU has long said that the vast majority of people in immigration jails are being detained unnecessarily. They are being held for processing at the border, or are awaiting their immigration hearings or another administrative action — yet they have completely lost their liberty. COVID-19 lays bare the injustice, and the often life-or-death stakes, of their detention. As public health experts have already stated, “social distancing through release is necessary to slow transmission of infection.” ICE and CBP must immediately start reducing the number of people in detention, starting with the most vulnerable, to prevent the continued spread of COVID-19 to both people in immigration jails, and the staff who work in them.

We are far from alone in raising the alarm bells on this. There is an “imminent risk to the health and safety of immigrant detainees,” according to physicians who have investigated immigration prisons on behalf of the Department of Homeland Security (DHS) and are experts in the field of detention health. They’ve warned that once an outbreak occurs in immigration detention, it will spread quickly and have a devastating impact.

Mass incarceration of immigrants also risks the health and safety of the people who work in these facilities, as well as the communities they return home to. Last week, ICE told Congress it would “utilize alternatives to detention, as appropriate,” but an ICE official later reportedly clarified, “there has been no announcement related to releasing individuals that are currently detained.”

We don’t know how serious the government is about utilizing alternatives. But we do know that options for reducing detention are already on the table. As we pointed out in our lawsuit,
Dawson v. Asher, DHS could use its parole authority to release people on medical grounds, including people whom the CDC and other medical experts have identified are particularly at risk: those over 50 and those who have an underlying medical condition, such as lung or heart disease.
DHS has a range of options to release people from detention: on bond, humanitarian parole, or an alternative-to-detention program. Even a former ICE chief, John Sandweg, called on ICE to utilize its options, warning that an outbreak will “spread like wildfire.” Many people in ICE jails and prisons have family or sponsors in the U.S., with whom they could live and, if necessary, quarantine safely. Likewise, people in CBP custody could be released to family, community sponsors, or shelters with proper precautions in place

There has perhaps never been a more urgent time for ICE and CBP to reduce the number of people they’re holding in detention — this is a health crisis and prevention and containment is key. Already, at least two staff members and one detained individual at immigration jails in New Jersey and Texas have tested positive for COVID-19, potentially putting at risk hundreds of detained people and staff.

Our nation’s collective health depends on the Trump administration following the advice of doctors, scientists and public health experts. These experts are telling us that social distancing is necessary to curb COVID-19. They are also telling us that access to adequate healthcare is critical. None of these are options for people trapped in immigration detention, and for the officers and staff who have to report to work. We know this is wrong. ICE and CBP must do the responsible thing: reduce the number of people in detention, starting with the most vulnerable, to keep them safe from COVID-19 before it is too late.

This is No Time to Play Politics with our Democracy

To ensure elections proceed and eligible Americans can vote, any federal legislative package addressing the impact of COVID-19 on our elections must include an immediate, substantial infusion of federal funding and federal requirements for no-excuse mail-in absentee voting and early in-person voting. While the coronavirus pandemic should not be a political issue, with presidential primaries and the general election coming up, it could soon directly impact our politics. It is simply not an option for Congress to fail to act on these basic issues to protect American elections while the pandemic is ongoing. 
 
For many, the safest way to vote will be to vote by mail. However, there are approximately 17 states that currently do not allow no-excuse absentee voting by mail. In almost all cases, this absentee voting limitation is codified in state law and in some cases within the states’ constitutions, making it very difficult, if not impossible, to expand the ability to vote by mail in time to help reduce the impact of COVID-19. This is especially true in light of the inability of legislatures to convene at all, given the pandemic. 
 
For example, in Texas it is only possible to vote by mail if you are over 65, disabled, will be out of the United States on Election Day and during the early vote period, or are confined to jail but otherwise still eligible to vote. The language about being disabled is further restrictive — the voter must have “a sickness or physical condition that prevents the voter from appearing at the polling place on election day.” Arguably, this language would permit only individuals actually sick with the coronavirus to vote by mail. All these restrictions are set in Texas law, and given that Texas’ legislature isn’t scheduled to meet in 2020, these laws would be very difficult to modify in time for upcoming elections. During the current pandemic, it is nearly impossible to imagine how the Texas legislature can efficiently and safely convene an emergency legislative session.  
 
For other states, the limitations on absentee voting are set within the state constitutions, making the process for changes even more cumbersome. For example, in Massachusetts, current law only allows voters to cast absentee ballots by mail if they are out of town or unable to get to the polls because of a physical disability or religious restrictions. To change this may require an amendment to the state constitution, which must pass two successive legislatures and be approved by the voters through a ballot initiative — making it an impossible change before the 2020 general election. 
 
Texas and Massachusetts are just two prime examples of why a federal mandate is necessary — to guarantee states can overcome hurdles posed by COVID-19, institute the necessary changes, and do so rapidly. Congress must act swiftly and aggressively so state and local election officials can begin preparing now to address these challenges. And without considerable and immediate funding from Congress — the ACLU has recommended $3 billion — a federal mandate alone will not be enough to achieve no-excuse absentee mail-in voting or an extended early vote period in time for this election. In order to safeguard our health and our democracy, there is no time to wait to save our elections. No one should have to choose between protecting their health and exercising their right to vote.
 

How the ACLU Organized to end Racial Profiling on Greyhound Buses

Two years ago, the ACLU set a clear goal: push Greyhound to refuse Customs and Border Protection (CBP) officers access to their buses to conduct warrantless searches. As part of the Trump administration’s immigration crackdown, CBP officers were targeting bus passengers around the country, boarding their buses to racially profile, harass, and too often, detain people who they suspected of being undocumented. Of course, you can’t tell someone’s immigration status by how they look or sound — this practice is unconstitutional and blatantly racist. By pushing aggressively with the help of our membership and partners, we won: CBP changed its policy to reflect the correct legal position, and Greyhound came out publicly to say it would no longer consent to the agency boarding its buses. This is the story of how we secured this victory, and what’s next in our fight to protect bus passengers around the country from racial profiling and harrassment from CBP.
 
For decades now, warrantless searches by CBP have been a problem for people who live and work within 100 miles of an international border or coastline. As CBP has grown into the largest federal law enforcement agency in the country, it has been able to expand its authority, unchecked by any accountability measures. The result is a highly militarized federal police force that is infamous for racially profiling and harrassing communities of color who live in the 100-mile border zone. Some of this harrassment took the form of random and warrantless searches at bus stations and on private bus lines, such as Greyhound. 
 
After Trump’s election in 2016, our affiliate partners reported that these random, warrantless searches of Greyhound buses had become more common. The ACLU went to Greyhound directly, explaining that the Fourth Amendment allows Greyhound to prevent agents from boarding buses and questioning passengers without a warrant or the company’s consent. But for two years, Greyhound maintained that even as a private bus carrier, they had no authority to refuse consent.
 
The ACLU mobilized, putting together a petition signed by more than 111,000 of our supporters. Across the country, we partnered with local organizations and deployed a variety of tactics. We filed lawsuits on behalf of people, including Mr. Sosa and Mr. El Shieky, who had been targeted by CBP’s racial profiling on buses and at stations in Washington. We worked with volunteers in upstate New York and Spokane, Washington to hand out Know Your Rights cards to passengers and remind them of their right to remain silent, regardless of status. We organized to pass local ordinances restricting CBP from bus boarding areas. We called on State Attorneys General offices to investigate the impact Greyhound’s decision not to deny consent had on consumers. We confronted Greyhound again and again.
 
On February 14, a CBP memo that agreed with the ACLU’s longstanding legal position was leaked to the AP. It stated that private bus carriers could refuse to consent to warrantless searches, even within 100 miles of an international border or coastline.
 
Once the CBP memo leaked, Greyhound changed its position. Just a week later, the company announced that it would refuse CBP access to its buses. After the ACLU pushed for more specifics on how this new policy would be implemented, the company delivered. Greyhound specified that it would advise its employees to refuse consent to CBP on buses and in stations and would place stickers on its buses stating this position. Taking their new policy a step further, they announced that they would also send a letter to DHS, clearly stating their new position. These policy changes made Greyhound an important model for other bus companies. Once the company announced its policy change, Concord Coach followed suit.
 
The work at the ACLU is not done. On March 3, Peter Pan Bus Lines, a major Northeast Carrier, announced that they would not be following Greyhound’s lead. In stating their position, the company explained that because their bus routes are concentrated in the Northeast, CBP searches are uncommon. But major Northeast cities such as Boston, New York, and Philadelphia, are all within the 100-mile border zone. By allowing warrantless searches on their buses, Peter Pan is exposing its riders to racial profiling and arbitrary searches and detentions. Peter Pan’s customers and employees deserve the same protections that Greyhound and Concord Coach have implemented.
 
The work to fight for systemic change is never simple — it takes multiple tactics and efforts, and many, many people pushing together in the same direction. Winning often takes years, as this campaign did. But in Spokane, where CBP officers were boarding buses daily, local activists report that they haven’t been there in weeks. In other words, people, regardless of status, can travel freely without fear of interrogation.
 
We know that social justice work is never static. We will remain vigilant and hold Greyhound and CBP accountable for lasting change in our communities. That is what real change looks like.
 
 

We Know Prisons Need COVID-19 Plans. Our Arizona Prison Tour Suggests It’s Not Happening

Earlier this month, the Prison Law Office and the ACLU National Prison Project filed an emergency motion in federal court in Phoenix. The motion asks the judge to order the Arizona Department of Corrections (ADC) to consult with a correctional health care expert to develop a plan to prevent, manage, and treat any COVID-19 outbreaks in the state’s 10 prisons. You might think this is an obvious request, but we’ve spent the last decade observing the Arizona prison system — its conditions are wholly inadequate during normal circumstances and, during a crisis, the conditions are deadly.
 
The emergency motion had two additional requests: that any COVID-19 plan include steps to reduce the density of the prison population, and that the federal court order the state to suspend all policies that interfere with slowing the spread of and treating the virus. Those policies include the requirement that incarcerated people pay for soap and hygiene supplies, co-pays for all requests for medical care, and the prohibition of the use of alcohol-based hand sanitizers in the prisons. Given what we know about the severity of this pandemic, the ways in which it spreads, and the heightened risk level for incarcerated people and staff who work at prisons, these are critical and urgent steps which must be taken immediately. 
 
The motion was filed in the long-running case of Parsons v. Shinn, which challenges the inadequate health care and excessive use of solitary confinement in the Arizona state prison system. The case was settled five years ago — with a settlement that was meant to protect the rights and health of incarcerated people — but ADC has not lived up to its requirements. In June 2018, the district court found ADC in contempt of court and fined the state more than $1.4 million for numerous violations. The Ninth Circuit unanimously upheld that ruling in January of this year.  
 
We filed our current emergency motion after a few other attorneys and I visited the Arizona State Prison Complex in Florence on March 11th and 12th, where we spoke with hundreds of incarcerated people and met with facility health care staff and ADC leadership. Critically, the leadership told us that they did not have a plan in place to detect, prevent, treat, or manage an outbreak of COVID-19. 
 
During the visit we toured crowded, filthy, and unventilated dorms, tents, and Quonset huts that housed elderly, frail men with chronic health conditions and multiple disabilities. Immediately after the tour, the attorneys sent a letter to ADC demanding an immediate review of these conditions and notifying them that we would be turning to the court to intervene. 
 
I visited the Florence prison’s infirmary and special medical housing units. The medical housing unit was really just one big room with 15 to 20 beds side by side, only a few feet apart from one another. Many of the men in the units were bed-ridden, or incontinent. One told me that he hoped that when COVID-19 came to the unit, it would kill him quickly because “I don’t want to live like this.” A different patient with stage IV cirrhosis said, “If the coronavirus comes in here, we’re all dead.”
 
I spoke to a profoundly immunocompromised man in the infirmary who has leukemia, just finished chemotherapy, has to use soap and towels to clean his cell, and has not been provided any education from staff about COVID-19. He expressed to me his concerns and fears that after years of fighting cancer, he would be killed by this viral infection. In a different medical housing unit, none of the men I spoke to knew anything about COVID-19, other than to express their resignation and — in some cases, hope — that they would be dead soon.
 
I toured another unit of the Florence prison that consists of numerous Quonset huts that have been modified to house about 12 people per hut. These huts are stuffy, dimly lit, and numerous elderly men who have serious medical problems or physical disabilities are incarcerated in them. People reported that they had to use their personal supplies of soap and shampoo to attempt to disinfect their living areas, and that they had received no education or information about COVID-19, including the symptoms or how to prevent transmission of the disease. 
 
ADC’s failure to address COVID-19 not only jeopardizes the lives of the people incarcerated in its prisons, but also threatens the community at large, as thousands of correctional, health care, and other staff interact with the incarcerated population every day, and then return to their homes and communities.
 
As I write this, we have learned that ADC just announced it will lift the four-dollar charge for requesting health care by people who have cold and flu symptoms, and it will temporarily lift the charge for soap. This is a step in the right direction, but it is not nearly enough.
 
It is imperative that the leaders of ADC and prisons across the nation are proactively putting plans in place to prepare for COVID-19 outbreaks, which public health experts have repeatedly warned will be highly dangerous to incarcerated people, staff that work at the facilities, and the communities they’re a part of. The ACLU has shared guidance for what such a plan should look like. If further actions are not taken, the Prison Law Office and the ACLU will be watching.
 

The Military Should not be Searching Cars or Checking Documents at the Border

There’s an old saying that goes, “When all you have is a hammer, everything looks like a nail.” This adage is especially applicable to the Trump administration’s approach toward border policy, which is ever more militarized. On March 6th, U.S. Customs and Border Protection (CBP) officials announced that the Department of Defense would deploy 160 active-duty troops to ports of entry at the border — 80 to El Paso and another 80 to San Diego.
 
The deployment is the latest disturbing chapter in the administration’s dangerous and inappropriate record of using the U.S. military at the border. To date, through various operations and at various times, it has expanded military presence by sending approximately 16,000 troops — some of whom have been active-duty service members acting under Defense Department authority and others under state National Guard deployments.
 
In recent months, we witnessed soldiers searching vehicles at primary inspection points at ports in El Paso as well as in secondary inspection areas in the Rio Grande Valley. We’ve also observed troops checking immigration documents in the middle of an international bridge in El Paso. There’s no ambiguity here: The military should not be searching cars or checking documents at ports of entry. These are potentially unlawful actions, and both the Defense Department and CBP must provide answers to how and why these actions are taking place.

The deployments send a message that our government sees people arriving at the southern U.S. border as a hostile enemy force, rather than who they actually are: vulnerable asylum seekers and migrants seeking safety or a better life. And the language the administration has been using to describe the mission of those soldiers is deeply concerning. One memo said they might participate in “a show or use of force (lethal force, where necessary), crowd control, temporary detention, and cursory search.” Troops recently deployed to El Paso and San Diego have already participated in port closure drills that further militarize and terrorize border communities. 

Use of the military to conduct searches or other law enforcement duties threatens this country’s long-standing separation between civilian and military government, which dates to the founding and has been reiterated by Congress in landmark statutes, including especially the Posse Comitatus Act. A core component of that civil-military separation is the general prohibition against the use of the military “to execute the law” unless expressly authorized by the Constitution or an act of Congress.
 
The administration’s use of soldiers at the border should concern every American. The U.S. military has no business taking part in law enforcement activities like these at the border or anywhere else in the U.S. And the actions of troops we’ve witnessed don’t inspire confidence that they’re following Defense Department regulations that are intended to limit their role.
 
The administration’s justification for the 160 troops deployment was unfounded claims that a ruling by a federal court of appeals potentially blocking the administration’s policy of forcibly returning asylum seekers to Mexico required military presence. The Supreme Court has allowed the policy to proceed, but the deployment of troops in response to an unfavorable court ruling is nonetheless troubling. Broadening the use of the military domestically for further unneeded fortification of our ports of entry and the continued expanding of their role raises serious civil rights concerns. 
 
Deploying the military like this isn’t just improper, it’s a misuse of public resources. Retired generals have called these deployments “wasteful” and “dangerous,” and the Border Patrol Union called a past deployment a “colossal waste of time.” The U.S. border is simply no place for the military. 
 
For all these reasons, on March 18, the ACLU’s National Security Project and Border Rights Center sent a letter to the Secretary of Defense and the acting head of CBP raising our concerns with the administration’s expanding use of U.S. soldiers at the border — and the searches we documented. We asked these Trump administration officials to immediately clarify what responsibilities troops have been given at ports of entry and make public all directives and guidance issued to troops about their roles and duties. The military should not be used for law enforcement purposes, and the administration must end this practice now.

Police, Prosecutors, Sheriffs, Parole Officers, and Governors can Help Stop the Spread of COVID-19 — Here’s How

As COVID-19 spreads across the United States, and as more public and private actors take drastic measures to combat this pandemic, it is vital that police, prosecutors, judges, parole officers, and governors also respond immediately by reducing the footprint of the criminal legal system.
 
Public health experts recognize the importance of downsizing jails and prisons as part of the COVID-19 response efforts. Millions of people in prisons and jails eat, sleep, shower, and live in close contact with other people, creating perfect breeding grounds for COVID-19.
 
In response, public health experts have encouraged stakeholders in the criminal legal system to minimize the number of people entering the system in the first place, while also releasing individuals already in prisons and jails who are most vulnerable to the virus.
 
There are about 10 million admissions each year into our nation’s jails, with 650,000 people incarcerated in jails on any given day. Some are in jail because they are serving a sentence of less than a year, but most are incarcerated in jails while they are awaiting their trial, many because they cannot afford cash bail. They can remain incarcerated for weeks, months, or even years, even though they have not been convicted of a crime. During this time, local jails become incubators for COVID-19 because of their confined space and generally poor sanitation.
 
One of the best ways to stop the spread of COVID-19 in jails is to decrease the number of people entering the system. This can be done without compromising public safety, while increasing public health.
 
Police should limit the number of people who are arrested and then detained in jails, even if just for a short time, preventing people from coming in close proximity to other people or in spaces where maintaining hygiene becomes difficult. Police should stop arresting people for low-level offenses, and in many other circumstances can issue citations or desk appearance tickets in lieu of arrest so that people can return home without ever being booked. This will help balance the public safety justifications for arrest with the overwhelming public health concerns presented by coronavirus, and limit the risk of bringing someone who may have the virus into a station and potentially infecting other personnel or first responders.
 
Prosecutors can also use their immense discretion to limit the number of people who are held in jails or other confined facilities by drastically reducing their requests for pretrial detention and carceral-based sentences. Prosecutors should avoid cash bail requests and move for release in all but the very few cases where pretrial detention is absolutely the least restrictive means necessary to ensure a person’s return to court. With a special focus on populations who the Centers for Disease Control has identified as particularly vulnerable, prosecutors should also institute a review-and-release protocol in cases which bail was already sought and the person is currently detained.
 
But the public health response cannot end in jails — it must also include our nation’s prisons, where 1.6 million people live. Reducing the number of people who are currently incarcerated will limit the burdens people face due to incarceration or supervision that place them at elevated risk of being affected by the coronavirus pandemic.
 
Probation and parole agents as well as parole boards must exercise their authority to limit the number of people who are incarcerated or who are forced into public spaces. Agents should cease in-person check-ins to accommodate the need for social distancing, and should allow check-ins to occur by voice or video call. Where those technologies are not accessible to a person under supervision, minimize or temporarily suspend check-in requirements. Additionally, agents should suspend enforcement of any mobility-restricting supervision conditions that impede a person’s ability to seek medical care or to support loved ones who may have COVID-19. Further, limit the number of people being incarcerated by suspending detainers and incarceration for technical (crimeless) rule violations.
 
Finally, governors have a large role to play in the public health response. They have a uniquely powerful ability to stop the spread of COVID-19 and limit the harm it inflicts on communities by decreasing incarcerated populations and creating a culture in which transparency, safety, and the health of all people are the paramount concerns.
 
First and foremost, governors should grant commutations to anyone identified by the CDC as particularly vulnerable and whose sentence would end in the next two years. They should also consider commuting all sentences that would end in the next year, and for anyone currently being held on a technical (crimeless) supervision violation.
 
Importantly, governors should mandate that sheriffs who process these releases coordinate with local service providers and public health experts so that people who may not be able to return home have a safe, accessible place to be that is also close to medical facilities and services. Governors should consider issuing executive orders that seek to achieve these goals, particularly where local system actors are awaiting that guidance.
 
The good news is that some jurisdictions are beginning to take action. San Francisco and Cuyahoga County in Ohio have begun to safely release people from jail due to concerns about coronavirus spreading through the jails. Moreover, 31 prosecutors representing 17 million people have called for the downsizing of jails and prisons as part of the response to COVID-19, including adopting cite and release policies for police, releasing people who are held because they can’t afford cash bail, and reducing immigration detention.
 
One of the best ways to minimize the inevitable spread of COVID-19 in jails and prisons is to decrease the amount of people within the system. Now is the time for bold actions by police, prosecutors, sheriffs, parole officers, and governors to protect people during this public health crisis.
 
 

The Government Has a Secret Plan to Track Everyone’s Faces at Airports. We’re Suing.

U.S. Customs and Border Protection and the Transportation Security Administration are putting us on an extraordinarily dangerous path toward the normalization of face surveillance. But because key facts about this surveillance are still secret, the public lacks the information it needs to hold these agencies to account. We’re suing to bring some much-needed transparency.

Over the past few years, CBP and the TSA have dramatically expanded their use of facial recognition technology at the airport and other U.S. ports of entry. As of June 2019, CBP had scanned the faces of more than 20 million travelers entering and exiting the country. Several major airlines, including Delta, JetBlue, and United Airlines, have already partnered with CBP to build this surveillance infrastructure, and more than 20 other airlines and airports have committed to using CBP’s face-matching technology. The TSA has also partnered with CBP on face surveillance initiatives, with plans to further expand face surveillance to domestic travelers.

Unlike other forms of identity verification, facial recognition technology can enable undetectable, persistent government surveillance on a massive scale. As this technology becomes increasingly widespread, the government can use it to grab unprecedented power to track individuals’ movements and associations, posing grave risks to privacy and civil liberties.

When such a technology is placed in the hands of agencies like CBP and the TSA — which have been caught tracking and spying on journalists, subjecting innocent travelers to excessive and humiliating searches, and targeting and interrogating individuals because of their national origin, religious beliefs, or political views — we should all be concerned. And when those agencies stonewall our requests for information about how their agents are tracking and monitoring everyone’s faces, there is even more reason for alarm.

That’s why today we and the New York Civil Liberties Union filed a lawsuit asking a federal court to order the Department of Homeland Security, CBP, TSA, and ICE to turn over records about the implementation of face surveillance at airports, and their plans to subject travelers to this technology in the future. Our lawsuit seeks to make public the government’s contracts with airlines, airports, and other entities pertaining to the use of face recognition at the airport and the border; policies and procedures concerning the acquisition, processing, and retention of our biometric information; and analyses of the effectiveness of facial recognition technology.

The little we do know about the government’s plans for face surveillance at airports is deeply disturbing.

While CBP today claims American citizens have the right to opt out of its face surveillance system — a claim that doesn’t always hold — DHS recently floated the possibility of mandating face surveillance on all U.S. citizens traveling internationally. After members of Congress and civil liberties groups sounded the alarm, the agency quickly retreated. The full set of reasons for this reversal, however, remain unclear, and the government has left open the possibility that it will in the future make face surveillance mandatory for U.S. citizens entering and exiting the country. Moreover, non-citizens are currently unable to opt out of CBP’s face surveillance — leaving the Trump administration with yet another tool for targeting, harassing, and violating the rights of non-citizens.

We should also be concerned about mission creep. If this technology is normalized at the airport, it’s only a matter of time before the government cites its use at airports as a basis for deploying it elsewhere.

Another problem is the technology itself. Several recent studies have shown that facial recognition technology results in a higher rate of false identifications for people of color. For example, a December 2019 report by the National Institute of Standards and Technology found a higher rate of incorrect facial matches for photos of Black and Asian people, relative to white people. One false match can lead to missed flights, lengthy interrogations, tense immigration enforcement encounters, or worse.

But even if facial recognition technology worked, its use at airports is a dangerous step toward its further deployment in society at large and raises profound civil liberties concerns. The public urgently needs more information about how the government and airlines are using this information, what privacy protections exist, and the extent to which CBP’s and TSA’s use of the technology discriminates on the basis of race or other characteristics.

That we even need to go to court to pry out this information further demonstrates why lawmakers urgently need to halt law- and immigration-enforcement use of this technology. There can be no meaningful oversight or accountability with such excessive, undemocratic secrecy.

This Law Makes Voting Nearly Impossible for Native Americans in Montana

Voting has never been easy for Native Americans living on rural reservations in Montana, which are often geographically isolated, with limited access to postal service and transportation. The passage of the Montana Ballot Interference Prevention Act (BIPA) has made these obstacles even greater, severely inhibiting Native Americans’ access to the ballot. That’s why we’re suing.

In a state where the majority of individuals vote by mail, rural tribal communities often work with get-out-the-vote organizers who collect and transport ballots to election offices that would otherwise be inaccessible. These ballot collection efforts are often the only way Native Americans can access the vote. BIPA would effectively end the practice of ballot collection efforts, and would thus disenfranchise Native American voters en masse.  

The legacy of suppressing the Native American vote

The United States has a long history of suppressing the voting rights of Native Americans. Despite being indigenous to the land, for centuries they were not considered citizens and thus were not afforded the right to vote. Victories for civil rights and civil liberties during the Reconstruction Era, like the Civil Rights Act of 1866, specifically excluded Native Americans. The 14th Amendment also excluded Native Americans since they were not considered citizens at the time of its drafting.

Federal law granted Native Americans citizenship and in turn the right to vote in 1924, but many states — including Montana — continued to actively prevent Native Americans from voting. For example, in 1937 Montana passed a law requiring that all voters be taxpayers. Because Native Americans living on reservations were exempt from some local taxes, they could not register to vote. These laws remained on the books until 1975.

What it’s like to vote on a reservation in Montana

Suppression of the Native American vote is not merely a chapter from our history books. Native Americans continue to face barriers to voting, including in Montana.

Throughout much of the United States, absentee ballots are provided as an alternative method of voting, but in Montana, there’s often no other option. The state conducts local elections by mail only, and even in elections that allow voting in person, the vast majority of Montanans vote by absentee ballot. That’s because in-person voting is logistically challenging for many people who live in remote, rural areas of the state.

Few areas are as remote as Native American reservations. Many reservations lack access to public transportation, which makes it difficult to reach distant county election offices, and those who are able to get there have experienced discrimination. But transportation is by no means a guarantee of accessibility. In Montana, blizzards can begin as early as the fall. During last election season much of the state was covered with up to 40 inches of snow. Nor have satellite polling locations been sufficient to provide equal access to the ballots. These locations are open for only a few days within the 30-day early voting period, whereas election county offices are open for the full 30 days.

It’s not always possible to vote without assistance using an absentee ballot. Many Native Americans living in rural Montana lack home mail service. Non-traditional and informal mailing addresses along with the scarcity of post offices, post office boxes, P.O. boxes, and drop-off mail boxes result in limited access to regular mail. Many people rely on P.O. boxes, but these boxes can be as far as 40 miles away, are irregularly checked, and are often shared between large extended families who pool their mail.

Further, sizable numbers of Native Americans on reservations live in poverty which impedes access to transportation, money for gasoline, and car insurance.

Organized get-out-the-vote ballot collection efforts developed under this backdrop. As part of these efforts, ballot collectors distribute absentee ballots, collect them, and transport them to county election offices.   

The impact of BIPA

BIPA imposes severe restrictions on who can collect ballots and how many ballots can be collected, effectively ending organized ballot collection in rural tribal communities across Montana. Under BIPA, ballot collectors are limited to just six ballots per collector. Organizers would previously collect up to 100 ballots each. 

A violation of BIPA is subject to penalties ranging from $500 per ballot collected to perjury penalties of up to 10 years in prison and $50,000 in fines. These penalties will have a very real and foreseeable chilling effect on ballot collection efforts, and as a result many people on reservations will be unable to vote.

Compliance with BIPA is complicated by unclear definitions about who exactly can collect a ballot. Organizers may or may not fit into its provisions, depending on which interpretation law enforcement officials adopt. 

BIPA’s provisions are also incompatible with Native family structures and relationships. BIPA defines a “family member” as “an individual who is related to the voter by blood, marriage, adoption, or legal guardianship.” But that definition does not reflect family relationships in tribal communities, where family includes members of the extended community.  

Chilling the Native American vote will significantly impact the electorate in Montana. Nearly 70,000 Native Americans live in the state, from tribes including the Blackfeet Nation, Crow, Flathead, Fort Belknap, Fort Peck, Northern Cheyenne, and Rocky Boy. Montana’s last Senate race was decided by only 17,913 votes and notably, one of BIPA’s sponsors is running for election as governor in 2020.

Why we’re suing

The ACLU, the ACLU of Montana, and the Native American Rights Fund (NARF) are suing the state of Montana on behalf of the Native American led get-out-the-vote grassroots activist group Western Native Voice, whose ballot collection initiatives would no longer be possible under BIPA, and three of the tribal nations. The new law violates the state constitutional right to vote,  freedom of speech and freedom of association, and its vague and over-broad restrictions violate due process.

Today, Native communities in Montana aren’t alone in their struggle to vote. Reservations throughout the country lack access to polls and election resources, and the federal government still fails to accommodate nontraditional addresses. And after the U.S. Supreme Court gutted protections in the Voting Rights Act, states with a history of racial discrimination are no longer required to get federal clearance before enacting discriminatory legislation like BIPA.

Voter suppression disproportionately affects minority groups across the country. As a result, minority groups overall have lower turnout rates than whites. Native Americans face unique barriers that impede having a voice in our government.

Our lawsuit seeks to change that by dismantling the additional barriers that BIPA creates — barriers that are unfair, unconstitutional, and hinder the ability of groups like Western Native Voice to reach the communities they serve. Their work is vital as we head into the 2020 election cycle. Every vote should count, and everybody should have a voice.

Keep Calm and Carry on Voting: How to Vote By Mail During the Coronavirus Outbreak

Coronavirus should not be a political issue, but with presidential primaries and the general election coming up, it could soon directly impact our politics. We should protect not only our health, but our civil liberties at this time — and one of those civil liberties is our fundamental right to vote. 

For many, the best way to vote while safeguarding your health during this time may be to vote by mail. It’s easy to request an absentee ballot and there’s still enough time to do so for most states with upcoming primaries. While some states limit who can vote absentee — for example, to people with health issues, disabilities, or other circumstances that may prevent them from voting in person — most states allow anyone to vote this way. If you live in a state with an upcoming primary where it is still possible to apply to vote absentee, find the date by which your application for an absentee ballot must be received and other requirements below.

Remember that public health officials recommend that you not lick absentee ballot envelopes, but instead use a wet sponge or cloth to seal them.

Connecticut** Date of primary: April 28
  • Deadline: Application must be received by April 27; if you fax the form, make sure to also submit the original copy (with a wet signature) by April 28.
  • How to apply: Apply by mail. To ensure faster receipt, fax your application in addition to mailing the original. If you apply after April 22, use an emergency form in addition to your application.
  • Who can vote absentee: Excuse required.
Delaware Date of primary: April 28 Florida Date of primary: March 17 Georgia Date of primary: March 24
  • Deadline: Application must be received by March 20.
  • How to apply: Request by mail, fax, or email to your county Board of Registrars.
  • Who can vote absentee: Everyone.
Illinois Date of primary: March 17
  • Deadline: Application must be received by March 12.
  • How to apply: Request by mail.
  • Who can vote absentee: Everyone.
Indiana Date of primary: May 5
  • Deadline: Application must be received by April 22.
  • How to apply: Request by mail, fax, or email.
  • Who can vote absentee: Excuse required.
Kansas  Date of primary: May 2
  • Deadline: Request between April 3 and April 17. Voters who register as Democrats by March 9 should automatically receive an absentee ballot; the state’s Republican presidential primary has been canceled.
  • How to apply: Request online.
  • Who can vote absentee: Everyone.
Kentucky Date of primary: May 19 Louisiana Date of primary: April 4
  • Deadline: Application must be received by 4:30 PM on March 31.
  • How to apply: Request online or by mail.
  • Who can vote absentee: Excuse required.
Maryland Date of primary: April 28
  • Deadline: Application must be received by April 21 for a ballot to be delivered via mail or fax; by April 24 for online ballot delivery. 
  • How to apply: Request online or by mail, fax, or email.
  • Who can vote absentee: Everyone.
Montana Date of primary: June 2
  • Deadline: Application must be received before 12 PM on June 1.
  • How to apply: Request by mail or fax.
  • Who can vote absentee: Everyone.
Nebraska Date of primary: May 12
  • Deadline: Application must be received by 6 PM on May 1.
  • How to apply: Request by mail or fax to your county election official.
  • Who can vote absentee: Everyone.
New Jersey Date of primary: June 2
  • Deadline: Application must be received by May 26.
  • How to apply: Request by mail.
  • Who can vote absentee: Everyone.
New Mexico Date of primary: June 2
  • Deadline: Application must be received by 5 PM on May 29.
  • How to apply: Request online or by mail (applications will be available in early April).
  • Who can vote absentee: Everyone.
New York Date of primary: April 28
  • Deadline: Application must be postmarked by April 21.
  • How to apply: Request by mail.
  • Who can vote absentee: Excuse required.
Ohio Date of primary: March 17
  • Deadline: Application must be received by March 14.
  • How to apply: Request by mail.
  • Who can vote absentee: Everyone.
Oregon Date of primary: May 19
  • Deadline: Voters will automatically be signed up to receive an absentee ballot upon registration; register to vote by April 28.
  • How to apply: Automatic upon registration; register to vote.
  • Who can vote absentee: Everyone.
Pennsylvania Date of primary: April 28
  • Deadline: Application must be received by 5 PM on April 21.
  • How to apply: Request online or by mail.
  • Who can vote absentee: Everyone.
Rhode Island Date of primary: April 28
  • Deadline: Application must be received by 4 PM on April 7.
  • How to apply: Request by mail.
  • Who can vote absentee: Everyone.
South Dakota Date of primary: June 2
  • Deadline: Application must be received by 5 PM on June 1.
  • How to apply: Request by mail.
  • Who can vote absentee: Everyone.
Washington, DC Date of primary: June 2
  • Deadline: Application must be received by May 26.
  • How to apply: Request online or by mail, fax, or email.
  • Who can vote absentee: Everyone.
West Virginia Date of primary: May 12
  • Deadline: Application must be received by May 6.
  • How to apply: Request by mail, fax, or email.
  • Who can vote absentee: Excuse required.
Wisconsin Date of primary: April 7
  • Deadline: Application must be received by 5 PM on April 3.
  • How to apply: Request online or by mail, fax, or email.
  • Who can vote absentee: Everyone.

For more details on voting absentee, including information on how to request an absentee ballot in-person, visit vote.org. The nonpartisan Election Protection Hotline (1-866-OUR-VOTE) is also available to answer voting questions or to assist if you encounter problems. And remember, once you receive your absentee ballot: don’t lick the envelope.
 
* In nearly all states, individuals can also request an absentee ballot in person. For most states, the deadline is the same. The deadline to apply to vote absentee for the Alaska presidential primary may have already passed for most voters; we suggest you contact the Alaska Democratic Party directly with any questions at 907-258-3050. The Alaska Republican presidential primary contest has been canceled.
 
**Connecticut requires individuals who distribute five or more absentee ballot applications to people outside of their immediate family to register and obtain those forms from a local town clerk.

Police Need a Warrant to Collect DNA We Inevitably Leave Behind

Every two minutes, we shed enough skin cells to cover nearly an entire football field. With a single sneeze, we can spew 3,000 cell-containing droplets into the world. And, on average, we leave behind between 40 and 100 hairs per day. As long as we live in the world and leave our homes each day, we can’t avoid leaving a trail of our DNA in our wake.

Every strand of DNA holds a treasure trove of deeply personal information, from our propensity for medical conditions to our ancestry to our biological family relationships. And increasingly, police are accessing and testing the DNA contained in our unavoidably shed genetic material without judicial oversight. That’s why we’re asking a court to require police to get a warrant before collecting the DNA we unavoidably leave behind.

Warrantless access to unavoidably shed DNA is just one part of a troubling trend in police investigations involving DNA. Already, in more than 60 criminal cases across the country over the last two years, police have uploaded DNA evidence found at a crime scene to enormous consumer genetic databases — such as GEDmatch and FamilyTreeDNA — in order to search for family members of a possible suspect. The databases often return likely relatives as distant as the suspect’s third cousins. Using this list of likely relatives, police start building out massive family trees based on marriage certificates, death records, and more.

Police then pare the tree down, usually by age and location, in order to identify a likely suspect (or several). Finally, police follow the suspects around until those individuals discard items containing their DNA — anything from a Baskin-Robbins spoon to a napkin to a colostomy bag adhesive patch. Without getting a warrant from a judge, police extract and test the DNA on those items, and use the resulting genetic profile to determine whether that suspect’s DNA matches the original crime scene evidence.

This practice raises profound civil liberties and privacy concerns. Law enforcement is searching through databases of thousands upon thousands of people’s highly revealing DNA profiles, and then surreptitiously collecting and testing people’s DNA without the protections and constraints of a warrant.

In a friend-of-the-court brief we filed this week together with the ACLU of South Dakota and the Electronic Frontier Foundation, we argue that law enforcement must first get a warrant before extracting and analyzing unavoidably shed DNA. The genetic blueprint we inadvertently leave behind as we discard coffee cups, toss crumpled tissues, spit out gum, or even lose hair is entitled to the full protection of the Fourth Amendment.

In the case at hand, State v. Bentaas, a South Dakota state criminal case, South Dakota police sent a DNA sample to Parabon Labs, which created a genetic profile and then ran it against GEDMatch’s database of over one million genetic profiles. The lab uncovered a few family names in South Dakota’s Sioux Falls and Hutchinson County areas and identified possible third cousins. Using this information, South Dakota detectives embarked on their own research to build out a family tree. Eventually, based on these findings, investigators identified the defendant, Ms. Bentaas, as a possible suspect.

Without first obtaining a warrant, investigators went to Ms. Bentaas’s residence and took garbage left outside for the trash collector. From the trash bag, police retrieved cigarette butts, cotton swabs, Kleenex with hair, earplugs, water bottles, glass bottles, beer cans, and dental floss. The government then extracted and analyzed the DNA found on these items. Based on the results, investigators arrested Ms. Bentaas.

To defend its warrantless search and seizure, the state is asserting that people do not have a reasonable expectation of privacy in their trash, and, therefore, people also do not have a privacy interest in the DNA they leave on discarded items. The government’s argument relies on a decades-old, flawed precedent holding that when we leave our garbage on the curb to be collected, we relinquish our Fourth Amendment privacy rights in the items contained in our opaque trash bags.

Whatever the merits of that rule as applied to physical items in the trash, it should not be stretched to permit warrantless searches of DNA. As the Supreme Court recently made clear in Carpenter v. United States, a case argued by the ACLU, old rules permitting warrantless searches cannot be automatically extended to new police capabilities made possible by modern technologies. The scope and types of information that might be discovered through a search of one’s physical trash pale in comparison to the deeply sensitive and highly personal information our genetic blueprints can reveal. And though people might sometimes be able to avoid discarding certain physical items, they cannot avoid shedding DNA on virtually every surface and object they touch. Our DNA requires greater protections under the Fourth Amendment.

The implications of the government’s argument are chilling. If police are allowed to surreptitiously extract and sequence our DNA without a warrant anytime they wish, there is little stopping them from grabbing every person’s trash, secretly extracting our DNA from it, and building a massive database containing our most sensitive genetic information. Already, local law enforcement officers have tried to track anti-pipeline protesters by swabbing cigarette butts left behind at protest sites. 

As our ability to decode DNA improves, the scope of sensitive, private information that is discernable will only increase. As it does, so will the need for strong Fourth Amendment protections to keep this information safe from warrantless searches and unconstitutional intrusion.

San Diego Police Stop Black People at a Rate 219 Percent Higher Than White People.

“They did what human beings looking for freedom, throughout history, have often done. They left.”

These are the words of Pulitzer Prize-winning author Isabel Wilkerson in her book, “The Warmth of Other Suns.” The book follows the story of three Black Southerners and their journey escaping racial violence — a sharecropper’s wife who left Mississippi in the 1930s for Chicago, an agricultural worker who left Florida for New York City in the 1940s, and a doctor who left Louisiana in the early 1950s.

Their journey was part of the Great Migration that occurred between 1916 and 1970, where 6 million Black people moved out of the rural South to the urban Northeast, Midwest, and West. As a native Texan moving to Southern California, I was curious to learn more about the experience of Black Southerners who moved here before me. I learned that this region held promise of safety and security for Black people escaping the ever-present threat of violence and death in the South. But as Black families found out then and Black communities today know all too well, while the warmth of San Diego’s sun might be gentler than the heat of the South, they both cast the familiar shadow of racial violence that Black people across the country can’t escape.

As a policy associate for the ACLU of San Diego & Imperial Counties, I advocate for policies that advance police accountability. Recently, our office commissioned a report by Campaign Zero that looked at data from the San Diego Police Department and the San Diego County Sheriff’s Department and analyzed it for racial and identity disparities.

Here is what the report found:

The San Diego Police Department (SDPD):

  • Stopped Black people at a 219 percent higher rate than white people. In 85 percent of SDPD beats, Black people were stopped at higher rates than white people.
  • Was 23 percent more likely to conduct consent searches on Black people than white people, despite being less likely to be found with contraband than white people.
  • Was more likely to use force and even more severe forms of force against Black people than white people.

The story was not any better at the county level. The San Diego County Sheriff’s Department:

  • Stopped Black people at a 130 percent higher rate than white people. In every area of jurisdiction, Black people were stopped at higher rates than white people. 
  • Was 19 percent more likely to search people they perceived to be LGBTQ or gender non-conforming and 38 percent more likely to arrest them without a warrant compared to people who were not perceived to be LGBTQ or gender non-conforming. This disparity was particularly worse for the Black people in this demographic.
  • Used more severe levels of force against Black people and Asian/Pacific Islanders.

This is the reality that Black San Diegans, Black Californians, and Black Americans face on a daily basis. Our movement and freedom is policed more often and more severely than our white neighbors. The sad irony about Black people and families that moved to California to escape violence during the Great Migration is that they and their descendants now live in a state with the most civilian deaths caused by police violence. Of those killings, Black people are disproportionately represented.

A recent study found that nationwide, 1 in every 1,000 Black men can expect to be killed by police. In fact, 13 of the 100 largest U.S. city police departments kill Black men at higher rates than the U.S. murder rate.

Although police brutality and killings of civilians have incredible human costs, there is tremendous harm, both physical and psychological, inflicted by even the most routine police activity. Across the country, law enforcement agencies regularly monitor, harass, profile, stop, search, question, detain, and arrest Black people at rates completely disproportionate to their population.

Just as laws were used to respond to the violence of Jim Crow, we also need laws that protect Black communities from racially disparate policing. California has begun to make headway in this regard by passing AB 392: The California Act to Save Lives, which created a higher, “necessary” standard for when police can use force. Now, we need to raise the standard for when police can stop and search people — in California and across the country.

America has begun to begrudgingly recognize Black people’s humanity, freedom, and civil rights. And yet, there is still so much work to do. When I feel discouraged by the slow progress of racial justice, I find comfort in the words of the Black National Anthem, written just before the start of the Great Migration.

It goes:

Sing a song full of faith that the dark past has taught us,

Sing a song full of hope that the present has brought us,

Facing the rising sun of our new day begun,

Let us march on till victory is won.

From calling on city leaders to address biased policing to fighting law enforcement’s use of intrusive surveillance technology (i.e., smart streetlights), San Diegans — in solidarity with communities across the country — are marching boldly, loudly, and unapologetically toward that day where freedom also includes freedom of Black movement.

Are Our Prisons and Jails Ready for COVID-19?

The country and the world face a public health emergency in the new coronavirus causing COVID-19. The media is filled with concerns about how we will respond. Will we close schools? Cancel sporting events and other large gatherings? Work from home? Avoid public transportation?

But little has been said about one of the most vulnerable sectors of our population: the people in our prisons and jails. Although people often think of prisons and jails as closed environments, they are not. Medical staff, correctional staff, and visitors come from the community into the facilities every day and then return home. People are admitted to and released from prisons and jails, and they go back and forth to court and to medical appointments. There is ample opportunity for a virus to enter a prison or jail, and for it to go back out into the community.  

Once a contagious illness enters, conditions in correctional facilities are highly conducive to it spreading. People in prisons and jails live in close proximity to each other. Many are housed in large dormitories, sharing the same space. Even where people are housed in cells, the ventilation is often inadequate. People in prisons and jails are often denied adequate soap and cleaning supplies, making infection control nearly impossible.

Many people in prisons and jails are in relatively poor health and suffer from serious chronic conditions due to lack of access to healthcare in the community, or abysmal healthcare in the correctional system. While people sent to prisons and jails tend to be young, the harsh sentencing policies of recent decades mean that the prison population is aging. Medical staff are generally stretched thin even in the best of times. Though incarcerated people have a constitutional right to adequate medical and mental health care, the reality is they too often do not have access to it.

All this means that prison and jail populations are extremely vulnerable to a contagious illness like COVID-19. Moreover, prisoners have fewer options for protecting themselves and others. They don’t have the option to stay away from other people when they are sick. They can ask for medical attention, but prisons and jails have few infirmary beds and fewer rooms for medical isolation.

If medical staff become ill or have to be quarantined, there will be even fewer people available to provide care. If correctional staff become ill or need to be quarantined, there will be fewer officers available to bring sick people to hospitals, to the infirmary, and even just to keep an eye on who in the facility is showing signs of illness.

To limit outbreaks of COVID-19 in jails and prisons, officials must act, and they must act quickly. They should coordinate with local public health officials to determine the most appropriate measures to take, given the local conditions and the peculiarities of the correctional environment. While the plans will differ from facility to facility, there are points that should be addressed in any plan:

  • How will all people in the facility — incarcerated people, staff, and visitors — be educated so they can understand the risks, protect themselves, and protect others? This will ideally be operationalized and conducted at scale.
  • Under what circumstances will staff and people incarcerated in the facilities be tested for the virus? How many tests are needed?
  • If people who are incarcerated require quarantine and/or treatment, how will that be accomplished? 
  • If medical staff must be quarantined or become ill, how will the facility monitor, quarantine and treat the prison or jail population?
  • If correctional staff must be quarantined or become ill, how will the facility operate, both in terms of addressing the virus and in terms of simply maintaining necessary services, safety, and security?
  • If incarcerated people must be quarantined or become ill, how will the facility continue necessary operations that are reliant on the prison or jail population, such as food preparation?
  • Are there particularly vulnerable populations, such as the elderly, or immunocompromised, and how can they be protected?
  • How will the facility meet the challenges of COVID-19 without violating the rights of the people in its custody?

People in government custody, including in prisons, jails, and civil detention, are often forgotten in emergencies. This creates unnecessary suffering and loss of life. We have the opportunity to take steps now to limit the spread of the virus in prisons, jails, and detention centers. But the time to act for the health of those incarcerated, and for the broader community, is now. 

Our Protest Rights Are in The Supreme Court’s Hands

Since this country’s founding, when we’ve had something to say, we have taken to the streets. We’ve come together to celebrate our identities, to protect our land and our communities — and to push for change following injustice and tragedy. But if a recent decision from the Fifth Circuit Court of Appeals involving a Black Lives Matter protest is left standing, the right to protest will be in serious jeopardy.

That is why, today, we’re asking the Supreme Court to take the case.

The Fifth Circuit decision stems from protests that erupted in Baton Rouge, Louisiana after two white police officers shot and killed Alton Sterling, a Black man, on July 5, 2016. In the days that followed, people took to the streets to make clear that Black lives matter. They came together to express outrage, to call for accountability and justice, and to demand change.  

Police responded not by engaging with the substance of protestors’ calls, but with riot gear, excessive force, and illegitimate arrests. And one police officer brought a civil suit for monetary damages based on allegations that, in the midst of the protest, someone (we don’t know who) threw something (we don’t know what) and hit the officer (we don’t even know his name). The one thing we know with certainty — and based on the officer’s own allegations — is that the individual the officer sued is not the person who threw the object, but our client, DeRay Mckesson — an activist who was there to add his voice and to amplify others.

The district court that first reviewed the case correctly dismissed it as violating a core tenet of the First Amendment: that, in the context of a protest, individuals cannot be held liable for the unlawful, unintended acts of others. But, after the officer appealed, the Fifth Circuit issued a baffling and deeply concerning order that ignores that principle and, in doing so, puts all of our free speech rights at risk. The court concluded that a protester could be held liable for the foreseeable, but unintended, unlawful actions of a fellow protester. If allowed to stand, the precedent could signal the end of protest.

The Fifth Circuit panel first concluded that Mckesson had no control over the individual who threw the object, and had not intended for the object to be thrown. Yet the judges concluded that Mckesson could be liable for the officer’s injuries.

Why? Because, during the protest, Mckesson (according to the judges’ reading of the officer’s allegations) directed others onto the street in front of police headquarters, purportedly in violation of a Louisiana law. Because that act was allegedly not protected by the First Amendment, the panel reasoned that Mckesson could be liable for any harm that followed — including another person throwing an object at an officer — as long as it was foreseeable. And, the panel concluded, it was foreseeable: As soon as people stepped out onto the street, police officers would inevitably come to enforce Louisiana’s laws, and that was enough to expect that violence could occur.

This logic is not only flawed, but also reveals a dismal view of police-citizen interaction. Even if law enforcement does often respond to protests with excessive force, that is not something courts should accept — or protesters or police should expect — as a given.

And the court’s flawed reasoning is also dangerous for another reason. It means that, in the Fifth Circuit at least, protest leaders can find themselves on the hook for an unlawful act they did not intend, committed by an unidentified person they neither knew nor controlled.

To be clear, the First Amendment typically does not protect someone from liability for breaking the law, even if they did so for political reasons. That means that, had someone sued Mckesson for delaying traffic, he may have been liable. Equally, had the officer sued the individual who threw the object, the officer’s case would have been able to proceed without threatening speech rights. But, in the context of a protest, the allegation that Mckesson unlawfully impeded traffic cannot suffice to make him liable for the independent, unintended act of the object-thrower.

The Supreme Court made this clear in 1982. While the Constitution does not protect violence, the Court held, it does limit the government’s ability to place responsibility for that violence onto peaceful protesters. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests.

The Fifth Circuit’s opinion risks undoing all of that. Under the Fifth Circuit’s theory, a police officer — or, equally, a counter-protester — need only allege that a protest organizer directed or enabled other protesters to do any illegal thing, from overstaying a permit in order to pack up, to pumping the volume up a little too loud, to conducting a sit-in that obstructs access on a sidewalk or constitutes a trespass. Countless potential plaintiffs could argue that their injuries — sprained ankles, broken windows, extreme stress — probably would not have occurred had the protest not been at that place at that time, or had police or counter-protesters not responded as they did.

With these costly risks, who would be willing to lead a protest? And, if, in a court’s view, the likelihood of police presence is enough to make protesters liable for violence, nearly any protest could lead to incalculable damages for organizers. Police presence is expected at the vast majority of protests, especially those that draw large crowds or focus on issues of public controversy.

Had this been the rule throughout our history, those leading this country’s seminal protests — from the celebrated civil rights protests of the 1960s to the anti-war protests of the 1970s — could have faced ruinous lawsuits. And, under the Fifth Circuit’s logic, advocates who were prosecuted for violating laws that, once they reached the Supreme Court, were deemed unconstitutional could equally have been burdened. In other words, the same individuals who established core First Amendment precedent — and who the Supreme Court held could not be criminally prosecuted — could have found themselves facing huge civil judgments for their advocacy, including at segregated lunch counters and libraries.

Thankfully, this isn’t how the Supreme Court has ever looked at rules of liability in the context of protected expression. And the Supreme Court should take this opportunity to make clear that it’s not how it looks at those rules now. Otherwise, we may find our streets much emptier.  

Trump is Sending Special Forces-style Agents into Pro-Immigrant Cities

As part of its campaign of intimidation against state and local governments that choose not to collaborate with Immigration and Customs Enforcement (ICE), Trump administration officials have confirmed plans for  two new tactics in their anti-immigrant agenda. The Department of Homeland Security (DHS) will deploy Border Patrol’s special forces-style unit, known as BORTAC, and other Customs and Border Protection (CBP) agents — dressed in plainclothes — into Chicago, New York City, San Francisco, Los Angeles, Atlanta, Houston, Boston, New Orleans, Detroit, and Newark. And it is reportedly launching Operation Palladium, enlisting 500 special agents for an “enhanced arrest campaign” designed to “flood the streets” of these same cities.

The potential target list is much longer. The Trump administration claims that it needs to deploy BORTAC and other special agents to so-called “sanctuary cities” where, as DHS has said, “our officers are forced to make at-large arrests” — rather than take custody of individuals from state and local law enforcement who honor ICE hold requests (also known as detainers.) But nearly a quarter of all counties in the U.S. now restrict or refuse altogether to honor those hold requests from ICE according to the Immigrant Legal Resource Center, making them all potential targets for the administration’s attacks.

In one sense, these announcements are pure political theater, designed to look tough and stoke fears of immigrants during an election year.

In another sense, they are part of a very real attack on the prerogatives of state and local governments to focus their resources on local public safety and welfare needs, rather than on federal immigration enforcement.

Under the anti-commandeering principle of the Tenth Amendment, the federal government cannot force states to participate in a federal regulatory program, including by requiring states to use their resources for it. Local officials are right to reject detainers, which can violate the Fourth Amendment and are often riddled with errors. ICE has, for example, wrongly issued detainers for thousands of U.S. citizens, resulting in U.S. citizens being detained and processed for deportation.

The Trump administration first announced the BORTAC deployment on February 14, calling it a “national security” measure. Then last week, officials tried to downplay it. In classic double-speak, Acting CBP Commissioner Mark Morgan told Congress: “We have 100 individuals, 50 officers, 50 agents. They’re all volunteers. Some of them just happen to also be BORTAC agents. But there’s no BORTAC element.” He also revealed for the first time that last year BORTAC had joined “over 70 operations” with ICE. 

There’s much we still don’t know about how BORTAC will work with ICE. What we do know are some of the risks of further militarization of our streets. BORTAC agents are specifically trained for high-risk enforcement operations domestically and abroad. They operate in border communities that are already highly militarized. They receive additional weapons, such as stun grenades, and enhanced Special Forces-type training, including sniper certification. BORTAC “acts essentially as the SWAT team of the Border Patrol.”

“In short, BORTAC personnel are not meant to focus on routine operations in some of the United States’ largest cities, and there is no need for them to be part of these operations,” Senators Elizabeth Warren and Ed Markey wrote. That’s why nearly 70 members of Congress have already written DHS expressing concern.

It is all too easy to imagine BORTAC agents further escalating situations where ICE agents are already known to use excessive force, including arrests at courthouses and worksite raids. And with Acting Secretary of Homeland Security Chad Wolf’s announcement that these SWAT-like agents would be dressed in plainclothes ⁠— disguising officers trained for special operations to navigate communities undetected— that risk will be heightened further. 

In border communities, unaccountable CBP officers have repeatedly committed serious abuses. At least 94 people have died following CBP encounters since 2010, including in shootings, car chases ending in deadly crashes, and when CBP officers forced a young man to drink liquid methamphetamine. CBP claims unconstitutional authority to search and seize nearly anyone within the 100-mile border zone, raising a litany of civil rights concerns.

ICE and CBP do not view themselves as accountable to Congress or the public. Police who work with these agencies risk being associated with their abuses. And local collaboration with federal immigration enforcement is bad for public safety: It destroys trust between law enforcement and local communities, as people fear that by interacting with police – reporting a crime tip, acting as a witness, seeking protection as a victim – they or their loved ones will end up being taken away by ICE. The Major Cities Chiefs Association, the Presidential Task Force on 21st Century Policing, and attorneys general from New York, Oregon, Washington, Rhode Island, and DC and local law enforcement leaders from across the country have come out against local police entanglement with ICE.

Bottom line: Ramping up immigration enforcement makes local communities less safe. State and local governments are right to enact policies that protect immigrants and citizens alike from the Trump administration’s intimidation. ICE and CBP need to be reined in — not unleashed and let loose on our cities.

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