March/April 2012 - an ACLU of Rhode Island Newsletter

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March/April 2012 Newsletter

Volume: XVIII, Issue Number: 2

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Newsletter Contents

ACLU Files Lawsuit Over Immigration Agency's Unlawful Detention of U.S. Citizen

The ACLU has filed a lawsuit in federal district court on behalf of a North Providence resident who has twice been detained as a deportable “alien” even though she is a U.S. citizen. The lawsuit alleges that federal Immigration and Customs Enforcement (ICE) officials and Rhode Island officials often bypass Constitutional requirements and safeguards when they detain individuals on immigration grounds.


In May 2009, Ms. Ada Morales, who was born in Guatemala and who naturalized as a United States citizen in 1995, was taken into custody and had an ICE “immigration detainer” lodged against her. Even though a judge ordered Ms. Morales released, the RI Department of Corrections held her in custody for an additional 24 hours because of the ICE detainer. “When I found out that I was being detained for immigration reasons, I was shocked,” said Ms. Morales. “I told the Rhode Island officials that I’m a U.S. citizen, and I offered to show them my naturalization certificate and passport, but no one would listen. They just assumed I was a deportable alien because of my Guatemalan background and the color of my skin.” An ICE official later apologized to Ms. Morales for her wrongful detention, but acknowledged that it could happen again. In fact, she had been unlawfully detained in virtually identical circumstances once before, in 2004.


An ICE detainer is a document that advises law enforcement officials that ICE may seek to take an individual into custody for deportation purposes once state or local custody ends. As has happened with Ms. Morales on two occasions, ICE officers and state and local law enforcement officials typically treat a detainer as authorizing continued imprisonment, even if no state or federal charges are pending and no deportation proceedings have been brought. Yet, unlike a criminal warrant, immigration detainers are issued by ICE itself, and are not based upon a probable cause determination by a neutral judicial officer.


The lawsuit claims that federal and state officials violated Ms. Morales’s constitutional rights to due process, equal protection of the laws, and freedom from unreasonable searches and seizures, and seeks injunctive relief and damages for violation of her rights. It alleges that ICE officials issue detainers “without a sufficient investigation to determine whether arrestees who are perceived to be ‘foreign’ (based on their place of birth, race or ethnicity, foreign-sounding last names, and/or English language ability) are in fact U.S. citizens, despite knowing that this will adversely affect naturalized U.S. citizens on the basis of their race, ethnicity, and/or national origin.” The suit also claims that ICE has “deliberately obfuscated” the legal effect of detainers “for years, leading local and state officials to believe that they are required to continue detaining individuals on the basis of immigration detainers” even though detainers are requests, not commands.


The suit is being handled by RI ACLU volunteer attorneys Mark Freel and Erika Lindberg, and National ACLU attorneys Omar Jadwat and Kate Desormeau.

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From the Desk of the Executive Director

It would be difficult for me to count the number of times I have heard — both from the right locally and from media nationally — what a “liberal” state Rhode Island is. That is a tricky word to use in any event, but the fact of the matter is, at least when it comes to some of the key civil liberties issues of our times, our state remains ingloriously behind the pack, at least when compared to the rest of New England, and even the Northeast.


I encourage you to visit our website or Facebook page and look at a series of very revealing maps we’ve posted. On some of the hottest civil liberties issues raging across the country right now — including voter ID, marriage equality, and state involvement in immigration enforcement, Rhode Island pales behind most of its New England neighbors. The maps provide a vivid visual record of this fact.


This is not to say that the civil liberties issues we face in Rhode Island match, say, the struggles that ACLU affiliates in the Deep South encounter. Yet it is useful to realize every once in a while that we could be doing a lot better — and our neighboring states show us how.


Although we still have a long way to go, I am hopeful that, with your continued support, we can someday soon make our state the one that our New England neighbors look to for civil liberties enlightenment. Wouldn’t that be nice?


— Steven Brown

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ACLU Sues Central Falls Receiver; Alleges Unlawful Exercise of Powers

The RI ACLU has filed a lawsuit against Central Falls Receiver Robert Flanders, Jr., charging that he has unlawfully delegated to an appointed hearing officer powers that are afforded only to him under the state law authorizing his appointment. 

The issue was brought to the ACLU’s attention in January when residents complained about the receiver’s enactment (subsequently suspended) of an ordinance restricting on-street parking in the city. In investigating the complaints, the ACLU learned that the receiver was not even present at the “council” meetings where the ordinance was approved. Rather, his “hearing officer,” Gayle Corrigan, presided at the meetings and made the motions approving the ordinance. In a letter to the receiver, the ACLU argued that he had no authority to delegate these responsibilities to a third party, but the receiver disagreed, prompting the lawsuit.

Last year, in upholding the constitutionality of the statute creating the Receiver mechanism, the RI Supreme Court noted that “the receiver may exercise the powers of an authority or office to the limits of that authority or office, and no further.” The lawsuit argues that the receiver has instead exceeded the powers of the City Council, whose members have no authority to pick surrogates to act and vote in their place at council meetings.

The lawsuit, filed by RI ACLU volunteer attorney Jennifer Azevedo, alleges that, as a result of the receiver’s conduct, residents “have been denied their right to due process and their right to petition the government for the redress of grievances, as the ‘hearing officer’ is neither their elected official nor is she the receiver duly appointed by the State to act in place of elected officials.”  The suit also claims the receiver has violated the Open Meetings Act by “failing to convene and preside over public meetings or take official actions at those public meetings.”

ACLU attorney Azevedo said: “It is dubious enough that the receivership law disenfranchises the entire electorate of Central Falls, replacing the Mayor and City Council with a Receiver, but to then have that Receiver delegate the duties of those elected officers to a third party is utterly unacceptable.”  Central Falls resident Shaunne Thomas, the suit’s plaintiff, added: “As an African American woman, I especially cherish my First Amendment rights, my right to due process, and my right to vote for my leaders. After hundreds of years of my people being denied these rights, I cannot sit by quietly and watch an appointed receiver abuse my rights.”

The RI ACLU testified against passage of the receivership statute in 2010 on the grounds that it disenfranchised an entire electorate, and has continued to object to the broad powers assumed by the receiver in Central Falls.

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Two School Districts Sued for Violating Open Records Law

The ACLU has taken legal action against the Pawtucket and Little Compton school districts for violating the state’s open records law. The lawsuit, filed in Superior Court by ACLU volunteer attorney Karen Davidson, charges that district officials in each of these districts unlawfully failed to respond to two requests from the ACLU for public documents.

In November 2011, the ACLU filed two formal Access to Public Records Act (APRA) requests with every school district in the state. One request sought documents relating to the use of internet filtering on school computers. The ACLU is examining different school policies and procedures for censoring Internet content on computers used by students during the school day. A second request, filed simultaneously, sought information about school resource officers, including policies and standards setting out their role and responsibilities in the schools using them.

Neither Pawtucket nor Little Compton responded to either request. In January, the Affiliate sent follow-up letters to both school districts requesting the documents. Again, the ACLU received no response, prompting the lawsuits, which contend that the districts’ failure to respond or to provide the records constitutes a clear violation of APRA.

ACLU attorney Davidson said: “There is no excuse for a public agency to ignore requests for public documents like this. If a legal organization like the ACLU is treated this way, one can only imagine how regular citizens are treated in seeking access to public records.”

The ACLU received responses from all other districts, and is currently reviewing the materials that have been received.

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ACLU Sues Over Latest Harassment of URI Students by Narragansett Officials

The ACLU has filed a lawsuit against the Town of Narragansett in what the Affiliate calls the latest attempt by the town to unnecessarily harass URI students living there. The suit, filed in Superior Court by ACLU volunteer attorney H. Jefferson Melish, is on behalf of three URI pharmacy graduate students who have received tickets for parking their cars overnight on their street even though they have a permit to do so.


The three plaintiffs – Caitlin Dowd, Grace Rignanese and Jenessa Redfern – have been renting a house on Narragansett Avenue with a nine-month lease. Last August, the Town Council approved an ordinance limiting overnight parking on portions of that street to “permit holders.” A month later, the three students obtained permits allowing them to park overnight in accordance with the ordinance. In mid-October, however, they started receiving notices on their car windshields that overnight parking was limited to “permanent residents,” defined in the notice as persons who had leases of twelve months or longer. The ordinance itself makes no such distinction.


After receiving tickets, they complained to chief of police Dean Hoxsie, who advised the students that “the Ordinance had to be amended after the town solicitor provided an opinion that a ‘resident’ was someone that holds at least a 12 month lease or resides permanently in the town.” In fact, however, there is no documentation of any amendments made to the ordinance that limits permit holders to so-called “permanent” residents.


The lawsuit argues that the arbitrary and “extra-legal” enforcement of the ordinance against them violates the students’ constitutional rights to due process and equal protection of the law. The Town achieved some notoriety a few years ago when it adopted an ordinance, largely upheld by the courts and aimed at URI students, authorizing the placement of large orange stickers on houses declared to be a “nuisance.” More recently, it adopted an ordinance, over the objections of the ACLU and the Coalition Against Domestic Violence, allowing police to charge residents for “response costs” when going to a house to investigate called-in complaints.

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2012 Mid-Session Legislative Report: A Look at Anti-Civil Liberties Legislation

Our last newsletter covered proactive legislation the Affiliate is pursuing this session.  For every good bill, there are many more, covering a vast spectrum of topics, that threaten to seriously erode civil liberties.  As this newsletter went to press, the General Assembly had held committee votes on very little of the legislation under consideration this year. As such, some of the major civil liberties battles of this session remain to be seen, but here are a few we know about.  

Privacy

Prescription Monitoring (S 2763)
 The Affiliate is opposing legislation before the Senate Health and Human Services committee which would require the recording of electronic prescriptions in a prescription monitoring database, accessible to non-medical parties including law enforcement with little regulation or oversight. Currently, prescriptions for certain highly-regulated medications, including those with a great potential for misuse and dependence, are recorded in this database, which is accessible by law enforcement with nothing more than an affidavit stating that access to a patient’s prescription records are part of an active investigation. This legislation would require the recording of all prescription drugs, resulting in a database containing the drug information of hundreds of thousands of Rhode Islanders. The Affiliate is actively working to oppose the bill, and to encourage the General Assembly to implement privacy protections not currently in the law.


License Plate Scanners (H 7679/S 2251)
 Continuing on a path of surveillance introduced for purposes of administrative convenience, the General Assembly is considering legislation to authorize the installation of license plate scanners on police cruisers. Billed as a way to discover and penalize uninsured motorists, this legislation will result in the installation of cameras that would constantly scan and record the license plates of every car on the street. In addition to checking for insurance information, the scanners have the capacity to record the GPS location of every car and to share that information. In a unique alliance, the Affiliate, the Department of Motor Vehicles, and the State Police testified in opposition to this legislation before the House Corporations Committee in April; a Senate hearing is expected soon.


Criminal Background Checks
 The Affiliate has already provided testimony on a spate of bills requiring criminal background checks for employees of a large number of organizations, with varying guidance in the bills as to what information is to be disclosed, to whom, and what the consequences shall be. Specifically, the Affiliate has testified in opposition to legislation requiring criminal background checks for school mentors and school volunteers regardless of their level of interaction with the students; employees and volunteers of fire departments; and anyone who provides any kind of service to any child, whether employed, self-employed, or a volunteer. The Affiliate is also facing return legislation requiring background checks for anyone working in a long-term care facility or providing personal care services – even, potentially, people receiving federal reimbursement funds to care for their own family members.

Criminal Justice

Computer Crimes (H 7042/S 2647) 
Returning this year is a bill creating new criminal offenses relating to internet activity, and drastically overhauling the definitions of old offenses. In February, the Affiliate testified before the House Judiciary Committee that the breadth of the legislation could result in criminalizing actions clearly protected by the First Amendment, such as commenting online on controversial topics or running a satirical website. A Senate hearing on a companion bill is forthcoming.


“Good Time” Sentence Reductions (H 7112, S 2179)
 The General Assembly is again considering restrictions on the ability of some prisoners to accrue “good time” sentence reductions. Similar legislation, introduced in direct response to the release of Michael Woodmansee after serving 28 years in prison, passed the Senate last year but failed to progress in the House. In addition to promoting good behavior by inmates, “good time” provides an important incentive to prisoners to participate in treatment and educational programs, potentially reducing their recidivism rates. This bill would drastically undermine a program put into place four years ago with support from the Governor, Attorney General, Department of Corrections and Parole Board, to address serious overcrowding within the prison. Over the opposition of the Affiliate and the Public Defender, the Senate has again passed this legislation; it is currently under consideration by the House Judiciary Committee.


DNA of Arrestees (H 7056/S 2061) 
Another familiar piece of legislation seeks to require the collection of DNA samples from any individual arrested for any crime of violence. Under current law, DNA may only be collected from individuals convicted of certain felonies. In February, RI ACLU volunteer attorney Kate Godin testified before the Senate Judiciary Committee that this new practice would fly in the face of the presumption of innocence, and would be a dangerous step toward the creation of a DNA database cataloging every person in the nation. This legislation has died in House committee for the past two years, but its proponents continue to push actively for its passage.


Sex Offender Registration (H 7075, S 2572)
 The federal Sex Offender Registration and Notification Act (SORNA), which the Attorney General is again seeking to implement in Rhode Island, includes overly stringent notification requirements, lasting consequences for juvenile offenders, and retroactive registration for former offenders. In light of the burdens and tremendous fiscal costs associated with SORNA’s implementation, several states have actively refused to implement the federal law. The Affiliate has testified that notification laws ignore the reality that over 90% of sex offenses are committed by family members or friends, not strangers, and that detailed registration and notification requirements are thus a costly and punitive diversion that deters rehabilitation and reintegration of sex offenders.

Free Speech

Campaign Finance (H 7859/S 2569) 
Purportedly aimed at regulating and bringing transparency to “super PACs,” campaign finance legislation under consideration would have serious ramifications for many small non-partisan and non-profit agencies that have no significant involvement in the electoral arena. Under this bill, any non-profit organization that even mentions the name of an elected official on their website too close to an election will be required to file onerous reports detailing their donations and expenditures; if they have spent as little as $250 on a newsletter mentioning an elected official, they will be required to publicly disclose the names of donors. The Affiliate and other non-profit organizations have raised concerns about the bill’s impact on their free speech rights and the privacy rights of their donors, and will be seeking amendments to protect those rights.

Immigration

E-Verify (H 7315, S 2216) 
The General Assembly is again considering legislation to require use of the flawed E-Verify system by Rhode Island employers. The program, which by the Social Security Administration’s estimation contains 17.8 million errors, is more likely to falsely identify foreign-born lawful workers as being ineligible to work, leading to racial and ethnic discrimination in the workplace. The ACLU and immigrant rights’ groups testified in opposition to this legislation before House and Senate committees, and will continue to lobby against the bill.

Reproductive Freedom

Mandatory Ultrasounds and “Informed Consent” 
The General Assembly is considering a number of bills attacking reproductive freedom. Among those heard by the House Judiciary committee in April was a pernicious bill requiring doctors to perform an ultrasound – and often describe its images in detail – on any woman seeking an abortion. The House Health, Education and Welfare committee has yet to hear another bill infringing upon the reproductive freedom of women. That legislation would impose a special waiting period before a woman could obtain an abortion, would force doctors to describe medical risks of the procedure far beyond normal “informed consent” requirements, and imposes hefty fines and penalties on doctors who violate any provision. The ACLU is vigorously opposing all of these bills.

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Rhode Island ACLU Mourns the Passing of Affiliate Founder Milton Stanzler

The Rhode Island ACLU mourns the passing of Rhode Island ACLU founder Milton Stanzler, a dedicated and talented attorney who died in March at the age of 91.


After founding the Affiliate in 1959, he successfully led a sustained legal attack on the widespread censorship of plays, books and movies that was occurring in Rhode Island at the time. He also helped the Affiliate play a key role in passage of the state’s Fair Housing Act in the 1960’s. Over the years, he was involved in dozens of important cases as an ACLU volunteer attorney, including Robinson v. DiCenso, the companion case heard in the U.S. Supreme Court with Lemon v. Kurtzman, one of the most significant church-state decisions issued by that Court. His legal efforts also resulted in key court rulings equalizing salaries and benefits for female professors at Rhode Island universities.


In 1999, he wrote a history of the Affiliate, “Eternally Vigilant: The Rhode Island ACLU Story.” Due to his leadership, the Affiliate became an important force in the community, and his lifelong commitment to civil liberties served as a role model for many other attorneys in the state. The ACLU extends its deepest condolences to his wife and family.


The Affiliate extends sincerest condolences to his wife Selma. 

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In Memoriam

The Affiliate mourns the passing of two other civil liberties advocates  in recent months. Peg Laurence, the spouse of former Board member and longtime volunteer attorney Lise Iwon, graciously and routinely provided the Affiliate with her legal expertise in real estate matters for the many places the Affiliate has called home over the years. She also gave Lise the freedom to dedicate so much of her time directly to civil liberties causes. Peg will be deeply missed.

The Affiliate also extends its sympathies to the family of John Sapinsley, a former professor of economics at Rhode Island College and Brown University. John was extremely active in community affairs, including serving on the Affiliate Board in the 1990’s.

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News Briefs

ACLU Files Court Brief Saying U.S. Bears Some Responsibility in Death of Immigrant Detainee

The ACLU has filed a legal brief arguing that a federal court should reject arguments by the United States government that it be dismissed from the lawsuit on behalf of the family of a detainee who died while in the custody of immigration officials at the Wyatt Detention Facility in Central Falls. The government has largely argued that it should not be held responsible for the actions of officials and employees at Wyatt, who are also defendants in the suit and which had a contract with Immigrations and Customs Enforcement (ICE) to detain immigrants like Ng for the government. However, the ACLU brief emphasizes that the lawsuit “plainly allege[s] that the United States, itself, through the actions of its employees at ICE … exhibited negligent and tortious conduct … toward Mr. Ng while he was a detainee in the custody of ICE between July 3, 2008 and his tragic death from metastatic liver cancer.” No date has been set yet for a hearing on the government’s motion, or motions of other defendants seeking to be dismissed from the suit.

Documents Confirm Troubling Use of Cell Phone Technology by State and Local Police

Last year, the Rhode Island ACLU joined with 34 other affiliates in seeking information about the prevalence of cell phone location use tracking by over 200 state and local police departments. The results document a very serious and widespread privacy problem.  While almost all of the police departments across the country reported that they track cell phone locations, only a small minority said that they obtained a warrant and had probable cause to do so.  The ACLU is now considering next steps. 

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Join Us at Pride Fest 2012

In 1976, the RI ACLU took on the case Toward a Gayer Bicentennial Committee v. McQueeney after Providence police denied a permit for a gay pride parade. As a result of the lawsuit, a federal judge issued a restraining order allowing the state’s first gay pride parade to proceed. June 2012 marks the 36th year of this celebration, and the Rhode Island ACLU will be hosting a table at the event. Visit us! More details about Pride Fest 2012, which will be held on Saturday, June 16, can be found at www.prideri.com. 

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Organizational Notes

Tune Into the ACLU's Monthly Cable Access Show

Every month the RI ACLU’s long-running cable access show “Rights of a Free People” features a discussion on key civil liberties issues. In May, we end a three-part series discussing the history, law, and controversies surrounding the separation of church and state. The last episode features Ellery Schempp, the lead litigant in a landmark 1963 Supreme Court school prayer case, and Debbie Weisman Clasie, the lead litigant in the RI ACLU’s successful school prayer challenge in the U.S.  Supreme Court case of Lee v. Weisman. They both reflect upon their involvement in these cases.


Playing in May: Church-State Reflections of Debbie Weisman Clasie and Ellery Schempp

Showtimes:


  • Channel 13: Tuesdays 10:00pm & Fridays 3:30pm (Channel 32 on Verizon FIOS)
  • 
Channel 18: ( In Providence & N. Providence) Wednesdays 9:00pm (Channel 38 on Verizon FIOS)
Check Out Our New You Tube Channel!

Visit the Rhode Island ACLU’s new YouTube channel! The Affiliate periodically updates the channel with portions of our cable show, clips from recent events, and public education films.  One of the films available is “Fitting the Description,” a compelling short film created by PrYSM and Youth In Action's Next Generation Media. Designed to promote comprehensive anti-racial profiling legislation, the video highlights instances of racial profiling in the state and how it affects the minority community. 

Your Eastside Marketplace Receipts Can Help the ACLU

The Rhode Island ACLU participates in Eastside Marketplace’s Friendship Fund. The Friendship Fund is the store’s way of giving back to the community. Simply save your receipts and mail them to the RI ACLU office. Eastside Marketplace then issues checks at the rate of 1% of the total Eastside Marketplace register receipts redeemed. The more receipts redeemed, the more money we raise!

Roger Williams Law Students Work on Court Language Interpreter Project

Collaborating with the RI ACLU, Roger Williams Law School students participated for the second year in a row in a court monitoring project, documenting continued problems with access to interpreters in various courts in the state.


In 2004, the RI ACLU filed a complaint with the U.S. Justice Department’s Civil Rights Division against the state for failing to provide adequate interpreter services in Rhode Island courts. Since then, the Department of Justice has been investigating the claim, and in 2010 it issued a memorandum requiring the Courts to prepare and execute a plan of compliance or risk losing federal funding. However, numerous problems remain.


Last year, some RWU law student volunteers spent their spring break on an ACLU project monitoring courthouses across the state and documented continuing interpreter services inadequacies. A similar project was organized this year, with similar results. The latest information gathered by the students (pictured left) will be forwarded to the DOJ for further investigation.


The project was organized by longtime activist Shannah Kurland. The Affiliate thanks the students for their work on this important project.

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Upcoming Event: Young Professionals' Trivia Night (Civil Liberties Version!)

Will You Be Crowned?


Thursday, May 31st
8 PM—10 PM
Doors open at 7:30 PM
McFadden’s Restaurant and Saloon 
52 Pine Street, Downtown Providence

Join us for a beer for the Bill of Rights! The Affiliate is holding a trivia night, including civil-liberties related trivia, for young professionals at McFadden’s Restaurant and Saloon in downtown Providence on Thursday, May 31st. The doors open at 7:30 PM and trivia will begin at 8 PM. You won’t want to miss this night of trivia, drink specials (for those 21 and older), and complimentary light appetizers! This event will be free with no ticket or reservation necessary.


This is a great opportunity to get to meet other civil libertarians. Bring friends! We hope to see you there.


More details can be found at www.riaclu.org as the event draws closer.

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