November/December 2012 Newsletter
Volume: XVII, Issue Number: 5
ACLU Settles Lawsuit on Behalf of Family of Wyatt Center Detainee Who Died in Custody; Suit Alleged "Cruel, Inhumane, Malicious and Sadistic Behavior"
A federal judge has approved a substantial financial settlement on behalf of the family of Hiu Lui (“Jason”) Ng, a 34-year-old Chinese detainee who died in 2008 while in the custody of immigration officials at the Wyatt Detention Facility in Central Falls.
The settlement closes a lawsuit that the Rhode Island ACLU filed in February 2009, alleging “cruel, inhumane, malicious and sadistic behavior” against Ng and violations of his constitutional rights in myriad ways. The suit named more than two dozen defendants, including officials and employees of both the Wyatt facility and U.S. Immigration and Customs Enforcement (ICE). The details of the agreement were filed under seal by the court, although it was acknowledged in open court that it was a multi-million dollar settlement. The lawsuit was handled by RI ACLU volunteer attorneys Robert McConnell and Fidelma Fitzpatrick.
Ng is survived by his wife and two sons, Raymond and Johnny, now ages eight and six respectively, on whose behalf the suit was brought. RI ACLU executive director Steven Brown said: “Mr. Ng’s death was tragic, and no amount of money can replace the pain and suffering of his family. However, this settlement ensures that some justice has been served, provides some closure to the family, and sends a message that every person detained by the government has the right to be treated humanely.”
Despite repeatedly complaining to prison officials about being in excruciating pain, Ng was first diagnosed with terminal liver cancer and a broken spine less than a week before he died. Until that time, guards and medical personnel at Wyatt continually accused Ng of faking his illness. He was routinely denied use of a wheelchair despite his inability to walk, including when his attorney, who had traveled from New York, sought to visit him. Only a week before Ng died, immigration officials forced him to travel to Hartford, Connecticut for no legitimate reason, where he was urged to drop his appeals. To get him to Hartford, guards forcibly dragged Ng out of his cell, shackled his hands, feet and waist, and dragged him to a transport van, despite his screaming in pain. All of this was caught on videotape.
In 1992, at the age of 17, Ng, along with his parents and sister, lawfully entered the United States on a visa. In 2001, he married Lin Li Qu, then a permanent legal resident and now a U.S. citizen. At about the same time, INS issued a notice for Ng to appear at a hearing on his immigration status, but the notice was erroneously sent to a non-existent address and Ng never received it. A few months later, an immigration judge ordered Ng’s removal, in his absence and without his knowledge. In the meantime, Ng’s wife filed a petition to have Ng’s legal status adjusted. It was at an interview they attended on July 19, 2007 to discuss that status review that immigration officials arrested and detained Ng on the basis of the faulty 2001 immigration order. Between that time and his death a little more than a year later, Ng was transferred back and forth between at least three different ICE detention facilities.
This month’s newsletter includes, on Page 6, a quick year-in-review summary of just some of our work in more than 15 different issue areas. Also included is our annual legal docket, listing the 30+ cases we have been involved in during 2012.
I trust you will agree with me that these summaries show just how active and (usually) successful the Affiliate has been, and how important our mission remains.
But, as the late night TV ads proclaim: wait – there’s more. Just as important is what you don’t read in the newsletter or the ProJo or hear on the news: the dozens of issues we resolve every year quietly, but consistently, with just a letter or phone call.
Among the Affiliate’s many recent successes you haven’t heard anything about are these: halting a school’s efforts to censor a high school student’s senior project; convincing the Department of Human Services to revise procedures that were unfairly terminating clients from medical assistance; persuading the DOC to drop proposed mail restrictions that would have made it difficult for family members of ACI prisoners to send holiday cards to their loved ones; and halting a school district’s misguided plans to require all parent volunteers to undergo intrusive and expensive national fingerprinting checks.
It is your support that makes all this happen. So in wishing you the best for the New Year, let me make one more wish: that you end this year by making a special tax-deductible donation to the Affiliate and allow us to do even more – whether it’s taking legal action when we need to, or managing to convince public officials so we don’t.
— Steven Brown
In the months leading up to November’s election, the RI ACLU dedicated significant efforts to protecting the fundamental right to vote. On November 6th, Rhode Islanders were required for the first time in a general election to show identification at the polls. Over the objections of the RI ACLU and many other groups, the voter ID law was enacted last year without a scintilla of documented evidence that voter impersonation at the polling places was a problem in Rhode Island – or anywhere else, for that matter. Testimony documented its potential adverse impact on the elderly, non-English speakers, and the homeless. Although the Secretary of State offered free voter ID cards, this service was only available during limited hours and in limited areas of the state and, of course, only if one already had specific forms of identification.
To help inform voters about the requirements of the new law and other election issues, the Rhode Island ACLU published a free brochure and postcard explaining the laws surrounding voting on Election Day, the new voter identification rules, and how to deal with problems at the polls. Thousands of these voting rights materials, available in both English and Spanish, were distributed across the state and accessed from the ACLU’s website. Additionally, during the entire month of October, a special “voting rights” episode of the ACLU’s cable show, “Rights of a Free People,” aired on public access. Guests Kate Bowden of the Disability Law Center and ACLU Policy Associate Hillary Davis discussed voting rights and the voter ID law.
On Election Day, the ACLU of Rhode Island dispatched staff and volunteers to polling places across the state to monitor voting and how the new voter ID law was taking effect. The Affiliate is preparing a report on the various polling problems that were witnessed and the complaints that the Affiliate received that day from disaffected voters. The Affiliate plans to push for passage of comprehensive election law reform in the 2013 General Assembly session, based in part on the problems that occurred in Election Day, that will also seek to eliminate harmful laws, like voter ID, that led to long lines and a great deal of confusion at polling places across the state.
By a 3-2 vote, the Rhode Island Supreme Court rejected a petition filed by the RI ACLU that sought an order requiring the state Board of Elections to conduct a manual recount of contested ballots cast in the Representative District 58 Democratic Primary. RI ACLU executive director Steven Brown called the court decision “a great loss for fairness and transparency in the election process.”
The petition, filed by volunteer attorney Armando Batastini, sought the relief on behalf of candidate Carlos Tobon, whose one-vote loss to incumbent William San Bento had been mired in controversy and confusion since election night, with misplaced ballots, four different vote counts provided by the electronic voting machines, and a precinct with one more voted ballot than completed voter application forms. Over the objections of Chief Justice Paul Suttell and Justice Maureen McKenna Goldberg, however, the court held that state law precluded a manual recount. The ACLU plans to introduce legislation to reverse the ruling.
The ACLU has filed a lawsuit against the state Department of Health (DOH) for making it more difficult for patients with debilitating medical conditions to participate in the state’s medical marijuana program. The suit, filed by RI ACLU volunteer attorney John W. Dineen, was brought on behalf of the Rhode Island Patient Advocacy Coalition (RIPAC), the Rhode Island Academy of Physician Assistants (RIAPA), the Rhode Island Medical Society, and an individual whose application to participate in the medical marijuana program was denied by the DOH under the new policy.
For the first six years that the medical marijuana law was in effect, the DOH allowed physicians, registered nurse practitioners (RNPs) and physician assistants (PAs) to certify that a patient had a debilitating medical condition that qualifies him or her for participation in the program, as long as they had a bona fide practitioner-patient relationship and completed a full assessment of the patient’s medical history. In August, however, DOH Director Michael Fine issued a memo that only certifications signed by physicians would be accepted. The new policy was implemented without any public notice or input, and was applied to deny applications that had been pending for months. Plaintiff Peter Nunes, Sr. applied for the program in June, but his application was held up until September (despite a statutory obligation that applications be processed within 35 days), when the DOH denied him his medical marijuana card because his certification had been signed by an RNP.
This new restriction has serious consequences for some patients. For example, veterans whose physicians work at the VA cannot obtain certifications from their federally-employed doctor. Some other physicians, fearful of the publicity, stopped issuing certifications after a list of doctors who had signed the forms was made public two years ago. In addition, more and more patients rely on RNPs and PAs, who are authorized to write prescriptions, to help manage their chronic conditions. The new DOH policy forces these patients to form a new relationship with a physician, which may be unaffordable or delay their access to the program.
The ACLU lawsuit makes a number of legal claims. Procedurally, the suit argues that the DOH violated the state’s Administrative Procedures Act when it adopted the new policy without going through a formal rule-making process to receive public input. Substantively, the suit argues that the policy violates the medical marijuana statute itself, in conjunction with other laws that specifically give RNPs and PAs the authority to sign medical certifications to the same extent as physicians. In fact, that had been DOH’s position for six years until this sudden change in policy was announced.
The ACLU plans to seek emergency relief on behalf of Nunes in the coming month. Documents related to the case can be found at www.riaclu.org.
The RI ACLU has expressed its support for a lawsuit filed by a health care workers’ union against a Department of Health regulation requiring thousands of health care workers, including volunteers and non-medical staff, to get a flu shot or else wear a mask during any contact they have with patients during the flu season.
In testimony previously submitted to the DOH, the ACLU pointed out that the requirement undermines informed consent, will do very little to promote patient health care, could erode the use of other more effective infection control practices, and might even at some point adversely affect family caregivers. Studies suggest that the use of masks actually provides little protection for patients and may, in fact, exacerbate the spread of the virus. The Affiliate is also investigating complaints by health care workers that some facilities are imposing masking requirements that go beyond what is mandated by the DOH rules and has called on the Department to address those complaints.
- ACLU Asks Court to Rule That Protester Was Illegally Barred From Leafleting: Arguing that Providence police have “utterly and completely fail[ed] to establish any legitimate governmental interest to justify their conduct,” the Rhode Island ACLU has asked a federal court to rule that police engaged in a clear violation of the free speech rights of a local resident in 2010 when she was barred from peacefully leafleting on a public sidewalk in front of a building where then-Mayor David Cicilline was speaking. In a brief filed by volunteer attorney Richard A. Sinapi, the ACLU also seeks a court order requiring city officials to appropriately train and supervise police officers on the First Amendment rights of individuals to peaceably distribute political flyers. The Court is expected to rule in a few months on the ACLU’s motion.
- State Supreme Court Rules Truancy Lawsuit Moot; ACLU to Consider Next Steps: The R.I. Supreme Court has dismissed as moot a lawsuit the ACLU filed in 2010, challenging various Truancy Court practices. In doing so, the Court acknowledged many of the constitutional claims the ACLU had raised, but ruled they were obviated when Family Court Chief Haiganush Bedrosian, after the suit was filed, issued an administrative order establishing various new rules for truancy court proceedings. However, the ACLU claims problems have continued. The ACLU’s lawsuit charged that the truancy courts were frequently punitive, and that truancy court magistrates threatened vulnerable children and their parents with baseless fines and imprisonment, removed children from the custody of their parents without legal justification, engaged in unlawful private conversations with school officials, and failed to keep adequate records of court hearings. The ACLU will be closely monitoring the truancy courts to ensure that magistrates fully comply with the new mandates, and will also be reviewing the possibility of further legal action.
- Advocacy Groups Urge Rejection of Providence Lobbying Ordinance: Thirteen local community organizations and agencies, including the RI ACLU, have urged the Providence City Council to delay adoption of a lobbying registration ordinance that they claim will “chill and deter local advocacy efforts.” In a letter to City Council members, the groups raised concerns about the breadth of the ordinance – which defines lobbying as contact with any city official to influence a municipal decision – and the significant record-keeping burdens and fees it imposes on small community organizations that engage in any such activities. The City has put the ordinance on hold for the time being.
- ACLU Settles Lawsuit Over Unlawful Seizure of Weapons by Cranston Police: The ACLU has settled a lawsuit against the City of Cranston on behalf of a resident who challenged the police department’s refusal to return to him a variety of lawfully possessed weapons that had been seized from him over a year earlier. The lawsuit, filed by volunteer attorney Thomas W. Lyons on behalf of Robert Machado, argued that the Cranston Police Department violated his right to due process and his right to keep and bear arms by retaining his property without just cause. In settlement of the case, the city returned the weapons and paid damages to Machado for violating his rights.
- Dozens Call for End to "High Stakes Testing:" Dozens of parents, students, educators and community groups, including the ACLU, testified at a meeting of the Board of Regents for Elementary and Secondary Education to call for an end to the Board’s “high stakes testing” graduation requirement, scheduled to first affect the Class of 2014. Speakers pointed out the devastating impact the requirement would have on disadvantaged populations – including students with disabilities, racial minorities, the poor, and English Language Learners – by denying them diplomas on the basis of a standardized test that was never designed for that purpose. The campaign against the testing will continue in 2013 when a newly-reconstituted Board is formed.
- Judge Upholds Sex Offender Residency Law: R.I. Superior Court Judge Sarah Taft-Carter has upheld the constitutionality of a state law that makes it a felony for any person required to register as a sex offender to reside within 300 feet of any school. RI ACLU volunteer attorney Katherine Godin said the ACLU would appeal the ruling. Experts involved in the treatment of sex offenders, as well as victims’ rights groups, have opposed sex offender residency laws as being ineffective, counter-productive, and potentially more, rather than less, harmful to public safety. If the ruling is formally implemented pending appeal, a number of ex-offenders in Rhode Island who have not been deemed a public safety risk will likely face homelessness.
- Providence Reconsiders Passage of Nuisance Property Ordinance: The Providence City Council has belatedly agreed to reexamine objections voiced by the ACLU and other civil rights organizations about its passage of a greatly-expanded “nuisance properties” ordinance. The groups had called the ordinance “dangerous,” and said its passage would encourage discrimination by landlords and unsafe neighborhoods. The groups also expressed concern that the ordinance would discourage victims of domestic violence from calling the police.
On November 8th, Rhode Island ACLU members and friends gathered at the Biltmore hotel in downtown Providence for the annual dinner meeting. The ACLU awarded volunteer attorney Mark Freel with the “William G. McLoughlin First Amendment Award” and honored State Senator Rhoda Perry as the “Raymond J. Pettine Civil Libertarian of the Year.” Guest speaker Michael W. Macleod-Ball, ACLU Washington Legislative Office Chief of Staff, called the 2012 election a “watershed” moment for civil liberties in America.
Mark Freel was recognized for over two decades of volunteer legal work for the ACLU. Most of these cases have dealt with First Amendment rights, and have been on behalf of such diverse plaintiffs as prisoners, community activists, third-party candidates, and the ACLU itself. The ACLU was also pleased and honored to present Rhoda Perry, who served for 22 years in the Rhode Island Senate and always delivered strong, consistent and extremely effective advocacy for civil rights and civil liberties, with the Civil Libertarian of the Year Award. She served as the primary sponsor for numerous significant ACLU bills and other civil rights legislation. Most notably, the ACLU thanked her for her work to end racial profiling, improve fairness in the criminal justice system, protect choice, and to secure equality for LGBT Rhode Islanders.
The evening ended with a speech by Macleod-Ball, who spoke of the implications of the recent election on civil liberties. He pointed to election results regarding marriage equality, immigration, and drug policy reform as a sign that 2012 was a “watershed” election for civil liberties across the nation. The ACLU plans to harness this momentum to promote the passage of related legislation in the coming year and to continue its advocacy efforts in these areas.
The Affiliate is interested in gathering information from the membership about our annual dinner. If you have a minute, we would appreciate your input by responding to this brief survey. You can mail it back to the ACLU office or fax it to 831-7175. Thank you!
NAME (optional) ____________________________________
1. Did you attend this year's RI ACLU Annual Meeting?
Yes _____ No _____
2. Have you attended an RI ACLU Annual Meeting in the past 3 years?
Yes _____ No _____
If you answered YES to either of the first two questions:
What was the main reason you attended the Annual Meeting? (please select all that apply)
___ To support the RI ACLU
___ To honor one or more award recipients
___ To hear from the keynote speaker
If you answered NO to either of the first two questions:
A. What was the main reason you did not attend an Annual Meeting? (please select all that apply)
___ I had a scheduling conflict, otherwise I would have attended
___ Day and time of the event
___ I'm not interested in attending an Annual Meeting
B. Did you attend any other RI ACLU events this year?
Yes_____ No _____
3. Do you think the RI ACLU Annual Meeting should change in any way?
Yes _____ No _____
If Yes, how?
2012 was a busy year for the ACLU of Rhode Island. To give an idea of the tremendous breadth of the Affiliate’s work, below is a brief review of just some of our advocacy and actions this year on a variety of key civil liberties issues.
FREEDOM OF SPEECH. Facing the threat of ACLU lawsuits, two Town Councils revised their policies that unduly restricted testimony by residents at public meetings. The Affiliate also continued its tradition of celebrating free speech by co-hosting an annual “Banned Books” event.
SEPARATION OF CHURCH AND STATE. A federal judge ruled in favor of the ACLU in a lawsuit over the display of an official “school prayer” in a Cranston high school auditorium.
OPEN RECORDS. The Affiliate successfully pushed for passage of comprehensive amendments that strengthen the Access to Public Records Act, and added to our website a large amount of educational material on the topic.
REPRODUCTIVE RIGHTS. ACLU lobbying helped defeat legislation that would have allowed genetic counselors to refuse to counsel patients about abortion options even when medically indicated.
PRIVACY. Though unexpectedly vetoed by the Governor, the General Assembly passed an ACLU bill restricting police from searching the contents of cell phones without a warrant.
RIGHTS OF IMMIGRANTS. The Affiliate filed a lawsuit on behalf of a local resident who has twice been jailed as a deportable “alien” even though she is a U.S. citizen, and obtained a favorable settlement for the family of Hiu Lui “Jason” Ng, a 34-year-old Chinese detainee who died at the Wyatt detention center due to inadequate medical care.
RIGHTS OF THE HOMELESS. The ACLU was instrumental in drafting a law making Rhode Island the first state in the country to enact a judicially-enforceable “homeless bill of rights.”
THE “WAR ON DRUGS.” The Affiliate sued the Department of Health for taking actions that undermine implementation of the state’s medical marijuana program for sick patients, and co-sponsored a conference at Brown University on drug policy reform.
VOTING RIGHTS. The Affiliate took a variety of actions, and engaged in a concentrated educational outreach campaign, to mitigate the harm caused by implementation of a new voter ID law.
LGBT RIGHTS. The ACLU continued to work with coalition partners in promoting passage of same-sex marriage legislation, and published a series of reports demonstrating the complete ineffectiveness of the state’s civil union law.
WOMEN’S RIGHTS. ACLU action prompted the Department of Corrections to adopt strong regulations against the shackling of pregnant prisoners.
SCHOOL-TO-PRISON PIPELINE. The ACLU argued in the RI Supreme Court in support of its pending class-action lawsuit challenging systemic violations of student and parental rights by state truancy courts.
THE AFTERMATH OF 9/11. The R.I. House of Representatives approved an ACLU-drafted resolution calling for repeal of a federal law that potentially allows for the indefinite detention without charge or trial of U.S. residents.
POLICE PRACTICES. ACLU intervention helped halt a Providence police department proposal to implement an aggressive and discriminatory “stop and frisk” program.
ACCESS TO THE COURTS. In response to an ACLU complaint, the Department of Justice required the Rhode Island Judiciary to adopt new policies to address the problem of inadequate language interpreter services.
STUDENTS’ RIGHTS. The ACLU published a series of “Know Your Rights” brochures for students about school dress codes, technology and privacy, and school discipline.
DEATH PENALTY. The Affiliate filed court briefs in support of Governor Chafee’s efforts to halt U.S. Attorney plans to institute death penalty proceedings against a Rhode Island criminal defendant.
POLICE PRACTICES. ACLU intervention helped halt a Providence police department proposal to implement an aggressive and discriminatory “stop and frisk” program.
The need has never been greater for new supporters of the ACLU. Help protect the Constitution in the state and nationwide with a unique gift opportunity this season: give an ACLU membership to your friends and family. Your gift membership will make a real difference in the fight to defend our cherished and endangered civil liberties. You can gift an ACLU membership by calling the office at 831-7171.
Every year, the ACLU cooperates with a Rhode Island library to draw attention to the importance of fighting censorship and to celebrate our freedom to read during National Banned Books Week. In celebrating freedom of expression, Banned Books Week also highlights the important role of libraries as one of the nation’s great democratic institutions. This year, we teamed up with the East Providence Public Library to bring attention to this important issue. Local authors Hester Kaplan (Kinship Theory; The Edge of Marriage); Janet Taylor Lisle (Highway Cats; The Art of Keeping Cool); Roland Merullo (Golfing with God; Breakfast with Buddha); Taylor Polites (The Rebel Wife); ProJo reviewer Sam Coale; and former ProJo Books editor Doug Riggs read from some of their favorite banned books before an enthusiastic crowd.
The Cable Car was a full house in September for a screening of “The Loving Story,” an award-winning HBO documentary about an interracial couple arrested for miscegenation in 1958 and exiled from Virginia. With the help of the ACLU, Mildred and Richard Loving took their case all the way to the Supreme Court, and in 1967 the court struck down these discriminatory laws across the nation. Tracing the history of the case, the film also provides a parallel to contemporary issues of marriage equality.
To kick off African-American history month, the ACLU of Rhode Island and the Unity Center at Rhode Island College are planning to hold another screening of this film at the College. After the film, an ACLU representative will be available to answer audience questions. This event is free and open to all.
The ACLU of Rhode Island and the Rhode Island College Unity Center Present:
“The Loving Story”
Monday, February 4th at 6:00 PM
Student Union Ballroom, Rhode Island College
Mount Pleasant Neighborhood, Providence, RI
The Student Union Ballroom is on the third floor of the Student Union.
Visitors who wish to park on campus must check in with Campus Police at Browne Hall to obtain a visitor parking tag. Visitors can park in ANY lot with an authorized tag.
The student union is located off College Road (to the right if you enter from Mt. Pleasant Ave. and to the left if you enter from Fruit Hill Ave.). Turning into the K Lot for parking will place visitors directly outside of the Student Union building. Alternative parking in the J Lot is located just after the Student Union lot if entering from Mt. Pleasant or just before it if entering from Fruit Hill. Additionally, there are directional signs for the Student Union (and other buildings) along College Road.
As we look back on the past year, we are reminded of the wide breadth of issues, lawsuits, advocacy, and events that make up our program. This year we lobbied on hundreds of bills, hosted seven successful events, took on a variety of new lawsuits, testified before dozens of public agencies, published five new “Know Your Rights” brochures, produced twelve television programs, and worked in coalition with countless other organizations on a wide range of key civil liberties issues. In order to allow us to continue at this pace, your special end-of-the-year support of our work is critical. Please help us continue our efforts in 2013 in the midst of this tough economic climate.
With 2012 drawing to a close, consider making a special, tax-deductible contribution to the ACLU Foundation of Rhode Island. There are two easy ways you can contribute:
* Donate directly on our website at www.riaclu.org; or
* Send a check to:ACLU Foundation of Rhode Island
128 Dorrance Street, Suite 220
Providence, RI 02903
If you are looking for a way to give year-round, consider participating in a payroll deduction plan. If you’re a state employee, you can contribute through the State Employees Charity Appeal Campaign (SECA). Our designated SECA number is 3980. If you’re a private employee, you can give via the United Way or the Fund for Community Progress by writing “ACLU Foundation of R.I.” in the space provided on either pledge form. Thank you!