Whitewood v. Wolf – A Case for the Freedom to Marry

By Ben Bowens & Molly Tack-Hooper, ACLU of Pennsylvania

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For more information about the case and FAQs, please visit aclupa.org/whitewood

Fairness and Accountability in School Discipline

By Harold Jordan, Community Organizer, ACLU of Pennsylvania

Harold Jordan

Harold Jordan

On April 11, 2014, the School Discipline Advocacy Service (SDAS) held a symposium, “Fairness and Accountability in School Discipline: Using the Dignity in Schools Campaign’s Model Code to Improve School Climate in Philadelphia’s Charter Schools.” I was one of the featured speakers. SDAS is a coalition of law students who advocate for Philadelphia students facing suspension, transfer, or expulsions, both in the school district and in charter schools.

My presentation focused on how to achieve fairness and accountability in charter school discipline. Charters are privately-managed, but publically-funded schools that are run independently of the regular school system. This feature makes public accountability more challenging, especially in the areas of student discipline and student placement. I explained that charters are not exempt from the Constitution, some state education laws, and the federal school discipline guidance.

SDAS is a coalition of law students who advocate for Philadelphia students facing suspension, transfer, or expulsion, both in the School District and in charter schools.

SDAS is a coalition of law students who advocate for Philadelphia students facing suspension, transfer, or expulsion, both in the School District and in charter schools.

Other featured speakers were Matt Cregor of the Lawyers’ Committee for Civil Rights and Economic Justice (Boston) and David Lapp of the Education Law Center of Pennsylvania. The presentations were followed by a community panel of charter school administrators, student groups, and teacher activists organizing on the ground to effect change. Some 100 persons participated in the symposium.

Mayor Nutter Signs Executive Order Ending ICE Detainers in Philadelphia

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

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Today Mayor Nutter signed an executive order directing Philadelphia detention facilities not to imprison people for the federal immigration authorities (“ICE”) without a judicial warrant. Because ICE does not routinely obtain judicial warrants to support its detainer requests (also known as “immigration holds” or “ICE holds”), the new policy will effectively put an end to ICE holds in Philadelphia.

The policy change is the result of sustained advocacy by immigrant rights groups, including the ACLU, to limit police cooperation with civil immigration authorities. The ACLU testified before City Council earlier this month that ICE routinely issues detainer requests without sufficient justification, and that honoring ICE detainer requests jeopardizes the safety and constitutional rights of everyone in the community.

RELATED LINKS:

Galarza v. Szalczyk, et al.

ACLU Written Testimony on Detainers

Harold Jordan on WHYY’s Radio Times

ACLU of Pennsylvania Community Organizer Harold Jordan stopped by WHYY’s Radio Times with Marty Moss-Coane to discuss “racial disparities in school discipline.”

Check out the full interview here:

From WHYY:

New information released by the Department of Education shed more light on a disturbing difference when it comes to school discipline — minority students are suspended at a much higher rate than white students. The same applies to expulsions and harsher punishments and the problem is particularly acute in Pennsylvania. With more research to show that zero tolerance policies are ineffective, some educators are rethinking the whys and hows of school discipline. In this hour of Radio Times we’ll talk about the issues around suspensions, expulsions and even arrests, particularly when it comes to minority students. Our guests are HAROLD JORDAN of the ACLU of Pennsylvania, DEBORAH KLEHR of the Education Law Center, and University of Pennsylvania education professor MATTHEW STEINBERG. – See more at: http://whyy.org/cms/radiotimes/2014/03/31/racial-disparities-in-school-discipline/#sthash.4lewHTdD.dpuf

Questions Surround New Program for Purging Pennsylvania’s Voter Rolls

By Witold Walczak, Legal Director, ACLU of Pennsylvania

If something appears suspicious, and you inquire and the response is, “we refuse to tell you anything,” the natural impulse is to become even more suspicious. And that’s for normal people. But it’s heightened for ACLUers, who must have additional skepticism bred in. And when the concern is purging of voter rolls or other voter-suppression measures, alarm bells blare. That’s why we sent a letter today to Secretary of State Carol Aichele asking for an explanation and governmental transparency. Here’s the background.

Late last summer, Pennsylvania signed onto a program commonly referred to as the Interstate Voter Crosscheck Program. It was begun in 2005 and is administered by the Kansas Secretary of State. Multiple states have signed on to participate. According to the agreement signed by the Commonwealth, participants agree to “share voter registration information for the purposes of cross checking and identifying duplicate registrations and instances of multiple votes by the same individuals.”

In theory, this is not a problem and could be helpful in cleaning up duplicate registrations. But unless done right, it could also be a pretext for wrongly purging voters from registration rolls. As the saying goes, the devil is in the details.

After our inquiry to the Department of State (DOS) for information about the program was refused in mid-February, a formal Right to Know Act request produced 81 pages of documents a month later. While these documents include the agreement itself and some information about program operations, the letter accompanying the documents stated that the most important information being sought, about the ‘the purging of voter records,” was being “denied.” True to their word, the 81 pages share with the ACLU did not indicate when and how Pennsylvania planned to purge voter registrations identified by the Crosscheck Program as duplicates.

Beyond the basic withholding of documents, equally troubling was what the 81 pages did show. They do more to raise than allay our concerns about Pennsylvania’s voter-purging process under the new Crosscheck Program. The documents we received acknowledge that Pennsylvania is changing its process for handling information about duplicate registrations, but those documents do not explain the changes or include a copy of the revised “Duplicate Voter Notice” form.

The documents show that Pennsylvania will be applying a relaxed standard to identify potential duplicate voter records in other states under the Interstate Crosscheck Program, requiring just a match on first name, last name and date of birth. The system does not require a match of middle initial or Social Security number, even though in many instances that information is available. Such a low standard will yield a large number of matches. Indeed, in states slightly smaller than Pennsylvania, like Michigan, Ohio and Georgia, in 2013 the Program identified about 385,000 to 610,000 voters who might have duplicate records in other states.

But the same materials, produced by the Kansas Secretary of State’s Office, candidly acknowledge that many of those potential duplicates are false positives: “Experience in the crosscheck program indicates that a significant number of apparent double votes are false positives and not double votes. Many are the result of errors voters sign the wrong line in the poll book, election clerks scan the wrong line with a barcode scanner, or there is confusion over the father/son voters (Sr. and Jr.).” The program thus flags a huge number of voters as potential duplicates, but admits a high error rate, elevating the ACLU’s concerns about how precisely Pennsylvania will handle voter-registration cancellations.

The danger posed by voter purges, especially purges carried out right before an election, is that duly registered voters are surprised on Election Day that they are no longer listed as a registered voter at their polling place, causing them to have to vote by provisional ballot. In Pennsylvania, less than 50% of provisional ballots are counted, meaning it’s a poor substitute for a regular ballot and is more likely than not to lead to disenfranchisement. Now-notorious voter purges in Florida in 2000 may well have tilted the election. Under the guise of purging felons, non-citizens or outdated and allegedly deficient registrations, states like Florida, Ohio and others have been able to play games with people’s voting rights. The brunt of these unfair purges has fallen on poor and minority voters.

The National Voter Registration Act (NVRA) is a federal statute passed in the ‘90s to, among other things, regulate the removal of voters from the rolls and prevent improper purges. The Act provides for specific safeguards, including for voters being removed from the rolls for possibly having moved, which is what the Crosscheck Program supposedly flags.

Under the NVRA, written notice must be given to people whose registrations are being considered for cancelation, and absent confirmation of the move by the voter him or herself, there is a mandatory waiting period of two federal elections. And no purges under any system of removing names can occur within 90 days of a federal election.

Returning to the Pennsylvania situation, contained in the 81 pages of documents is advice about how and when voter records can be purged, and that advice violates the NVRA. The advice comes from the Kansas Secretary of State, Kris Kobach.

I know Kobach from another life: he was opposing counsel in our 2007 trial over Hazleton’s anti-immigrant ordinances, a case we finally won last month when the Supreme Court refused to review our Third Circuit victory. We saw that Kobach played fast and loose with immigration laws in misguided zeal to drive out undocumented immigrants in a way that threatened the well-being of lawful immigrants in Hazleton, Arizona and elsewhere.

Since Kobach’s ascension to the top election post in Kansas, voting-rights advocates have been concerned that, like with immigration, he may misuse election laws in dangerous ways. Now the concern is that he is misusing the Crosscheck Program, which he inherited from his predecessor, ostensibly to address alleged fraud but doing so in a way that could lead to purges of lawful voters.

The flaw is the same in both Kobach’s immigration and election work: the ends of addressing one problem, be it undocumented immigrants living in our midst or voters registered in two states, justifies a poorly designed cure that threatens the rights of innocent people, either lawfully present immigrants or, in this case, duly registered voters. And important legal protections to prevent errors, i.e., due process, are minimized or ignored completely.

The 81-page document production contains the most recent directions from the Kansas Secretary of State to Crosscheck Program participants, titled “2014 Participation Guide” and dated December 2013. It advises that states may “cancel” a duplicate record “if the following conditions are met”:

“a. the records match on first name, last name, and date of birth, and
b. One of both of the following data elements match:
-last four digits of Social Security number and
-signature and
c. Data in the middle name field either matches or is not a mismatch.”

or

“The jurisdiction poseessing the record with the older registration date may mail a confirmation notice, pursuant to the National Voter Registration Act of 1993, Sec. 8(d)(2), if the three fields match as specified in item 1.a. above. These registrants’ names are added to the state’s Inactive list pending cancellation after two federal general elections, assuming there has been not voting activity during that period.”

Unless my reading skills fail me, this tells states receiving Interstate Crosscheck data that there is an alternative to following the NVRA. Indeed, the second option outlined is the method required by the NVRA, which suggests states can avoid this legal obligation by using the first option. Nothing in federal law provides for such an alternative.

Another paragraph in the same 2014 instructions contains more legally suspect advice. Under a heading entitled, Cancellations by Confirmation Between Jurisdictions, it reads as follows:

“Pursuant to NVRA Sec. 8(d)(1)(A), the jurisdiction possessing the record with the older registration data may cancel the record (and send a cancellation notice if state law or regulations require it), if another jurisdiction confirms that the registrant has registered to vote in the new jurisdiction and has indicated on the voter registration application form an address in the former jurisdiction.”

But this would violate the NVRA because it fails to comply with the requirement that states have to notify voters in writing. Unless they receive written confirmation of the address change from the voter they have to wait two federal elections where the voter does not cast a ballot before canceling their registration.

It’s possible that there is an explanation for all this, and that the Pennsylvania Department of State intends to and will comply with federal law regarding registration cancellations, but what they’ve shared thus far certainly isn’t reassuring.

On March 12, I asked DOS officials for a meeting to discuss how Pennsylvania plans to purge voter registrations under the new Crosscheck program. Other than a nice email from the recently departed DOS chief counsel telling me he had moved on, they haven’t favored me with the courtesy of a reply.

So today we have sent a letter to Secretary Aichele again asking for a meeting to discuss when and how Pennsylvania plans to purge voter records under the Crosscheck Program. Please join us in asking Secretary of State Aichele and Governor Corbett to explain exactly how the commonwealth plans to implement the Crosscheck system, specifically in regards to purging voters from the registration rolls.

Am I My Brother’s Keeper or My Sister’s? The impossible battle between women’s rights and criminal justice.

By Maheen Kaleem, Stoneleigh Emerging Leader Fellow, ACLU of Pennsylvania

Maheen Kaleem is a Stoneleigh emerging leader fellow at the ACLU of PA.

Maheen Kaleem is a Stoneleigh emerging leader fellow at the ACLU of PA.

There’s an old adage: you never know how you’ll react until it happens to you. I live by those words.

I’ve spent the last decade committed to improving the lives of two groups of people: women victimized by sexual violence, and youth of color impacted by racial bias in the juvenile and criminal justice systems. Seems like they would go hand in hand, right? Wrong. In both my professional and my personal life I have constantly been faced with an impossible choice—who do I care about more—people of color or women?

Under current laws, if someone is a victim of sexual assault, domestic violence, or sexual exploitation, they only have one option: call the police and participate in prosecution to ensure your perpetrator goes to jail. But for many victims and survivors, justice does not mean locking someone up.

I am one of those survivors. A few years ago, a former boyfriend and I got into a verbal argument which turned physically violent. I worked closely with most of the domestic violence detectives in the area. If I had called the police, he would have been prosecuted to the fullest extent of the law. But I chose not to.

My loved ones thought I was weak, and many of them lost respect for me. My co-workers worried I was setting a bad example for the young women who were my clients. Everyone around me felt my decision not to involve the police was driven out of fear and lack of self-worth. They could not fathom the truth. The truth? I didn’t call the police because for me, justice did not mean jail.

Every victim and survivor has different needs. I believe in restorative justice. What I needed was for my perpetrator to understand the harm he caused me and to receive the tools to deal with his anger in non-violent ways.

For me, justice did not mean sending my perpetrator into the criminal justice system, because our system prioritizes punishment over rehabilitation. We spend significantly more money incarcerating people than on education, mental health services, and reentry services for formerly incarcerated people. Maybe punishment is appropriate—but only when there is some semblance of fairness. He was a young man of color, which meant he was more likely to receive a disproportionately harsh sentence. It also meant that it would be harder for him to keep or find work because he would have a criminal record.

Unfortunately, the law does not allow victims to choose whether to involve the criminal justice system. If we want to access services, we are often required to involve the police. Many jurisdictions mandate that victims fleeing domestic violence or sexual assault cannot access emergency shelter unless they report the incident to the police, even when a police officer is the perpetrator. If a child victim of commercial sexual exploitation refuses to cooperate with a police investigation of her trafficker, she herself can be prosecuted for prostitution, obstruction of justice, conspiracy, or even trafficking of other minors. I know 17 year-olds who are sentenced to 25-year sentences simply because they were afraid or unwilling to testify against a perpetrator.

Many victims do need the protection of law enforcement, but they are penalized for seeking help. Many places have mandatory arrest laws, placing victims at a heightened risk of violence and even arrest. My colleagues at the ACLU have challenged town ordinances that encourage and require landlords to evict tenants when the police have been called to their homes for domestic disputes. Even when victims do agree to testify against perpetrators, they are not given enough protection during the course of a prosecution. I know child victims of sex trafficking who were attacked for agreeing to testify, even when they informed law enforcement that they felt unsafe. In the most tragic instance, one of these victims was killed for cooperating with the police.

Clearly, we need to do better. If we are going to address violence against women we have to imagine policies that focus on ending violence and supporting victims. Maybe it means harsher penalties for abusers. But maybe it also means more programs that teach non-violent conflict resolution in jails, police academies, and schools. My ability to receive help should not depend on whether or not I am not ready to send my perpetrator to jail, or face him in open court. It should depend on what I decide I need.

This is what justice looks like to me.

###

Maheen Kaleem is a Stoneleigh emerging leader fellow at the ACLU of PA. She holds a JD from Georgetown University Law Center and a Bachelors from Georgetown University’s School of Foreign Service. Prior to law school, Maheen served as a crisis responder and violence prevention worker to over 350 commercially sexually exploited children. Maheen is committed to promoting racial justice and ending gender-based violence.

Her Story: Let’s Celebrate Women’s Privacy

By Janice Arellano, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Janice Arrellano

Janice Arrellano

“The emphasis must be not on the right to abortion, but on the right to privacy and reproductive control.” –Justice Ruth Bader Ginsberg, Apr. 1974

The reflection and celebration of women’s advancement in the United States is not only attributed to the progress on Capitol Hill, but also in the arts, education, media, and popular culture. Women are dominating the discourse and driving critical messages of respecting women’s decisions with their bodies and stories both in popular media and in our everyday lives. Some of the people I have recently admired outside of the political or legal spheres in this regard are Laverne Cox, Janet Mock, Sheryl Sandberg, Lupita Nyong’o, and, dare I say, House of Cards’ character Claire Underwood.

It is the year 2014, and there is much to commemorate during this Women’s History Month. Various pieces of legislation have been enacted over the past few decades, namely the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1979, the Family and Medical Leave Act of 1993, the Violence Against Women Act of 1994, and the break time for nursing mothers provision of the Patient Protection and Affordable Care Act in 2010. However, at the state level, particularly in Pennsylvania, there seems to be a need for a women’s rights refresher course for many state legislators. This can be a month to look back in reverence, or, for many women, it can also be a time to look ahead with trepidation.

As the third Frankel Fellow for the ACLU of Pennsylvania and the first female to serve in that capacity, it has been quite an experience reading proposed bills from a woman’s standpoint and learning how often this viewpoint is undercut, even inside our state’s capitol. Just in the past few weeks, during Women’s History Month, I have witnessed one piece of legislation that was heading in the right direction for women’s rights but has recently been sidetracked by an amendment. Without going beyond the scope of this article, that bill (HB 1796) was meant to protect domestic violence victims, who are predominantly women, from municipal ordinances that penalize individuals who make too many emergency calls to law enforcement. It was a laudable piece of legislation, but an amendment was recently added that would ban local workplace leave policies designed to protect many crime victims puts HB 1796’s passage in jeopardy.

Proposed legislation: An adoptee given access to original birth certificate without birth mother’s consent

This past Tuesday, I observed a hearing on House Bill 162 before the Pennsylvania Senate Committee on Youth and Aging. This bill considers an adult adoptee’s right to access his or her original birth certificate/record without the birth parent’s consent. In most cases, the birth parent likely listed on the certificate is the birth mother. The sponsor of the bill provided very compelling testimony demonstrating the need to know his mother’s name, where he was born, and any medical and genealogical information critical to his complete history and confirming his identity. An adoptee and adoptive mothers testified as well. Throughout the hearing, all I could think about was whose consent, body, and privacy was kept silent. I wondered how the women who want to keep their anonymity to preserve their well-being and also to move past a very difficult, emotional, and personal moment to place a child for adoption would think of this bill.

A representative from the Pennsylvania Catholic Conference testified that many women choose to place their children for adoption because the baby was conceived through a violent act, such as rape, incest, or other exploitative means.

This proposed legislation would significantly undermine the privacy rights of the mother and possibly bring about a history that a woman wants to keep in the past. Pennsylvania law already respects the importance of an adult adoptee’s access to the medical, genealogical, and social history of their birth parents, information that is helpful to understanding many aspects of a person’s future health and social decisions.

HB 162 would create true conflicts between the adoptee’s need to know his or her biological parents and the biological parents’ desire for privacy. Allowing the release of identifying information without the consent of the parties involved would alter past jurisprudence and interpretations of existing adoption confidentiality statutes and the intentions of legislators who created such statutes.

RELATED LINKS:

House Bill 1796 | ACLUPA HB 1796

House Bill 162 | ACLUPA HB 126

Catholic Conference page on HB 162

Poli ≠ Migra: Separating Local Policing from Immigration Enforcement

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Ernesto Galarza (credit: Marco Calderon)

Ernesto Galarza (credit: Marco Calderon)

Earlier this week, Philadelphia took a major step towards disentangling local policing and federal immigration enforcement. Due in part to the efforts of the ACLU, Philadelphia is now poised to become the next city on the list of “no ICE hold” jurisdictions that refuse to use local resources to imprison people for suspected immigration violations.

At a City Council hearing on Wednesday, members of the Public Safety Committee heard testimony from more than two dozen witnesses about the financial and human costs of local cooperation with Immigration and Customs Enforcement (ICE). For hours, immigrants and immigrants’ rights advocates told stories of families ripped apart by deportation. They explained that when local law enforcement agencies open their doors to federal immigration agents, immigrants avoid coming forward to seek police protection, report crimes, and cooperate in investigations out of a fear that the contact with police will result in immigration detention and possibly deportation for themselves and others.

On behalf of the ACLU, I testified about the significant constitutional problems posed by ICE detainers, as highlighted by our lawsuit on behalf of Ernesto Galarza, a U.S. citizen mistakenly held for three days on an ICE detainer.

What are ICE detainers?

An ICE detainer (also known as an “ICE hold” or an “immigration hold”) is a request sent by ICE to a state or local law enforcement agency or detention facility asking the agency to continue holding someone in the agency’s custody to give ICE extra time—sometimes several days—to decide whether to take that person into federal custody and begin immigration court proceedings.

Molly Tack-Hooper,  ACLU-Pa staff attorney, testifies to Philadelphia City Council. Wednesday, March 12, 2014 (credit: A.H. Nishikawa)

Molly Tack-Hooper, ACLU-Pa staff attorney, testifies to Philadelphia City Council. Wednesday, March 12, 2014 (credit: A.H. Nishikawa)

Why is the ACLU opposed to ICE detainers?

The U.S. Constitution guarantees the right not to be imprisoned without probable cause and due process of law. Yet ICE routinely asks local officials to hold people in jail, beyond the time when they should be released, based on nothing more than ICE’s interest in investigating whether they might be subject to deportation. To deprive a person of liberty solely because the government seeks to investigate that person, without requiring any judicial determination of probable cause and without affording any opportunity to challenge the basis for the detention, violates the Constitution and offends fundamental American principles of justice.

ICE detainers also serve as the lynchpin of federal immigration enforcement programs like Secure Communities (“S-Comm”) and the Criminal Alien Program (“CAP”), which rely on state and local police to do ICE’s legwork, inviting police officers to engage in unconstitutional racial profiling and to treat people perceived to be “foreign” differently.

In short, when local law enforcement agencies choose to imprison people pursuant to ICE detainers, this jeopardizes the rights and safety of everyone in the community—including citizens as well as immigrants.

Ernesto Galarza

Back in 2010, the ACLU sued on behalf of Ernesto Galarza, a New Jersey-born U.S. citizen of Puerto Rican descent who was held illegally for three days in the Lehigh County Prison pursuant to an ICE detainer. After Mr. Galarza was arrested (on charges of which he was later acquitted), Allentown police notified ICE of Mr. Galarza’s arrest, believing, due to his ethnicity, that he might be an undocumented immigrant. ICE then issued a detainer to Lehigh County Prison for Mr. Galarza. And Lehigh County honored the detainer, as it always did, because it believed it had no other choice. After Mr. Galarza posted bail, he was held in prison for three additional days, without any explanation, and without an opportunity to demonstrate his citizenship. He was finally interviewed by ICE and released.

The ACLU sued on Mr. Galarza’s behalf, and last week, in a landmark decision, the U.S. Court of Appeals for the Third Circuit ruled that ICE detainers are merely non-binding requests to detain someone, and that because local agencies are not required to comply with ICE detainers, they may be held liable for their role in causing an unlawful detention where there is no constitutionally valid basis for the detainer.

Growing Trend of Refusing to Comply with ICE Detainer Requests

The Galarza ruling has broad implications. A growing number of jurisdictions around the country are choosing to disentangle local policing from federal immigration enforcement by flatly refusing to imprison people based on ICE detainers, or by complying with ICE detainer requests only in limited circumstances. Galarza confirms that localities have a choice about whether to comply with an ICE detainer requests, and warns localities that do choose to honor ICE detainers that they may be held liable for the consequences of their decision to imprison someone pursuant to an unlawful ICE detainer.

Galarza has already had an impact in Philadelphia. At the hearing this week, Mayor Nutter’s Director of Public Safety, Michael Resnick, announced that the mayor plans to issue an executive order directing Philadelphia facilities not to comply with any ICE detainer that is not accompanied by a warrant. Resnick cited the recent Galarza ruling as the basis for adding a requirement of a judicial warrant backed by probable cause. Because ICE does not typically seek out judicial warrants to accompany its detainer requests, the mayor’s proposed policy should effectively put an end to ICE holds in Philadelphia.

As of Wednesday, the mayor is still tweaking his executive order, but I look forward to Philadelphia officially adopting a broad policy that safeguards the rights and safety of all Philadelphians by preventing city agencies from imprisoning anyone else based solely on an ICE detainer request. And hopefully Philadelphia will become a model for the rest of the state, and the country. I would expect nothing less from the City of Brotherly Love.

Anti-Fracking Advocate Moves to Vacate Injunction Barring Her from Large Swaths of Her Home County

By Scott Michelman

Anti-fracking demonstration outside New York Governor Cuomo's office, Third Avenue, Manhattan, NY. 9 Oct 2012. (credit: Adam Welz/CREDO)

Anti-fracking demonstration outside New York Governor Cuomo’s office, Third Avenue, Manhattan, NY. 9 Oct 2012. (credit: Adam Welz/CREDO)

As reported by the Guardian and other news outlets, Cabot Oil and Gas Corporation is going to great lengths to keep Pennsylvania environmental activist Vera Scroggins out of sight and out of earshot. So much so that the company obtained an injunction barring Scroggins not only from Cabot-owned properties but also all properties in the county where Cabot has a lease to extract gas from under the surface of the land – a category that includes the homes of some of Ms. Scroggins friends; her grocery store, auto mechanic, rehabilitation center, and recycling center; and even the hospital closest to her home.

Does a gas company’s right to extract gas from under the surface of the land give it the right to dictate who comes on the surface, even for properties where the company has no active drilling operations? No, it doesn’t, asserts Public Citizen in a brief filed today in cooperation with Sayre, Pa., lawyer Gerald A. Kinchy and the ACLU of Pennsylvania. Furthermore, we argue, the injunction against Scroggins is overbroad and violates her constitutional rights to freedom of speech and freedom of movement.

Scroggins, who has lived in northeastern Pennsylvania’s Susquehanna County for more than 20 years, is a retired nurse’s aide and grandmother who is devoted to alerting the public about the dangers of the gas extraction process (often known as “fracking”) near her home. For several years, Scroggins has used photos and video to document the activities of the gas companies operating in the area, given tours to visitors to show them the affected sites, asked questions of gas company employees, testified before state regulatory officials, and protested the activities of the gas companies.

In response to her advocacy, last fall she was hit with a lawsuit from one of those companies, Cabot, which then obtained an injunction that bars her from a significant portion of her home county, even though Cabot never produced a lease showing it had the right to exclude her from the surface of properties where it has leased only the subsurface mineral rights. The injunction is far broader than anything allowed by the U.S. Supreme Court or Pennsylvania courts under the First Amendment or its Pennsylvania counterpart. The injunction bars Scroggins even from Cabot-leased lands on which no drilling operations are occurring, including businesses and government services open to the public. Under the constitutional right to freedom of movement, recognized by the Supreme Court and the U.S. Court of Appeals for the Third Circuit, the restriction on Scroggins must be narrowly tailored to meet significant objectives, yet Cabot has not explained how banning Scroggins from property it passively leases with no active surface operations is at all tailored to meet Cabot’s asserted interests in protecting its property, the safety of its drilling sites, or its interest in avoiding liability. In fact, Cabot has its own private security firm, Northeast Diversified Services, to protect the company’s operations from advocates like Scroggins; for more than two years, the security firm’s owner has testified, the firm has been tracking Scroggins’ movements “as they pertain to Cabot property.”

Scroggins was never given a list of the places she cannot go under the injunction, so she has had to spend hours at the county courthouse figuring out which lands are owned by or leased to Cabot. And it’s a lot of ground to cover: Cabot’s legal papers state that its leases alone cover more than 200,000 acres of land in Pennsylvania, “the majority of which are located in Susquehanna County.” (200,000 acres is equivalent to approximately 312 square miles.) Because of the injunction, Scroggins’ advocacy activities have been impeded and her freedom of movement curtailed, and she is anxious she will accidentally go where she is forbidden.

A hearing on Scroggins’ motion to vacate the injunction is coming up on March 24 in Montrose, Pa.

###

Cross posted at Public Citizen: Consumer Law & Policy Blog

You, Me and James Dupree

By Carol Petraitis, Director of the ACLU of Pennsylvania’s Duvall Reproductive Freedom Project

James Dupree with The Diptych (1976/79). 72×72, acrylic on canvas. Right panel from the collection of the Philadelphia Museum of Art; left panel from the collection of the artist. (credit: Mike Zaikowski, Profiles Studios, Philadelphia http://www.dupreestudiosinc.com/)

James Dupree with The Diptych (1976/79). 72×72, acrylic on canvas. Right panel from the collection of the Philadelphia Museum of Art; left panel from the collection of the artist.
(credit: Mike Zaikowski, Profiles Studios, Philadelphia http://www.dupreestudiosinc.com/)

In our official capacities, Reggie Shuford, our executive director; Peter Goldberger, the president of the ACLU-Philadelphia Chapter; and I attended an opening for Philadelphia artist James Dupree on Saturday night. Hmmm . . . exactly what was the civil liberties issue at the Dupree Gallery??

Last month, the ACLU signed on to a coalition letter to Mayor Nutter accusing the city of abusing its power of eminent domain by trying to seize Dupree’s Mantua property, which he calls his “private artistic sanctuary and haven.” Dupree, an accomplished artist who has several paintings housed at the Philadelphia Museum of Art, spent years turning a broken-down warehouse and garage into a unique art space where he works and has hosted art classes.

The city now plans bulldoze Dupree’s studio and turn it over to a commercial developer to build a grocery store and a parking lot – despite the fact there are numerous abandoned properties throughout Mantua. The city has also grossly undervalued the property.

The ACLU is part of a coalition supporting Dupree’s fight against the city of Philadelphia, along with what may be the strangest assortment of bedfellows ever – from the right-leaning Americans for Prosperity (which David and Charles Koch founded), the Commonwealth Foundation and the Institute for Justice to the artsy Institute for Contemporary Art and the Painted Bride.

(credit: Carol Petraitis)

(credit: Carol Petraitis)

Much of Dupree’s vivid new work (pictured above) has been fueled by the stress of being a David up against a Goliath. If you’re moved by his plight, consider signing onto the petition, write directly to Mayor Nutter, or visit Dupree’s gallery in Queen Village (703 S. 6th Street).

To learn more, follow this link: http://www.savedupreestudios.org/

Carol Petraitis directs the ACLU-PA’s reproductive rights work, but her undergraduate degree is in visual art.