Pennsylvania’s Proposed Blue Lives Matter Law is Redundant, Unnecessary

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

(13th and Locust, Philadelphia, PA. October 21, 2014, credit: Ben Bowens)

(13th and Locust, Philadelphia, PA. October 21, 2014, credit: Ben Bowens)

Pennsylvania could soon have its own Blue Lives Matter law.

Taking cues from Louisiana — which became the first state in the country to pass legislation deeming law enforcement officers a protected class — Pa. Representative Frank Burns (D-Cambria) introduced legislation July 13 to do the same in the Keystone State.

“I respect the difficult job police and corrections officers perform keeping us safe from criminals and I’m appalled that all too often, officers themselves are targeted for assault, ambush or – as we found out in Dallas – death,” Burns said in a prepared statement prior to releasing text of the proposed bill. “If ever there was a group in need of being a protected class, it’s those who put their lives on the line everyday to keep the rest of us safe from the criminal element.”

Burns’ bill would amend the portion of Pennsylvania’s crimes and offenses law that deals with assault. Under that portion of the law, a criminal penalty can be made more severe if it’s “motivated by hatred toward the actual or perceived race, color, religion or national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals.” Burns’ bill would add “employment as a law enforcement officer” to that list of protected groups. Not only would it include officers working the streets of municipalities, cities, and the state police; it would also encompass “a corrections officer, a parole agent, and a member of a park police department in a county of the third class.”

Similar proposals have been advanced in Kentucky, Wisconsin, and Florida.

At least one American Civil Liberties Union chapter has spoken out against the premise behind such proposals. When an alderman put forward Blue Lives Matter legislation in Chicago, the ACLU of Illinois issued a statement calling the measure a “distraction” that attempts “to shift attention from the work of the Black Lives Matter movement, which has challenged police abuse.”

But the ACLU isn’t the only group pointing to the uselessness of such laws.

When Texas senators John Cornyn and Ted Cruz teamed up with North Carolina Senator Thom Tillis to introduce the “Back The Blue Act of 2016,” the response from conservative thought leaders was tepid. The federal version of Pennsylvania’s Blue Lives law would enact a 30-year minimum sentence for killing a federal judge, or law enforcement officer. Conservative author and Manhattan Institute fellow Heather MacDonald told Christian Science Monitor that these bills were more about pandering to cops than solving any significant policing issues. She said it’s “easy for legislators to pass legislation and they feel like they’re accomplishing something…” Former cop and current University of South Carolina assistant law professor told CSM, “I’m not really sure what establishing a mandatory minimum of 30 years is going to do, unless you really want to get them into the federal system for some reason.” Conservative blogger and Hot Air contributor Taylor Millard put it more bluntly:

“There is no reason whatsoever to make killing a police officer a federal crime. FBI stats show they’ve gone down on a pretty steady rate, with spikes here and there. It’s an unpopular sentiment to have following the murder of five Dallas police officers (and last night’s shootout in Baltimore), but what Cornyn, Cruz, and Tillis are trying to do is score brownie points with the law enforcement community.”

Pennsylvania’s law is similarly unneeded, explains ACLU-PA’s Deputy Legal Director, Mary Catherine Roper. “The current criminal code actually provides stronger penalties than the ‘hate crimes’ designation,” she said. “Hate crimes is a one level enhancement, the crimes code provides in some places for two levels difference between, say, simple assault on [a citizen] and simple assault on a cop.”

“There are more important ways to support police,” she continued. “Like pay them a professional salary.”

It’s a tough time to be a cop, that’s certain. With deranged killers taking out their homicidal anger on police in Baton Rouge and Dallas — killing eight officers in total — there’s no doubt that good cops need our support. But proposing redundant laws isn’t the way to do that.

Read Rep. Burns’ Pennsylvania bill here. Track its progress here.

Matt Stroud joined the ACLU of Pennsylvania in 2016 as a criminal justice researcher and writer. Prior to joining the ACLU, Matt held staff reporting positions with the Associated Press and Bloomberg News, and has written for publications including Esquire, The Intercept, Politico, The Atlantic, and The Nation, as well as newspapers and magazines throughout Pennsylvania.

S. 3100 Is BAD For Pennsylvania

On Tuesday, July 5, the ACLU of Pennsylvania sent letters to Senators Pat Toomey and Bob Casey asking them to oppose proposed anti-immigrant legislation.

READ THE LETTERS

S. 3100 would punish 32 Pennsylvania counties for upholding constitutional safeguards against unlawful detention. Unfortunately, Pennsylvania’s own senator, Patrick Toomey, is the sponsor of the bill.

Senator Toomey has derided Philadelphia for policies that keep local law enforcement officials out of the deportation business. But deportation is a job that should be left to the federal government. When local police and sheriffs take on immigration enforcement duties, trust and cooperation with immigrants is eroded, undermining public safety.

While Philadelphia may make for a convenient target of criticism, at least 32 Pennsylvania counties — like hundreds of other counties across the U.S. — rightly require Immigration and Customs Enforcement (ICE) to get a warrant like any other law enforcement agency if they want to detain individuals, for deportation purposes. S. 3100 would require local police to share information about immigrants in their jails, even if ICE does not have a warrant for their arrest.

As punishment for noncompliance, S. 3100 would take over $62 million in federal funding away from these Pennsylvania counties, funds that pay for low-income housing, disaster recovery, public works and economic development. This is bad for Pennsylvania.

Take action on behalf of Pennsylvania and let your senators know that this bill is no good.

PA House Rushes to Vote on Extreme Anti-Abortion Bill

By Julie Zaebst, Director, Clara Bell Duvall Reproductive Freedom Project

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Update: June 21, 2016

Soon after this post was originally published in early April, HB 1948 stalled in the House. Now, the House is poised to take a final vote on the bill as early as this afternoon, Tuesday, June 21st. A companion bill, SB 888, has also been introduced in the Senate and has been referred to the Judiciary Committee.

April 6, 2016

Yesterday, the House Health Committee moved with breath-taking speed to vote on an extreme anti-abortion bill that would make it illegal to provide abortion care to some of the most vulnerable women in some of the most difficult circumstances. House Bill 1948 would ban abortion after 20 weeks and would ban the safest and most common method of second trimester abortion, preventing doctors from making decisions based on medical science and putting women’s health at risk.

The bill contains only a very narrow exception of the health and life of the woman – one that could force doctors to wait until the woman’s health deteriorates before providing her with the abortion care she desperately needs. And the bill includes no exception for rape, incest or fetal anomalies, which often aren’t discovered until a woman’s 20-week ultrasound.

Make no mistake – this is one of the most extreme abortion bans we’ve seen in any state legislature. Only two other states – Kansas and Oklahoma – have enacted this type of “method ban,” and both of these laws have been put on hold by the courts because they raise serious constitutional issues. Method bans substitute a political agenda for a doctor’s expert opinion about which procedure is best for their patient – and threaten doctors with criminal charges if they follow their professional training and conscience and perform an abortion using this method.

But the House Health Committee didn’t pause to consider the expert opinions of doctors or to ask themselves whether this bill would pass constitutional muster. The committee voted to advance HB 1948 just one business day after the legislation was introduced and after just an hour of debate. Members voted against holding a public hearing that would have provided an opportunity for the real experts – medical professionals and families who have sought later abortion care – to share their knowledge and experience with lawmakers.

Anti-choice lawmakers claim that abortion restrictions don’t “punish women,” as Donald Trump recently suggested they should. It’s true that HB 1948 wouldn’t impose criminal penalties on women – only on the medical professionals who are addressing women’s medical needs using evidence-based protocols that are the standard of care for their profession.

But let’s be clear, these types of restrictions do punish women. Just last week, we heard the story of a woman in Texas who was forced to wait for her fetus to die in utero and endure a stillbirth because of a similar type of restriction on later abortion care. When women and their families are confronted with complex medical issues like this, they deserve compassionate care guided by the best medical science – not political interference.

We can’t stand by while lawmakers ram through a dangerous bill with callous disregard for the health and well-being of women seeking later abortion care or for the medical expertise of the doctors who are doing their best to serve them. Contact your lawmaker today and let them know you believe a woman’s health, not politics, should drive important medical decisions.

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Julie Julie Zaebst has served as director of the Clara Bell Duvall Reproductive Freedom Project since 2014, bringing more than 10 years of experience as a program manager and advocate. A social worker by training, she previously worked in child welfare and as the associate director of the civic engagement Office at Bryn Mawr College.

Marijuana Deform at the State Capitol

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

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In June of last year, members of the state House received this co-sponsorship memo from one of their colleagues. The opening paragraph reads:

I hope you join me in sponsoring legislation that will reduce the penalty for a first or second offense of possessing a small quantity of marijuana (under 30 grams) from a misdemeanor to a summary offense. Downgrading this offense from a misdemeanor to a summary offense would have a positive effect on local law enforcement efforts, allowing police and prosecutors to focus their time and resources on more serious offenses.

At first glance, you might think, ‘Wow! This is progress.’ The memo concludes:

As a former law enforcement officer, I strongly believe in cracking down on drug dealers and those who prey on the young or weak with drugs. But those defendants are addressed elsewhere in the Controlled Substances Act. For individuals who merely possess small amounts of marijuana, I believe this adjusted grading makes sense, saving taxpayers thousands of dollars in court costs.

‘Reason is breaking out at the General Assembly,’ you’re thinking.

Well, don’t get out your Ben Harper records and get ready to burn one down just yet. Like anything at the legislature, details matter. And the details here ain’t good.

House Bill 1422, introduced by Representative Barry Jozwiak of Berks County, does indeed lower the grading of possession of a small amount of marijuana, defined as less than 30 grams. Of course, a summary offense is still a criminal offense, though it is the lowest Pennsylvania can go in state law, short of full-blown legalization.

But that’s not the real story with HB 1422. The real story is the massive increase in the fines for possession. Under current law, a person charged with possession faces a maximum fine of $500. There is no minimum fine. According to Jozwiak’s own co-sponsorship memo, the typical fine is around $200.

His bill, though, turns that concept on its head and institutes a minimum fine of $500. With no maximum fine. And it climbs from there. For a second offense, the minimum fine is $750, and a third offense brings a minimum fine of $1000.

If you’re a member of the ACLU or have any cursory knowledge about civil rights, you can see where this is going. If implemented, HB 1422 gives the police perverse incentive to excessively stop, search, and harass people to generate revenue from marijuana users, people who are no more danger (and maybe less) to public safety than people who use the legal drug of alcohol. (Access to which the legislature just expanded. FYI.) And that will disproportionately impact people of color and people from certain neighborhoods.

This is not mere conjecture. In 2013, the ACLU released our report The War on Marijuana in Black and White. The report analyzed nationwide data on arrests for marijuana and found that Pennsylvania had the sixth-highest rate of racial disparity in marijuana arrests between 2001 and 2010. A black Pennsylvanian was nearly six times more likely than a white Pennsylvanian to be arrested for a marijuana offense, even though research consistently shows parity in usage among people of different races.

Plus, without a ceiling set on the fine, it is easy to imagine some cowboy judge who thinks that the War on Drugs was a swell idea dishing out fines of thousands of dollars for a single offense. After all, the bill gives judges discretion to implement any fine they want, as long as it is not below $500.

Of course, this is going in the exact opposite direction of the national trend. In December, Delaware became the 19th state to decriminalize marijuana possession, creating a civil offense with a fine not exceeding $100. Maryland followed in February. In November, Maine, Florida, and Nevada will vote on ballot initiatives to start some form of legalization.

Meanwhile, the city of Philadelphia has saved millions of dollars with its local decriminalization ordinance that created a civil offense with a fine of $25 for possession and $100 for smoking in public. And in 2015, Colorado generated $135 million in tax revenue from its tax-and-regulate initiative.

I give Rep. Jozwiak and the House Judiciary Committee credit for continuing to think about ways to reform marijuana laws. But tagging cannabis users with fines many times larger than current law is not the way to go.

There is a smart way to do this. Representative Ed Gainey of Pittsburgh has introduced House Bill 2076. That bill also lowers the grading of possession to a summary offense and lowers the maximum fine to $100 without risk of incarceration or the suspension of the person’s driver’s license, which is currently one of the penalties for possession.

Two months ago, the legislature acknowledged the reality that cannabis can help patients by passing Senate Bill 3, what became Act 16. It was a small but significant recognition that the commonwealth has handled marijuana in the wrong way for decades. It’s time to fix the mistakes that have been made and get smart on cannabis.


Andy_Blog_HeadhshotAndy Hoover joined the ACLU of Pennsylvania in December 2004, as a community organizer and became legislative director in 2008. As the organization’s lead lobbyist, Andy largely deals with civil liberties and civil rights issues at the state capitol.

In the Struggle for Equality, We Choose Dignity and Respect

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

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For more than a decade, the ACLU of Pennsylvania has advocated for protections from discrimination for gay and transgender Pennsylvanians. We have always known that the opposition would get uglier as we got closer to passage. And now that we have a coalition of business and academic interests at our back called Pennsylvania Competes and some of the most prominent members of the General Assembly in support, “the antis” – in the parlance of advocates- have sunk to their lowest level yet, as was inevitable.

The Pennsylvania Fairness Act- House Bill 1510 and Senate Bill 974- amends the commonwealth’s non-discrimination law to include sexual orientation and gender identity or expression as protected classes in employment, housing, and public services. It levels the playing field for gay and transgender Pennsylvanians. We’re the only state in the northeast that does not have some form of this protection.

A few weeks ago the Pennsylvania Family Institute- the state’s leading anti-gay, anti-trans, anti-woman advocacy group- launched a new campaign called “defend my privacy” that claims that the Pennsylvania Fairness Act would make it illegal to have gender-specific public restrooms. That’s not a joke and it’s not from The Onion. That’s actually what they say.

The areas in which the Pennsylvania Human Relations Act provides protection from discrimination include “public accommodations.” This means that people cannot be denied services based on the protected classes in the act. Think of an interracial couple being denied a wedding cake from a baker because of their race. Or a public golf course refusing to allow women to play there.

The antis have taken a bill that is intended to stop discrimination against gay and transgender people in their daily lives and twisted it into an attack on the simple act of peeing in peace. Last year Brae Carnes, a trans woman from Canada, and Michael Hughes, a trans man from Minnesota, took on the absurdity of the antis’ argument by posting pictures of themselves in public bathrooms of their assigned gender at birth.

Transgender women are women. And transgender men are men. That’s it.

At the ACLU of Pennsylvania, we share the values of privacy and public safety. In my 11 years here, I cannot think of another organization in this state that has done more to protect the right to privacy than us. The issues are too numerous to list.*

Privacy and public safety are not compromised by ensuring that people can use public services based on their gender identity. The city of Harrisburg has had an ordinance like the Pennsylvania Fairness Act for more than 30 years without complaint. If there were problems in Harrisburg or in any of the 30+ municipalities with such ordinances, I can assure you that the antis would tell us.

But the rhetoric of the antis- from the Pennsylvania Family Institute to the advocates and politicians behind recent anti-LGBT legislation in North Carolina and Mississippi- does compromise public safety. It inflames hostility toward transgender Americans. According to the FBI, hate crimes against transgender people tripled in 2014. And advocates believe the actual victimization number is much higher.

In advocating for the Pennsylvania Fairness Act, the ACLU of Pennsylvania and its allies have chosen a campaign of respect, dignity, and basic human decency. It is a shame that the people who oppose this bill cannot offer transgender Pennsylvanians the same.
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*But here are a few. Women’s reproductive healthcare, the Real ID Act, two-party consent in the state Wiretap Act, DNA collection from people not convicted of a crime, protecting data in prescription drug monitoring, the PATRIOT Act, anonymity for parents who give their biological children for adoption, access to location data gathered by EZPass. Etc., etc., etc.

Andy_Blog_HeadhshotAndy Hoover joined the ACLU of Pennsylvania in December 2004, as a community organizer and became legislative director in 2008. As the organization’s lead lobbyist, Andy largely deals with civil liberties and civil rights issues at the state capitol.

The Most Important Criminal Justice Reform Case You’ve Never Heard Of

By Mary Catherine Roper, Deputy Legal Director, ACLU of Pennsylvania

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On Wednesday, the Supreme Court of Pennsylvania (SCOPA) heard argument in Kuren v. Luzerne County, which may be the most important case you’ve never heard of. The one question before SCOPA in Kuren is whether clients of an understaffed public defender office who know their lawyers do not have time to fight for them can ask any court to protect their rights.

Like many places around the country, public defender offices in Pennsylvania are chronically underfunded and understaffed. If you are one of the 80% of people charged with a crime who cannot afford to hire a lawyer, that means you will be represented by a lawyer who has so many cases that he or she has little or no time to talk with you, no time to hunt down documents or witnesses who can help with your defense, no time to argue for a reduction in your bail or your release without bail, and no time to consider your case on an individual basis. You will see your lawyer only for a few minutes at court before your case is called – or, if you can’t make bail, through a video link while your lawyer stands in a courtroom and you sit in jail.

In most counties in Pennsylvania, your local PD office is a “plea mill.” That means that your lawyer will have no chance to investigate your case, but will bring you a deal and tell you that’s the best you will get from the prosecutor. He or she will tell you that the sentence, if you lose at trial, will be much worse, and that you will wait a year – likely in jail – for that trial, during which time you will lose your job, your home, and custody of your children.

But unlike any other state in the country, Pennsylvania has NO statewide funding for or oversight of PD offices. The local county government decides how much funding to give its PD office. Now, if Luzerne County and the Pennsylvania Commonwealth Court have their way, no court can order them to provide more resources.

In April 2012, the ACLU-PA and Dechert LLP filed suit against Luzerne County on behalf of Al Flora, Jr., who was then the Chief Public Defender of Luzerne County, and indigent criminal defendants whom the overloaded PD could not represent.

Al Flora, Jr. |  ©Marco Calderon Photography

Al Flora, Jr. | ©Marco Calderon Photography


The ACLU presented the court with huge amounts of evidence that the Luzerne County PD office couldn’t keep up with all of the people who needed help. Most of the lawyers in the PD office worked without desks, computers or even phones. The administrative staff could not even keep track of files, much less help the lawyers with investigations or client communications. Two months after we filed suit, the trial judge ordered the county to allow Flora to hire more lawyers as a first step, and to come up with a plan to deal with the “crisis” in the PD office.

Luzerne County’s “plan” to deal with the crisis? Firing Al Flora and hiring a new Chief Public Defender who tried to stop the case from moving forward.

When the ACLU continued the suit on behalf of the indigent clients who rely on the PD office, the county argued that criminal defendants aren’t allowed to file suit to protect their right to adequate representation – that as long as they have a lawyer in name, they have to wait to be convicted, then appeal their case, then file a “post-conviction relief” petition claiming their lawyer didn’t do a good enough job. The trial court agreed and dismissed the claims. The Commonwealth Court agreed and affirmed. Now it is for the Pennsylvania Supreme Court to decide.

But the court will have some help. The United States Department of Justice filed a brief with the Pennsylvania Supreme Court saying that PD clients in Pennsylvania should be able to sue to improve the PD office, just as PD clients in many other states have done. The American Bar Association also chimed in, as did the National and Pennsylvania Associations of Criminal Defense Lawyers. And the Innocence Project, which has proven the innocence of hundreds of wrongly convicted people, filed a brief saying that inadequately prepared lawyers are “the biggest factor” leading to wrongful convictions.

Al Flora lobbied the county for additional funds for two years before resorting to filing suit. If the county can fire any chief public defender who is willing to sue, and can stop PD clients from suing, then there will be no protection for the rights of thousands of poor people in Pennsylvania who are charged with crimes.

We need the PA Supreme Court to get this one right.

Mary CatherineMary Catherine Roper is the deputy legal director at the ACLU of Pennsylvania, where she coordinates litigation on a broad range of civil liberties issues, including freedom of speech, religious liberty, racial and ethnic justice, equality for lesbians and gay men, student rights, privacy, prisoners’ rights, and police misconduct.

No, It’s Not Illegal to Record the Philadelphia Police!—Fields/Geraci Ruling Explained

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

On February 19, 2016, a federal trial court judge in Philadelphia ruled that there is no First Amendment right to record the police—unless you make it clear that you are recording for the purpose of criticizing the police. The ruling has confused lawyers and non-lawyers alike. We’ll break it all down for you.

What was the case about?

The ACLU-PA has filed several lawsuits against the City of Philadelphia on behalf of people who were arrested or detained for attempting to photograph or record the Philadelphia police performing their duties in public. The ACLU alleges that, for years, the City has ignored substantial evidence that Philadelphia police officers routinely retaliate against people who record them, and has failed to adequately train, supervise, or discipline officers. The two plaintiffs in these cases, Rick Fields and Amanda Geraci, filed the fourth and fifth lawsuits in the series.

In September 2013, Rick Fields, a Temple undergraduate student, observed approximately 20 police officers clearing out a house party across the street. He paused on the sidewalk to take a photo of the scene with his iPhone, and a police officer asked him whether he enjoyed photographing grown men and ordered him to leave. The officer then arrested Fields and cited him with obstructing a highway.

In September 2012, Amanda Geraci was serving as a legal observer at an anti-fracking protest at the Convention Center. When a protestor got arrested, Geraci tried to take photos of the arrest (as legal observers are trained to do), and a police officer pinned her up against a column and restrained her across the neck.

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What happened in the trial court?

The trial court granted what’s known as “summary judgment” to the defendants, throwing out Fields’ and Geraci’s First Amendment claims. Here’s how the judge who decided the case, the Honorable Mark A. Kearney, framed the issue:

[Rick Fields and Amanda Geraci] never told the police why they were capturing images of the police interacting with people they did not know. They were watching their police officers in action and wanted to capture the images because, at least for one of the citizens, “[i]t was an interesting scene. It would make a good picture” and for the other because she is a legal observer trained to observe the police. The question is whether citizens also enjoy a First Amendment right to photograph police absent any criticism or challenge to police conduct.

Judge Kearney’s answer was “no.” Here are excerpts of his explanation:

Neither [Fields nor Geraci] uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct. . . .

Fields and Geraci essentially concede they spoke no words or conduct expressing criticism of the police before or during their image capture. They instead want to persuade us “observing” and “recording” police activity is expressive conduct entitled to First Amendment protection as a matter of law. In their view, observing is a component of “criticizing” and citizens may engage in speech critical of the government. We find no controlling authority compelling this broad a reading of First Amendment precedent.

Is the ACLU appealing?

Heck yes. We filed notices of appeal on March 21, 2016.

What have other courts said about whether there’s a First Amendment right to record the police?

The ability to scrutinize the actions of public officials is at the core of what the First Amendment is supposed to protect. The First Amendment protects access to information about the government as well as free expression. So every federal appeals court in the last decade and a half that has considered whether there’s a First Amendment right to record the police has ruled that, yes, there is. In other words, Judge Kearney’s ruling goes against the weight of authority. The U.S. Court of Appeals for the Third Circuit (the federal appeals court that covers Pennsylvania) hasn’t yet addressed that question. But the Fields and Geraci appeals will allow the Third Circuit a chance to weigh in soon.

Does the trial court decision in Fields and Geraci mean it is currently illegal to record the police in Philadelphia? Can I now be arrested in Philadelphia for taking pictures of the police?

NO! Even if there were no constitutional right to record the police (and, again, we think there absolutely is such a right), that doesn’t make it illegal to record the police. There is no law that prohibits you from recording the police. Police can only stop you or arrest you if they suspect you of a crime. Recording the police is not a crime. So it’s not a valid basis for a stop or an arrest.

And it’s worth noting that the Philadelphia Police Department agrees with the ACLU’s view of the First Amendment. Since November 2012, the official written policy of the Philadelphia Police Department has said that civilians do have a First Amendment right to record the police, and that police officers should expect to be recorded when they are out in public, and should not interfere with attempts to record them.

So by all means, go download our Mobile Justice app, and use it to record the police in public places. Civilian recordings are a vital tool for deterring police abuse and holding the police accountable when they cross the line. And if you have any questions about what you can and can’t do in Pennsylvania, read our “Know Your Rights” brochure about the right to record the police. Judge Kearney’s ruling doesn’t change anything in there.

So if I am still free to record the police, why does it matter whether or not the First Amendment protects that right?

Without a recognized First Amendment right to record the police, a legislature could pass a law making it illegal. Sound crazy? Well, Texas already tried to pass a law that would prohibit anyone standing within 25 feet of a police officer from recording them—whether or not they were in any way interfering with police activities. Constitutional protection is necessary to prevent that kind of legislative attack on our fundamental freedoms.

In addition, having the courts recognize a First Amendment right to record the police sends an important message. Like many public officials, police officers take an oath to uphold the Constitution. It’s important to establish that protecting the Constitution means respecting the public’s right to observe and record the police—a critical means of holding the police accountable for misconduct.

Molly-Tack-HooperMolly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights. Molly is an active member of the Philadelphia Bar Association, serving as co-chair of the Civil Rights Committee in 2015 and 2016 and vice-chair of the Public Interest Section in 2016.

Pennsylvania: A State of Secrecy

By Crystle Craig, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

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Pay attention, because Pennsylvania lawmakers are on a path to decimating already delicate police-community relations. House Bill 1538 and Senate Bill 1061 mean to take decision-making power from local leadership, blanket law enforcement in a veil of secrecy, and keep the public ignorant to the actions of those who serve it.

Transparency is undeniably vital to any government, such as ours, that wishes to hold the trust and consent of its people. Yet, Pennsylvania is set to veil itself in secrecy in an attempt to shield its law enforcement officers from public accountability. In a time when police chiefs, governors and congressman across the country are calling to open the practices of police to public scrutiny, Pennsylvania’s bills take a tragic leap in the wrong direction.

Pennsylvania House Bill 1538 and Senate Bill 1061 would prohibit local leadership from identifying officers involved in use of force incidents against the people. Police chiefs, district attorneys, and mayors would be barred from disclosing such information until the completion of an official investigation. Under this language, the public could be left waiting virtually into perpetuity. If the investigation is prolonged for years, we would not know the names of potentially dangerous officers for years. If the investigation never closes, as some may be wont to do, the information could never be released. In other words, there is no limit upon the time under which dissemination may be prohibited. And Senate Bill 1061 goes even further by imposing criminal punishment against local leaders who decide to identify their officers, regardless of whether the disclosure was done for the public good and safety.

But the absence of logic is most troubling. In fact, nothing but baseless assumptions abound in these bills. Our lawmakers assume that Pennsylvanians are unreasonable and unstable. They imply that Pennsylvanians just cannot be trusted to do the right thing, as if we will only use disclosure for nefarious purposes rather than for accountability, healing, and peace of mind. In the eyes of our lawmakers, we can do the right thing when electing them, but we are just too emotionally unstable when seeking truth and justice. They assume this without being able to point to any known instances of officers being targeted after the disclosure of identifying information under Freedom of Information Act/ Right to Know Requests or at the discretion of local leadership.

Our lawmakers assume that our police chiefs, district attorneys, and mayors cannot act in the best interests of their officers and communities. Currently, local leadership has the ability to judge the circumstances within the community. They have the discretion to either disseminate information for the public good or to withhold it if the release of such information would put officers or public safety in jeopardy. But, our lawmakers want to ignore the fact that local leadership is in the best position to make judgment calls for their communities, not the detached politicians at the Capitol. They would substitute their inexperience and assumptions for the reasoned judgment of the local leadership who make decisions in consideration of the immediate realities of the local environment.

Evidently, our lawmakers have faith in no one but themselves.

But we must not forget that all departments of government, law enforcement especially, are accountable to the people. The trust of the people must be earned, not taken for granted. That requires transparency. Transparency encourages trust, serving as a vital check against power prone to corruption. Police power certainly is not immune to corruption, but “sunlight” acts as the best disinfectant for deterring and responding to corruption within any government agency. Police chiefs know this. Mayors know this. Governors understand it. And the people demand it.

Achieving a lawful police force is a never-ending task. A government of checks and balances is not enough without transparency, particularly within law enforcement. Police officers are given the unique power to detain and use force against the people, but, when doing so, they must adhere to the rules of law. The people must be able to know if the checks and balances are functioning; the people must know who can and cannot carry-out the demanding responsibility of upholding our laws so that good officers may be praised and the bad officers discarded. As John Adams wrote centuries ago, “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.” This wisdom is wholly applicable to law enforcement today.

Transparency and public awareness are crucially important forces for maintaining fair, humane and lawful police forces. Chicago, Baltimore, Philadelphia and Ferguson all stand as undeniable parables to this end. Let us not forget their lessons as Pennsylvania lawmakers seem to have done with these “secret police” bills; let us speak up and against the veil of secrecy.


Crystle Craig is the 2015-16 Larry Frankel Legislative Fellow and a 2015 graduate of the Dickinson School of Law in Carlisle.

Thank You, Abortion Providers!

By Marah Lange, MSW, former Duvall Project intern

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Last Wednesday was an important day in the fight to protect abortion access.

As the justices gathered to hear arguments in Whole Woman’s Health v. Hellerstedt, thousands came together outside the U.S. Supreme Court to have our voices heard: stop the sham. While Texas’s HB2 and similar laws are engineered to appear to be focused on protecting women’s health, they do just the opposite. In fact, they restrict access to safe abortion by placing medically unnecessary restrictions on providers and causing clinics to close. For patients, this creates an obstacle course of barriers to having an abortion. If I have to travel hundreds of miles for my procedure, who can watch my children? Will my employer allow me the time off I need to travel for my appointment? How will I afford the cost of travel in addition to the cost of my procedure?

This is something we need to be shouting about. And on March 2nd, we shouted! I was one of 60 people who took a 5 a.m. bus from Philadelphia to Washington, DC, to join the Rally to Protect Abortion Access that day. Once on board the bus, I sensed excitement, adventure and, with some bus mates who had been in the fight since Roe, camaraderie. I also felt some trepidation. This was my first large-scale abortion rally, and I did not know what to expect from the opposition. After some coffee, chanting, and eventually a sunrise, we arrived and joined over a thousand other advocates who came together to defend access to abortion (and to show off some fantastic posters).

The Rally to Protect Abortion Access was also a platform for celebration. Women gathered to share their abortion stories, leaders of the fight spoke of their mission to protect access, and abortion providers were met with cheers of gratitude for their dedication to caring for patients with respect and dignity. It was electric.

While advocates await the court’s decision in June, today marks the National Day of Appreciation for Abortion Providers. We observe this day each year on the anniversary of the death of Dr. David Gunn, one of several abortion providers and clinic workers murdered by an anti-choice extremists. It is a day to show our gratitude for the courageous medical professionals who provide abortion care despite political interference and often threats of violence. Each day, providers stand in solidarity with patients who have chosen abortion for themselves and their families. Today we stand with those same providers and say “thank you.”

Thank you, Providers!

THANK YOU to the providers who work hard every day to make sure that people across Pennsylvania have access to the abortion care they need! We appreciate all you do to make reproductive rights a reality. #AppreciateProviders #NDAAPPlanned Parenthood Southeastern Pennsylvania, Planned Parenthood Keystone, PPWP–Planned Parenthood of Western PA, Philadelphia Women's Center, Allentown Women's Center, Delaware County Women's Center, Allegheny Reproductive Health Center Physicians for Reproductive Health

Posted by ACLU of Pennsylvania on Thursday, March 10, 2016

Endgame for DNA Collection Debate?

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

DNA Collection

For five years, the ACLU of Pennsylvania has fought legislation to collect and store DNA from people who have not been convicted of a crime. The varying forms of the legislation demanded DNA collection from people who had been arrested for or charged with certain crimes, flipping the idea of “innocent until proven guilty” on its head.

In each of the last two sessions, a bipartisan coalition of state representatives has turned back the legislation when it has reached the House. If you follow the personalities of state politics, check out this amendment vote from 2012. Those voting “yea” voted to remove the preconviction collection provision from that bill. Yes, Rep. Daryl Metcalfe (R-Butler County) and Rep. Dan Frankel (D-Pittsburgh) voted together, along with a host of liberals and conservatives and moderates.

On Tuesday, the House Judiciary Committee took up yet another version of this legislation. But instead of moving the bill along with the offending language, as the committee has done in the past, Chairman Ron Marsico (R-Dauphin County) offered an amendment to remove the language that requires DNA collection from people who have been arrested. His amendment replaced it with expansion of the current postconviction collection to include all first-degree misdemeanors and some second-degree misdemeanors.

While some civil libertarians won’t like expanding the post-conviction practice, which is currently for all felonies and a few misdemeanors, stopping across-the-board, blanket DNA collection from people who have not been convicted is, in the words of Vice President Biden, a big (frickin’) deal. Twenty eight states and the federal government collect DNA from people who have been arrested or charged but not convicted, and in 2013, a divided Supreme Court upheld the practice.

The privacy implications of preconviction DNA collection are huge. First, the government must jam a swab into your mouth or pluck a hair from your head or take blood to get a DNA sample. (The swab is the most common form of the practice.) In that practice alone, the government is in choppy privacy grounds in invading the person of someone who is still considered innocent under the law and in doing so without a warrant approved by a court.

Then, the government takes that very personal, very private information and uploads it to a database at the Pennsylvania State Police, which is linked to a query system at the FBI called the Combined DNA Index System, or CODIS. Remember, our DNA contains more than 1,000 identifying characteristics about us. And while the profile created for these databases only contain the markers that identify a person, don’t kid yourself. The infrastructure is in place to store more. If you’re acquitted or never charged or exonerated, you have to go back to court to get your DNA profile out of the database.

Of course, every win comes at a cost. The Marsico amendment maintained and actually worsened language in the bill on “modified DNA searches,” or what are more commonly known as familial searches. You and your family members share DNA. The more distant the relative, the less DNA you share. If this language becomes law, a law enforcement agency can go to the state police and ask for a modified search. PSP would then determine if the evidentiary sample is a close enough match to someone in their database that it could be linked to a family member of that person. If your troublemaker cousin is in the DNA database, you’re in the DNA database.

(If any of my cousins are reading this, apologies for throwing you under the bus.)

Senate Bill 683 contains all sorts of requirements before a familial search can be conducted, but the Marsico amendment added language that prohibits a person from challenging an arrest, conviction, search, or any other investigatory action because the law enforcement agency did not follow the requirements. So the limitations on familial searches are, essentially, meaningless.

This will probably be a contentious issue if and when this bill makes it to the House floor. Familial searches are highly controversial. And in its opinion upholding Maryland’s arrestee DNA law, the Supreme Court suggested that familial searches may be unconstitutional.

This bill still has several steps to go before it is finished, so no one is declaring victory. But the House Judiciary Committee, for the first time in three tries, recognized that the will of the legislature- and, specifically, Republicans and Democrats in the House- wasn’t there to pass a bill to collect DNA from people who have not been convicted of a crime. That’s a BFD.

Read more about Senate Bill 683