Happy 50th Birthday to Students’ Free Speech Rights!

Credit: Molly Kaplan/ACLU

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

On February 24, 1969—almost exactly 50 years ago—the Supreme Court decided that public school students’ free speech rights don’t disappear when they go to school.

That ruling grew out of John and Mary Beth Tinker’s decision to wear black armbands with peace signs to their public school in Des Moines, Iowa, to protest the war in Vietnam and mourn the dead. Their school had banned the armbands, and punished them for wearing the bands in spite of the ban. John and Mary Beth fought their suspension all the way to the Supreme Court, and won.

The armbands were controversial. One Supreme Court Justice observed that the armbands had led to discussion among students and warnings or ridicule by other students. Mary Beth’s math teacher said his lesson period was “practically wrecked” by debate sparked by the armbands. And they took many students’ minds off school and diverted their attention to the “highly emotional subject of the Vietnam war.”

But the Supreme Court ruled that that was not enough to justify censoring their speech.  The Court said:

A student’s rights . . . do not embrace merely the classroom hours.  When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others.

This was not the first time the Supreme Court stood up for students’ rights. In 1943, the Court ruled that students at public school have a constitutional right not to be forced to salute the flag. The Court explained that the First Amendment means that, even during wartime, public schools can’t force students to participate in symbolic acts of patriotism. The right to free speech also includes the right not to be forced to say things you don’t mean.

But Tinker v. Des Moines was the first time the Supreme Court laid down a broad, general rule to protect students’ rights not just to not be forced to say things they disagree with, but to speak their mind at school. That rule—which became known as the Tinker rule—is that schools can’t punish students for their speech unless the speech causes “substantial, material disruption” of class or other school activities, or the school has specific reasons to expect that it will.

This is a tough test for schools to meet.

The Tinker rule does have some exceptions. The Supreme Court later decided that schools can punish students for swearing or for making sex jokes at school, even if they’re not disrupting anything. And schools can punish students for encouraging the use of illegal drugs (or for nonsense statements that school officials think might be encouraging the use of illegal drugs—just ask Joseph Frederick, who got suspended for ten days for holding a “BONG HITS 4 JESUS!” banner at a parade during school time).

And if there’s some risk that a student’s speech might be confused for something the school said—like when students write articles for a school newspaper—then the school can exercise some extra control over what students say.

But the basic idea that schools can’t censor student speech just because it might be controversial or upsetting to other students is still the law of the land, and important now more than ever.

We’ve relied on the Tinker case to defend middle school students’ right to wear breast cancer awareness bracelets that said “i © boobies! (KEEP A BREAST)” on their school’s Breast Cancer Awareness Day.

We rely on Tinker when we advise students that they have the right to take a knee during the national anthem to protest police brutality and white supremacy, or issue guidance about students’ rights when participating in a walk-out.

And courts have cited the Tinker case in rulings protecting students when schools exceed their authority and try to punish students for what they say on their own time on social media.

For example, in 2013, the federal appeals court that covers Pennsylvania, New Jersey, and Delaware cited the Tinker case in ruling that schools can’t punish students for making satirical social media profiles about school administrators. This is true, the court ruled, even if the profiles use the kind of bad language and sexual innuendo that students could be punished for using in school. And even if the profiles are really offensive and hurtful. And even if they make their way into the school, and other students talk about them at school.

And we’ve cited Tinker in our lawsuit to get a cheerleader restored to her cheerleading squad after she was kicked off because she used profanity and criticized cheerleading in a Snapchat post that she shared with her friends on the weekend, when she was not participating in cheerleading.

At age 50, Tinker v. Des Moines is still the cornerstone on which students’ free speech rights are built and will continue to be built.

Let’s hope it outlasts us all.

PA Prisons’ New Legal Mail Policy Stifles Communications Between Lawyers and Prisoners

Photo: Ali Khan via flickr

By Andy Hoover, Director of Communications, ACLU of PA

At the first day of testimony in federal court in Harrisburg on Tuesday, four lawyers and one person who is currently incarcerated testified that the Pennsylvania Department of Corrections’ new policy of copying and storing mail between lawyers and their clients in the state prisons significantly hampered their ability to communicate with each other.

Federal district court Judge John E. Jones III is presiding over the hearing in PILP et al. v. Wetzel and Hayes v. Wetzel, two cases that challenge the prison system’s policy as a violation of the First Amendment right to attorney-client confidentiality.

In her opening statement, Alexandra Morgan-Kurtz, a staff attorney with the Pennsylvania Institutional Law Project, said that the department “overreacted” and that, “There’s a reason no other prison system in the country has adopted this
overly aggressive approach.”

Until last fall, legal mail was opened in front of the intended recipient, checked for contraband, and given to the prisoner. But in October, the department changed that practice. Now, legal mail is still opened in front of the prisoner, but, after checking for contraband, prison staff then copies the document. The copy is given to the prisoner, and the prison staff stores the original.

In testimony today via videoconferencing, Davon Hayes, a prisoner at SCI-Smithfield in Huntingdon who is challenging the practice, said that he has never actually seen the originals placed into the locked bin where they are to be stored and that he is unable to see the copier that is used for producing the copy.

Mary Catherine Roper, deputy legal director at the ACLU of Pennsylvania, and Su Ming Yeh, deputy director at PILP, both represent organizations that are plaintiffs in the litigation and that communicate regularly with people who are incarcerated. Or at least they did. Roper told the court that ACLU-PA stopped sending any privileged communications to people in DOC facilities and instead now sends a generic questionnaire, asking prisoners about their experiences with the new policy. And Yeh testified that PILP no longer sends legal mail that is specific and confidential. She called the department’s policy a “detriment to our cases and to the hundreds of people who contact us.”

Although the department’s policy prohibits staff from reading legal mail that they are handling, Roper testified that the idea that staff will simply avert their eyes from the pages they’re handling is “not credible.”

Furthering the point, in his own testimony, Hayes talked about the experience of a guard looking at his legal mail during a cell search in 2011, long before the policy of copying and storing mail started. According to Hayes, the guard read the complaints that Hayes had filed, including a complaint to the local district attorney. When Hayes asked him to stop, the guard called him “a rat” and kicked his mail and his religious materials.

Also on Tuesday, the court heard from two attorneys from the Federal Public Defender – Leane Renée, chief of the Capital Habeas Unit in central PA, and Lisa Freeland, chief of the FPD in western Pennsylvania. Renée and Freeland both discussed the impracticality of visiting their clients, with long drives across the state and hurdles created by prisons’ rules, which are often different from one prison to the next. Renée testified that, under the previous policy, lawyers in her unit would typically send letters with their opinions and thoughts about a client’s case and draft briefs. Her attorneys stopped doing that when the new process went into effect in October. Because the DOC also requires that legal mail provided by attorneys to their clients during visits be copied and stored, the lawyers in her office have no confidential way to provide physical copies of documents to their clients.

Freeland, who represents Hayes, said that her decision to cease sending confidential information put a strain on their relationship. Hayes had advanced his case through the appeals courts while representing himself. The Federal Public Defender started representing him last year, so when his new attorneys stopped communicating by mail, Hayes became frustrated and threatened to dismiss them, after years of having total control as his own lawyer.

On Wednesday, the ACLU-PA and our fellow plaintiffs will continue our case with testimony from several officials from the Department of Corrections, a former warden of San Quentin Prison in California, and another prisoner. Along with ACLU-PA and PILP, the other plaintiffs and co-counsel include the Abolitionist Law Center and the Amistad Law Project, with volunteer attorneys from the law firm Schnader Harrison Segal & Lewis. More information is available at aclupa.org/PILP.

Update: Wednesday’s proceeding has been cancelled due to weather.

A Local Judge Turned a Couple’s Wedding Day Into a Nightmare

Alex and Krisha Parker

By Golnaz Fakhimi, Immigrants’ Rights Attorney

May 23, 2017, should have been the best day of Alex Parker and Krisha Schmick’s young lives; it was the day they were getting married. But it turned into a nightmare when a magisterial district judge in suburban Harrisburg summoned federal officers from Immigration and Customs Enforcement (ICE) to the courthouse to investigate Alex’s immigration status.

Alex, who is 22 years old, was born in Guatemala.  When he was a baby, he came to the United States as a Lawful Permanent Resident, on the basis of a prospective adoption by an American family. His status has remained the same ever since.

When Alex and Krisha decided to go forward with their wedding plans, the only form of ID that he had at the time was an ID from the Guatemalan consulate.  That ID was accepted by officials in Perry County, Pennsylvania, who issued Alex and Krisha a valid marriage license. Perry County did not conduct marriage ceremonies at the time, though.

So Alex and Krisha made an appointment for a marriage ceremony before Magisterial District Judge Elizabeth Beckley in Camp Hill, in Cumberland County. To begin their married lives together, their final task was to say, “I do,” in front of her.

Instead of conducting the ceremony as expected, Judge Beckley had a court officer detain Alex, she inquired into Alex’s immigration status herself, and she refused to accept Alex’s answers about having lawful status. Krisha left in a panic to search for documents at home that confirmed Alex’s status. Alex desperately contacted a caseworker of his from his time in foster care, asking that she please immediately send over those documents to the courthouse. On her end, Judge Beckley called ICE.

Alex and Krisha felt utterly panicked and distraught over what was unfolding. They were afraid that unless they could prove that Alex was here lawfully, not only would they not be married but ICE would rip them apart, lock up Alex in detention, and possibly deport him.

When the ICE officers arrived, they checked Alex’s fingerprints and confirmed that he is, in fact, a lawful resident. Judge Beckley apologized to Alex and Krisha but insisted that Alex would keep having problems like this if he used the consular ID. Krisha and Alex awkwardly went forward with the ceremony, in part, because they had already paid the fee for it.

Today, Alex and Krisha are happily married and living in Florida. And today we filed a federal civil rights lawsuit against Judge Beckley and the court officer who worked with her on the Parkers’ wedding day. The actions of Judge Beckley and the court officer were unlawful. By holding Alex, they engaged in unreasonable detention in violation of the Fourth Amendment. Judge Beckley also discriminated against Alex on the basis of his ethnicity and national origin, in violation of Title VI of the federal Civil Rights Act and the equal protection clause of the Fourteenth Amendment. And she interfered with the fundamental right of Alex and Krisha to get married, which is guaranteed by the Fifth and Fourteenth Amendments.

Local law-enforcement officials don’t have authority to enforce civil immigration laws, and, when they try to do so, they throw people’s lives into upheaval and chill other community members from engaging with law enforcement.  This hurts public safety in our communities.  When local court personnel undertake civil immigration enforcement, the harms can be even more concerning.

This wasn’t the first time Judge Beckley called ICE to report people before her who were getting married. Prior to Alex and Krisha, she had ICE arrest a groom from Tajikistan and his best man.

We’re filing this lawsuit to stop this from happening to any other couple that comes before Judge Beckley or any other judge in Pennsylvania. The freedom to marry is a fundamental right for everyone.

Pennsylvania Can’t Be a Model for Reform if We Undermine People’s Rights

By Andy Hoover, Director of Communications, ACLU of PA

Elected officials and corrections administrators in Pennsylvania have been doing a bit of a victory lap after the recent announcement that our state prison population dropped by 1,000 people in 2018. On the heels of the passage of the Clean Slate Act — a new law to automatically seal some people’s criminal records from public view — some have gone so far as to call Pennsylvania “a model” for criminal justice reform.

But before anyone gets carried away with the idea that the commonwealth suddenly gets it on smart justice, tap the brakes: The legislature is on the verge of granting ballot access to a state constitutional amendment that would undermine the fundamental rights of people who are accused of crimes in pursuit of “victims’ rights.”

We all feel sympathy and compassion for people who have been victimized. It’s neither right nor fair that some people are harmed by someone else’s behavior. If the government can create programs to support victims, that’s all the better.

But the pending constitutional amendment — known as Marsy’s Law and bankrolled by a billionaire from California — is a deeply flawed and downright dangerous undercutting of defendants’ rights. Supporters of the proposal say that they want the rights of victims to be equal in the Pennsylvania Constitution to the rights of the accused. Their narrative fails to appreciate why the state constitution includes the provisions it does – and excludes others.

A person accused of a crime faces the full weight of the state bearing down upon them. The state is attempting to deprive that person of their liberty, possibly even their life. Pennsylvania’s constitutional framers did not want the government to have the power to jail someone without layers of protections. That’s why our principles as a state — and a nation — include due process, a guarantee of counsel, and a presumption of innocence.

Contrast these with victims’ rights, which arise out of a dispute between two private people. One person’s rights against another person are fundamentally different than a person’s rights against the awesome power of the government. This is why our constitution, which lays out the restrictions on government power, includes defendants’ rights and why victims’ rights are primarily contained in statute.

The proposed Marsy’s Law constitutional amendment runs afoul of the protections granted to those subject to the power of the state. The new guarantees in this proposal include a victim’s right to refuse “an interview, deposition or other discovery request” sought by counsel for a defendant. Think about that: A person’s freedom is on the line in a trial, and Marsy’s Law would prohibit them from having the necessary information that could prove their innocence or mitigate the severity of their sentence. That person’s right to a fair trial would be lost, and with it, the chances for grave miscarriages of justice to occur increase.

This legislation also gives victims’ a right “to be treated with fairness and respect for the victim’s safety, dignity and privacy.” On its face, that sounds reasonable. We’re all about fairness and privacy here at the ACLU. But in other states, police officers have used this same Marsy’s Law to hide their identity after they shot people. Law enforcement officers have twisted a law intended for victims to hide their own behavior, at the very moment when transparency is most critical — after an officer has committed an act of violence against a private person.

The proposal in Pennsylvania is littered with vague language. It includes the constitutional right “to proceedings free from unreasonable delay and a prompt and final conclusion of the case and any related postconviction proceedings.” This language could prevent a defendant from having the adequate time needed to present a defense or from the opportunity to have their case heard in the appeals process, which is guaranteed under the constitution. It’s worth noting that once in the constitution, vague language is incredibly difficult to amend when problems inevitably arise.

While our criminal justice system is far from perfect, the guarantees of both the Pennsylvania and U.S. Constitutions are intended to mitigate the mighty power of the state when a person is accused of a crime. Writing Marsy’s Law into Pennsylvania’s Constitution will further empower the state, at the expense of the liberty of the person who is accused. Members of the General Assembly would be wise to slow down, rethink what they’re doing, and, like legislators in New Hampshire, Idaho, Maine, and Iowa, deny Marsy’s Law ballot access.

Pennsylvanians Should Know How the State Police Is Monitoring Social Media

By Andrew Christy, Criminal Justice and Poverty Attorney, ACLU of Pennsylvania

“Sunshine is the best disinfectant.”

That’s a line that is used so much that it’s become almost trite. But it’s oft-repeated because it is so true. And here in the Keystone State, the Pennsylvania State Police is doing everything in its power to block access to its policy on monitoring social media. So we’re headed to the state Supreme Court to get it.

The ACLU of Pennsylvania’s attempt to obtain the state police’s social media monitoring policy has been a two-year odyssey that started in March 2017. Using the state’s Right-to-Know Law, we submitted a request for the policy. In response, the state police’s open records officer sent us a nine-page document that was so heavily redacted that it was nonsensical. Some pages showed only the headers of some sections. Other pages were completely blacked out. No reasonable person could conclude that such a response was transparent or in the spirit of open records.

This is the Pennsylvania State Police’s idea of an “open record.”

Pennsylvania’s Right-to-Know Law allows a person to appeal a denial or a partial denial of a request to the commonwealth’s Office of Open Records, an independent state agency that is intended to be a neutral arbiter in disputes over requests. After reviewing the state police’s social media policy in camera — a legal term that means the review is conducted privately and not as part of the public record — the OOR agreed with us that the policy should be an open record and that the state police’s claim that it could deny the request under the “public-safety” exception in the law was not plausible.

Score one for transparency.

But, as noted above, the saga did not end there. As they have the right to do, the state police appealed that decision to the Commonwealth Court, one of Pennsylvania’s appeals courts. Without reviewing the contents of the policy, the court sided with law enforcement and upheld the state police’s decision to give us the largely redacted policy.

It’s important to pause here for a moment and consider the implications of the court’s decision. By not reviewing the state police’s policy, which would have given the court an understanding of the rationale for redacting most of the document, the Commonwealth Court effectively gave state police — and any other law enforcement agency in Pennsylvania — a blank check to apply the public safety exception of the Right-to-Know Law to any open records request. That is a dangerous precedent and will allow law enforcement to act unchecked and without public accountability.

That’s why we’re taking this case to the Supreme Court of Pennsylvania. The public has a right to know how its state police monitors social media. We know that law enforcement can and has utilized social media to track activity protected by the First Amendment. This is not a hypothetical scenario from a dystopian science fiction novel. It’s real.

In 2018, the ACLU of Massachusetts released a report that found that the Boston Police Department had used software for tracking social media activity for a brief time in 2014 and then throughout 2015 and tracked keywords that included #MuslimLivesMatter, “protest,” “Ferguson,” and “ummah,” the Arabic word for community. The Boston police’s monitoring program swept up thousands of records, including a Facebook post by a then-City Councilmember who had mentioned Ferguson, Missouri, in writing about poverty and homelessness.

Fittingly, in a lesson on why public transparency is so important, Boston police dropped the program after a public backlash in 2016, when the department asked for bids on a $1.4 million dollar contract for another monitoring program, according to the Boston Globe.

In 2016, the ACLU of California found that the software company Geofeedia was marketing it’s monitoring product to law enforcement agencies as a means for tracking protests and referred to unions and activists as “overt threats.”

And we’re no strangers to such a controversy here in Pennsylvania. In 2010, another state agency, the Office of Homeland Security, contracted with a private company to provide daily bulletins of the activities of anti-fracking activists, antiwar organizers, animal rights demonstrators, and Muslims observing Ramadan, deeming them all threats to public safety. The director of the office was forced to resign over the incident, and then-Gov. Edward Rendell described the actions of the office as “extraordinarily embarrassing.”

That’s why we want to know what policy the Pennsylvania State Police has in place to control and restrict how social media monitoring is used in investigations. Power applied under cover of darkness can be extremely dangerous and damaging. We hope that the Supreme Court of Pennsylvania will shine some light on what the state police is doing.

It’s the End of the Road for the State Legislative Session. So What Happened?

Football player Malcolm Jenkins lobbying in Harrisburg for the passage of the Clean Slate Act.

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

It’s official: Today marks the legal end of the Pennsylvania General Assembly’s two-year legislative session. The ACLU-PA’s work in Harrisburg often ranges from hair-on-fire to hurry-up-and-wait. Sometimes we’re able to celebrate our proactive work getting good legislation enacted. But much of what we do, and no less important, is defensive — trying to prevent bad bills from passing or making bad bills less bad.

If there’s one mantra we repeat at the ACLU-PA, it’s to pay attention to your state legislators. Bills passed in Harrisburg often have a far greater and more immediate effect on your life than those enacted in Congress.

Wins

In the 2017-2018 legislative session, we celebrated two major victories that will significantly improve the chances of people getting back on their feet post-conviction. The first was the passage of the Clean Slate Act. This new law – the first of its kind in the nation – automatically seals from public view the criminal records of people convicted of certain summary and misdemeanor offenses if they are not convicted of another crime within ten years.

The legislature also repealed a longstanding mandate to suspend drivers’ licenses of people convicted of crimes unrelated to operation of a vehicle, many of them drug offenses. Repealing this mandate will prevent more than 20,000 Pennsylvanians a year from unnecessarily losing their licenses.

We also successfully beat back yet another attack on reproductive freedom when Governor Wolf vetoed an abortion ban that, had it been enacted, would have been the most restrictive ban in the country and stopped a discriminatory amendment from the CHIP (Children’s Health Insurance Program) reauthorization bill, which sought to prohibit insurance coverage for transgender-related healthcare services.

Losses

The most frustrating loss this session was a bill that enabled the use of police-worn body cameras in Pennsylvania. While the use of body cameras can be an effective means of ensuring police transparency, the bill exempts footage from the state’s right-to-know law, severely restricting public access to video recorded by police cameras. As a result, it undermines the ability to hold police accountable and instead equips them with a powerful data collection and surveillance tool.

On the Lookout

There’s no rest for the weary – the General Assembly returns and reboots in January. Next session we anticipate continued fights against abortion bans, so-called “sanctuary city” legislation, restrictions on police transparency, and a proposed amendment to the PA Constitution known as Marsy’s Law.

The most significant battle we are preparing for is a campaign to prevent the reinstatement of mandatory minimum sentences in Pennsylvania. Reinstating these archaic provisions is an invitation to regress by re-adopting outdated and ineffective “public safety” measures that disproportionately damage communities of color and concentrate unreviewable power in the hands of prosecutors.

The midterm elections didn’t change the balance of power in Harrisburg — we still have a Democratic governor and Republican-controlled House and Senate. Democrats did pick up five Senate seats (breaking the Republican supermajority) and 11 House seats, which may result in increased negotiating leverage for Democrats. But those wins came at the expense of losing most of the moderate Republicans remaining in the legislature. And that may, unfortunately, result in an even more polarized legislature heading into the 2019-2020 session.

We know that it can feel like there are a lot of fires burning right now for people who care about civil liberties – not to mention basic human decency. We’re going to need you to achieve our goals at the state legislature next year. So rest well, enjoy the holidays, and we’ll talk again in January.

Severe Restrictions on Mail to PA’s Prisons Harm People Inside — And Undermine Attorney-Client Privilege

By Sara Rose

Imagine that you’re incarcerated in a Pennsylvania prison. Your primary means to connect with the world outside — your loved ones, your friends, and your attorneys — is the mail.

But under a new DOC policy, the only mail you receive are photocopies. Birthday cards signed by your family or a drawing sent by your child — you only get the photocopy. Legal correspondence that may or may not include sensitive information or grievances against employees of the prison — you only get the photocopy.

In August, the Pennsylvania Department of Corrections (DOC) locked down every prison in the state, returning all mail received during the two-week period to its sender. After the lockdown ended in September, the DOC began confiscating all incoming legal and personal mail, only allowing prisoners a photocopy of their correspondence. The DOC holds the original copies of legal mail for 45 days. All other mail is destroyed after it’s scanned it, but searchable digital copies are maintained for seven years. According to the DOC, the intent of the new mail policy is to prevent “unknown substances” from entering DOC facilities. But the result of the policy is to undermine prisoners’ relationships with their families, friends and attorneys.

Attorneys representing individuals in Pennsylvania’s state prisons have no faith that their correspondence with their clients will be kept confidential under this new policy, and experts in legal ethics have recommended that lawyers with clients in the state prisons should stop communicating by mail. But the other options lawyers have for communicating with clients in state prison — in person or by phone — are not feasible.  The state prisons where their clients are housed are often hours away from the lawyers’ offices and setting up confidential phone calls is often difficult. Mail is the only option most lawyers have to communicate regularly and securely with clients who are in prison.

Even in the most incarcerated nation on the planet, this policy is without precedent in any jail or prison from coast to coast.

That’s why the ACLU of Pennsylvania is part of a lawsuit filed last month challenging the new policy’s restrictions on legal mail and demanding that the DOC identify alternative methods to prevent contraband from entering its prisons. In an interview after the lawsuits were filed, the DOC secretary admitted that contraband entering the prisons via legal mail is rare and that the policy is a preemptive move. The DOC is severely compromising attorney-client confidentiality with no real evidence of a problem.

Depriving attorney-client communications of confidentiality chills prisoners’ constitutionally protected expression under the First Amendment. This violation of the First Amendment is the basis of our litigation.

This is a crucial test-case for jails and prisons nationwide whose administrators may be watching the outcome of this case to determine the future of their own mail policies. In this sense, Pennsylvania is ground-zero for protecting the rights of prisoners in accessing their mail and confidential attorney-client correspondence.

Certainly, the DOC should take the necessary steps to ensure the safety of its employees. Safety of DOC employees, however, cannot and must not infringe on the First Amendment protections of prisoners or their attorneys.

Joining the ACLU of Pennsylvania in the litigation are the Pennsylvania Institutional Law Project, the Abolitionist Law Center, Amistad Law Project, and Schnader Harrison Segal & Lewis LLP.

Sara Rose is senior staff attorney at the ACLU of Pennsylvania.

Philadelphia Police Should Not Enforce the Bias of 911 Callers

Commissioner Ross’s Response to a New Report Shows He Doesn’t Get It

Credit: Ben Bowens

By Reggie Shuford and Carl Takei

Last month, Juán-Pabló Gonźalez, a Black graduate student at Catholic University, attempted to do something mundane — study in the school’s law library. But the library clerk incorrectly told him he needed special permission to do so and then called campus police on him for being “argumentative.” Seven university officers responded and made him leave despite seeing his school ID.

Gonźalez’s run-in at the library happened within days of a white woman in New York City falsely accusing a nine-year-old Black boy of sexual assault at a Flatbush bodega, leading observers to dub her Cornerstore Caroline.

These are just the latest incidents in which white people have been caught on camera calling the police on a Black or brown person simply trying to go about their daily lives. Unfortunately, while some officers have modeled excellent ways to stop themselves from weaponizing the biases of 911 callers, police departments too often fail to adopt appropriate policies to screen and respond to such calls.

Case in point is the Philadelphia Police Department. In April, after a Starbucks manager in Rittenhouse Square called 911 on two Black men who were waiting for a business associate to arrive, two officers arrested the men for “defiant trespass.” Police Commissioner Richard Ross initially responded by saying the officers “did absolutely nothing wrong.” He later walked it back, stating: “I should have said the officers acted within the scope of the law, and not that they didn’t do anything wrong.”

The department later revised its policy for defiant trespass arrests, but it did not address the role of race and continued to ignore the possibility that 911 callers could be using police to victimize others.

These tasks were left to the Philadelphia Police Advisory Commission, the civilian agency that oversees the police department and makes non-binding recommendations to departmental leadership. Earlier this month, the commission released a report evaluating the Starbucks arrest.

The commission found that “the officers were purportedly trying so hard to ignore race that they did not consider race being a factor in the incident even when bystanders were shouting it at them” and that this led the officers to act in inflexible ways that resulted in an avoidable arrest. The commission also noted that some police department leadership took the extremely problematic stance that the officers should have acted no differently even if the manager had requested that “two N-words” be removed from the café, stating that as long as the person making the complaint was legally in the right, racial slurs and racist motivation should not matter.

In response, the commission recommended a series of changes to training and policies that would have led to a better response in the Starbucks incident and other situations when people call 911 to target Black people who are doing nothing wrong.

Commissioner Ross’s response, however, was jaw-dropping. He wrote, “The PPD cannot agree with the statement that racism has a profound effect on what drives citizen and police contact,” and flatly rejected many of the recommendations. The commission recommended that the police department “develop a clear and consistent communication strategy to educate the public regarding how and when 911 should be utilized” and take steps to address the weaponization of police by 911 callers. Commissioner Ross responded that “any messaging by the PPD of when people should or should not call 911 will have a chilling effect” and “compromise the trust in the community that the PPD continually strives to improve.”

The commission recommended that the police department encourage “supervisory assessment of problem solving skills” to help avoid unnecessary arrests. Commissioner Ross rejected this, too, doubling down on the department’s existing “race-blind” approach to racism.

This blinkered approach ignores the fact that if a police officer ejects a Black or brown person from public space purely on the say-so of a white person who is motivated by racial bias, that officer is enforcing racism. When police allow themselves to be weaponized by biased 911 calls, they put Black and brown people at risk, send a message that they must accept living as second-class citizens, and undermine the legitimacy of the police. That’s why the ACLU has launched a Living While Black on Campus campaign aimed at getting college police departments to adopt a simple model policy for screening and responding to bias-based calls and described principles for handling these calls that can apply to all police departments.

Starbucks’ Chief Operating Officer Rosalind Brewer described the April 2018 incident as a “teachable moment” for the company and stated, “Good companies acknowledge their mistakes and learn from them and then make the necessary changes.” Commissioner Ross should take note — if a coffee company can acknowledge its own mistakes and change its policies and practices to regain the trust of people of color, the police have no excuse for refusing to do so.

Reggie Shuford is the executive director of the American Civil Liberties Union of Pennsylvania. Carl Takei is a senior staff attorney at the ACLU’s Trone Center for Justice and Equality.

We want America to be fair, just, and free: A letter from our executive director

Credit: Tim Hindes

Dear ACLU supporter,

We live in truly troubled times. Like you, our hearts were broken when we heard the news that the congregations at Pittsburgh’s Tree of Life synagogue were targeted by a person whose alleged sole intent was to kill Jewish people. Eleven people died while peacefully worshipping as they chose, a freedom that is guaranteed to all of us as Americans.

All mass shootings are tragic. This one struck especially close to home, as many ACLU-PA staff, volunteers, and supporters live and worship in Pittsburgh’s Squirrel Hill neighborhood, including some at Tree of Life, New Light, and Dor Hadash Congregations. From all of us at the ACLU of Pennsylvania, our hearts are with everyone touched by this tragedy.

I am reminded — again — of the urgency of the work that we do as advocates for civil rights, now more than ever. Whether people in a community are targeted for hate crimes by private citizens or face discrimination from their own government, we know that we cannot let up. We will take time to mourn, to breathe, and to care for ourselves and others. And then we will double down on working to create the kind of country that we want.

Anti-Semitism has no place in our America. In our America, diversity is a strength — our diversity in culture, in race and ethnicity, in sexual orientation and gender identity, and in religious practice makes our country better.

America’s past, both recent and removed, is littered with tales of discrimination and violence toward people based simply on their identity. But our past does not write our future. It must not. Our future is determined by what we do, together, in this present moment.

Together, we mourn the tragic and unnecessary loss of life in Pittsburgh this weekend. And then the work starts anew, also together, to create an America that is fair, just, and free for all.

In liberty,
Reggie Shuford
Executive Director, ACLU of Pennsylvania

Tell politicians that immigrants are an integral part of our commonwealth

Washington State 05-01-17 May Day March

Call to oppose SB 10: 1-844-803-2258

This week, Pennsylvania lawmakers will proceed to vote on Senate Bill 10 (SB 10). The passing of SB 10 will further endanger the civil liberties of immigrants. Immigrants are an integral part of our commonwealth. Many community members, including US citizens, will become hesitant to report emergencies and crimes and to help law enforcement in the investigation and prosecution of crimes; this will jeopardize public safety. In addition, SB 10 will drain local resources by diverting them towards a federal responsibility. Congress funded ICE more than $7 billion in fiscal year 2018; do the feds really need help from PA? 

Please take a few minutes to make a call to express opposition for the bill. You can utilize the toll-free number 1-844-803-2258 to connect to your local senator. Once on the line, tell them your name, enter your zip code, and tell your senator: 

“Senate Bill 10 will force local police to act as an extension of the immigration system, which drains already limited local resources and erodes community trust in law enforcement. Please oppose Senate Bill 10 because it will squander valuable resources while jeopardizing public safety. ”

Look up your senator >> http://www.legis.state.pa.us/cfdocs/legis/home/findyourlegislator/