The best accountability tool may be the smartphone in your pocket

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

Pictured: The shooting death of Walter Scott in North Charleston, South Carolina, captured by a civilian’s mobile phone camera.

Since 2013, the ACLU of Pennsylvania has been fighting to preserve ordinary people’s power to use recording technology to keep the police in check through aseries of lawsuits against the Philadelphia Police Department over the well documented pattern of PPD officers arresting or citing people who attempt to record police.

This “Copwatch” campaign — the name we’ve given to these lawsuits, filed on behalf of individuals arrested for observing or recording police action — suffered a setback in February 2016, when federal district court Judge Mark Kearney ruled that ordinary people do not have the right to record the police unless they simultaneously criticize the police.

Judge Kearney’s ruling is a major problem. And that problem needs to be addressed now perhaps more than ever before.

Recent attacks on police reform have been launched from both Harrisburg and Washington, D.C. Attorney General Jeff Sessions has signaled that his Department of Justice will scale back its police reform activities, decreeingthat police accountability is henceforth the responsibility of local governments, not the federal government. Meanwhile, the Pennsylvania General Assembly isn’t likely to help close the accountability gap left open by Attorney General Sessions. An alarming number of Pennsylvania legislators have been hard at work on measures to insulate law enforcement against oversight, including a bill that would effectively make police body camera footage unobtainable by anyone other than police and prosecutors.

With so many members of the legislative and executive branches working feverishly to cripple the public’s ability to hold police officers accountable for abuses, reform may have to come from the courts — and from We the People.

After filing briefs in October and January in opposition to Judge Kearney’s ruling, on Tuesday, ACLU-PA asked a panel of federal appeals court judges to step up and protect the most powerful tool that ordinary people have for holding the police accountable: the right to record the police.

Although many courts have recognized that documentation and communication about how police use their power is at the heart of what the First Amendment was designed to protect, the federal appeals court that covers Pennsylvania has yet to acknowledge that.

Over the past several years, as smartphones have become ubiquitous, timeand againwe’ve seen civilians’ photos and videos of police expose the realities of policing in an undeniably powerful way. Ordinary people’s cell phone recordings of police interactions have been a starting point for national conversations about police reform and have sparked grassroots movements seeking accountability for how — and against whom — the police use their tremendous power. And studies show that videos of police interactions can not only document abuses by law enforcement but can also deter abuses.

If allowed to stand, Judge Kearney’s ruling threatens to chill the exercise of core First Amendment freedoms, erode the supply of crucial information about policing, cut off an important societal debate, and stop police accountability movements in their tracks.

We know that protecting the public’s right to record the police plays a vital role in holding law enforcement accountable.

We hope the appeals court will embrace its vital role in safeguarding First Amendment freedoms.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Will Philadelphia’s next district attorney set juvenile lifer Terrance Lewis free? Photo from The Inquirer.

  • The Inquirer: “A judge called this juvenile lifer innocent, but he’s still in prison. Will Philly’s next DA let him go home?”

“But Lewis is — depending on your perspective — either an incredibly unlucky man or an extraordinarily lucky one. Unlucky to be charged with a crime he says he did not commit, to be tried as an adult in a state where life means life, to be appointed a lawyer who apparently never investigated his case. Lucky, because he keeps encountering more people who were out on the block that evening and are willing to testify that he wasn’t there. And lucky, because he is on the right side of a U.S. Supreme Court decision that found sentences like his to be illegal. Lewis is one of more than 300 juvenile lifers from Philadelphia — the largest such population in the country — being resentenced after the court banned automatic life-without-parole sentences for juveniles in 2012, and then in 2016 ordered that the rule be applied retroactively. So far, the Philadelphia District Attorney’s Office has taken a conservative approach to these cases, often making offers of 35 years to life. But after 19 years in prison for a crime he says he did not commit, Lewis is hoping for a different sentence: time served.”

  • ACLU-PA: “ACLU of Pennsylvania Argues for the Right to Record the Police Before Federal Appeals Court”

“With cooperating counsel, the ACLU of Pennsylvania is representing two plaintiffs who photographed police at work and who were detained as a result. Rick Fields was arrested in September 2013, after he stopped to take a photo with his iPhone of a large number of Philadelphia police officers breaking up a house party across the street. One of the officers approached him, asked if he enjoyed “taking pictures of grown men,” and ordered him to leave. After Fields refused, he was handcuffed and detained in a police van, and his phone was searched in an apparent attempt to find the recordings he had made that evening. He was charged with “obstructing the highway,” but the charge was later withdrawn. The other plaintiff is Amanda Geraci, a trained legal observer who was detained by police while she was attempting to monitor police interactions during an anti-fracking protest outside the Pennsylvania Convention Center in September 2012. When Geraci attempted to take photos of police arresting a protestor, a police officer pushed Geraci up against a pillar and pinned Geraci across her throat. Other police officers quickly surrounded Geraci and the officer to block other legal observers from witnessing or recording the incident, although not before several photos were taken by Geraci’s fellow legal observers. In February 2016, federal district court Judge Mark Kearney ruled that the plaintiffs do not have a First Amendment right to photograph the police unless they are doing so for the purpose of criticizing the police. Molly Tack-Hooper, staff attorney for the ACLU of Pennsylvania, argued on behalf of the plaintiffs at today’s hearing in the appeals court. ‘Ordinary people have an important role to play in holding the government accountable, and the First Amendment is one of our main sources of power,’ said Tack-Hooper. ‘Taking photos or videos of how police use their power is part of the freedom protected by the First Amendment.’”

  • More ACLU-PA: “State Senate Bill Blocks Public Access to Police Video, Undermines Accountability”

“The Pennsylvania Senate today passed legislation to severely restrict the ability of the public to access video recorded by police cameras. The American Civil Liberties Union of Pennsylvania said that the bill undermines the goal of using body cameras as a means of accountability for police officers. ‘If the public cannot obtain video produced by police cameras, they shouldn’t be used at all,’ said Reggie Shuford, executive director of the ACLU of Pennsylvania. ‘While body cameras may be valuable to officers in carrying out their daily duties, the idea of using these cameras came to prominence because people were demanding that police operate with transparency, fairness, and accountability.’”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

No quick or easy remedy for Philadelphia’s profitable forfeiture machine

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

Pennsylvania’s Controlled Substances Forfeiture Act allow all seized assets to go directly to the offices of prosecutors. The ACLU-PA found that prosecutors overwhelmingly target disadvantaged individuals without the means to fight the forfeiture in court. Photo from Occupy.com.

In a class action challenge to Philadelphia’s forfeiture practices, a federal district court ruled on February 23 that people who have lost property through forfeiture will have to file separate lawsuits to be compensated, even if the court finds some of Philadelphia’s practices unconstitutional. The ruling underscored one key message: that relief for the victims of this deeply broken system is still a long way off.

The lawsuit, Sourovelis v. City of Philadelphia, was filed by the Institute for Justice (a Washington, DC-based property rights group) with the assistance of local civil rights hero David Rudovsky in the summer of 2014. It was filed at the same time that ACLU-PA was forming a broad-based Coalition for Forfeiture Reform to push for statewide legislative change to Pennsylvania’s civil forfeiture laws. On both groups’ agenda was removing the direct financial incentive for prosecutors’ offices to aggressively pursue forfeiture.

Under Pennsylvania’s Controlled Substances Forfeiture Act, 100 percent of the proceeds from forfeiture go directly to the offices of the prosecutors who make decisions about what property to go after for forfeiture, who to target, and how ruthlessly to litigate forfeiture cases. In every county examined by the ACLU-PA, prosecutors disproportionately targeted people of color for forfeiture, taking mostly small amounts of cash where owners had little incentive to fight the forfeiture in court.

Senate and House bills would have removed this pecuniary incentive to use forfeiture overzealously and target people who can’t fight back by diverting forfeiture proceeds to a general fund instead. But in 2016, these bills were gutted at the urging of the Pennsylvania District Attorneys Association to remove all of the major reform components.

The current statute specifies that prosecutors are supposed to use forfeited property for drug enforcement, community-based drug- and crime-fighting programs, or relocation and protection of witnesses in criminal cases. However, the Sourovelis complaint alleges that, in Philadelphia, forfeiture proceeds are split between the police and District Attorney’s office and used in part to pay prosecutors’ salaries. The lawsuit makes the somewhat novel claim that the prosecutors’ financial stake in the outcome of forfeiture cases denies property owners due process.

In May 2015, the trial court rejected the City’s bid to throw out this due process claim, ruling that it couldn’t decide the claim without first resolving a factual dispute between the parties about whether the DA’s office actually used its forfeiture proceeds as contemplated by statute or used it for salaries.

In its February 23 ruling, the court made clear that even if the court ultimately sides with the plaintiffs and rules that the Philadelphia DA’s stake in the outcome of forfeiture cases is unconstitutional, the court will not order the return of all class members’ forfeited property. Rather, anyone who has lost property in Philadelphia to forfeiture would then have to file an individual lawsuit to determine what relief they’re entitled to.

With meaningful legislative reform seemingly off the table in Harrisburg and the federal trial court sending a signal that the Sourovelis lawsuit will not provide a quick or easy remedy for the victims of Philadelphia’s profitable forfeiture machine, it looks like Pennsylvanians will remain vulnerable to forfeiture abuse for a while longer.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

The ACLU is updating its police body camera recommendations to clarify public release guidelines and improve accountability. Photo by Ryan Johnson.

“In Pennsylvania, Black students were four and a half times more likely to be arrested than White students. This rate is two and a half times greater than the national rate for Black students. While Black students made up only 15% of student enrollment, they were 40% of the students arrested in Pennsylvania — a total of 2,074 Black students were arrested in 2013–14. In contrast, White students made up 69% of public students, but received 41% of student arrests.”

  • From ACLU National: “We’re Updating Our Police Body Camera Recommendations for Even Better Accountability and Civil Liberties Protections”

“We have also added language stipulating that police departments cannot use ‘investigative privilege’ as a basis for withholding footage where the suspect is a police officer (who likely is the one who recorded the video and has been allowed to see it). As we argue at greater length here, the rationale for such a privilege (tipping off suspects) does not apply when the suspect is a police officer. We do allow that redaction, subject to limitations, can be used in such situations.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

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

Fields Citation_Cropped_Redacted

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.

Ferguson Is Everywhere

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

Ferguson Protest, NYC 25th Nov 2014 (15693825550)

You already know an unarmed black teenager, Michael Brown, was gunned down by a white officer, Darren Wilson, after the officer stopped Brown for jaywalking. You know the Ferguson Police Department is mostly white, in a mostly non-white community.

You certainly know about the outcome of Officer Wilson’s grand jury hearing, after an unusual process in which the prosecutor didn’t ask the grand jury to indict Officer Darren Wilson—and it didn’t.

And you also know about Eric Garner. That NYPD arrested him for selling untaxed cigarettes (“loosies”). That the police wrestled the unarmed man to the ground, and placed him in a chokehold that had been outlawed by the NYPD. You know that Garner repeatedly gasped “I can’t breathe” as he struggled to take in air, and was pronounced dead an hour later.

You know the incident was captured on videotape, and the officer who killed him was still not indicted.

You know all that. But to understand why these events resonated so strongly in the public consciousness and sparked protests all across the country, we need to talk not only about Michael Brown, and Eric Garner—and Akai Gurley, and Tamir Rice, and many thousands of other unarmed men of color killed by police. We need to talk about why most of the people killed by police in recent years have been people of color.

Ferguson is everywhere because all across the country, communities of color are disproportionately the target of police scrutiny and violence. “I can’t breathe” became a rallying cry for people throughout the nation who live every day under the oppressive weight of police practices and a criminal justice system that cast men of color as threats.

Over the past few decades, police departments across the country have turned to “preventive” policing strategies. Broken windows theory, order-maintenance policing, zero tolerance—these strategies have many names, but share an emphasis on pouring law enforcement resources into poor communities of color (so-called “high-crime” neighborhoods) to aggressively stop, frisk, and arrest lots of people for minor, non-violent, “quality-of-life” infractions. This means arresting people for offenses like curfew violations, open containers, littering, graffiti, and sleeping or urinating in public.

Data-driven police management—where police are judged by their COMPSTAT statistics, and how many stops and arrests they perform—creates further incentives for aggressive policing of minor offenses.

The result is that, throughout the United States, people of color are several times more likely to be stopped by police, frisked by police, and arrested by police than white people. Not because they’re more likely to commit crimes, but because of policing strategies that pit the police against communities of color.

Because black and Latino men are disproportionately likely to have an encounter with the police, police come to stereotype people of color as criminals—unconsciously or consciously. This bias then reinforces the decision to concentrate police resources in communities of color.

This dynamic is particularly troubling when combined with the lack of sufficient legal restrictions on when the police are allowed to use force, and the increasing militarization of police departments around the country.

Police are empowered to use violence—tasers, chokeholds, and even guns—when they interact with the community on the street. And around the country, para-military SWAT teams raid people’s homes in the dead of night, often just to search for drugs. These SWAT teams are deployed disproportionately in black and Latino neighborhoods.

In a system that treats police like the military and people of color as the enemy, it’s no wonder that police encounters with people of color too often turn deadly.

Unfortunately, officers who kill people of color are rarely indicted, and virtually never convicted of excessive use of force.

It should be a basic, uncontroversial truth that “Black Lives Matter.” But every day, the American criminal justice system is at odds with that proposition.

On February 7, 2015, Staff Attorney Molly Tack-Hooper moderated a panel at the Pennsylvania Progressive Summit in Harrisburg called “Ferguson Is Everywhere.” This is adapted from her introductory remarks.

This post is part of a series in honor of Black History Month.

Thank You, Santa’s Helpers!

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

Last month, I blogged about the 41 children preparing to spend Christmas incarcerated at a family immigration detention center in Berks County. In past years, these children would have been released to stay with relatives in the U.S. while their immigration cases proceeded. But because of a new misguided and illegal federal policy of locking up asylum-seeking families as a means of deterring other Central Americans from seeking refuge in the U.S., dozens of children spent the holidays behind bars.

On December 16, the ACLU filed a lawsuit challenging the Obama administration’s no-release policy. In the days after that, I worked with the Berks facility to set up an online holiday toy drive for the children detained there—just in case Santa Claus couldn’t make it past security.

You—our members and supporters and colleagues and friends—responded quickly and generously to the toy drive. Less than 24 hours after I set up the gift registry, you had purchased enough toys for every child at Berks to receive a present on Christmas. Within a few days, you had bought every last toy on the registry, ensuring that every kid at Berks would have several presents on Christmas morning. And you didn’t stop there—you asked what else they needed. So after checking with the facility, we added some more games and winter clothes to the registry. And you bought many of those, too.

The staff at the Berks Center tell me that they took great pleasure in wrapping all of the gifts you donated and delivering them to the children on Christmas morning, and that the kids loved their presents. The staff asked me to pass along their thanks. The Center’s privacy policies prohibit them from sharing any photos with the children’s faces, but today they passed along a photo from Christmas morning of one of the facility’s littlest detainees.

Thank you for brightening his Christmas by giving him new toys of his own. Your support—not only of the toy drive, but of all of our work—is humbling and inspiring. We’ll keep fighting until the children at Berks have the gift of freedom, too.

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.

Does Santa Claus visit immigration detention facilities?

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

Santa-Claus-Sad-icon

This holiday season, there are 41 children incarcerated at Berks County Residential Center, an immigration detention center in Leesport, Pennsylvania. Some of these little detainees are toddlers. The youngest is just one year old. This year they’ll find out whether Santa can make it past security at a federal detention center.

Many of these children came to the United States with their mothers seeking refuge from the horrific violence that they suffered in Central America, and have already passed a “credible fear” determination, meaning there is a good chance that they will be granted asylum, giving them legal status to stay in the U.S.

In past years, the Department of Homeland Security typically would have released these families to stay with relatives in the United States as their immigration cases proceeded. Releasing asylum-seekers makes sense; Toy Drive families seeking asylum don’t need to be put in jail. Rarely do these women and children pose a threat to anyone, and they have every incentive to show up for court to pursue their asylum claims.

But now, instead of releasing these families as they await their asylum hearings, DHS chooses to imprison all of them, shipping them off to one of the newly created federal family detention centers around the country—the Berks Center in Pennsylvania, another facility in Karnes, Texas, and a brand new, larger facility in Dilley, Texas.

The Obama administration adopted this policy of categorically denying release to all asylum-seekers from Central America as “an aggressive deterrence strategy” after an increase this past summer in the number of Central American mothers and children coming to the United States. The idea is that keeping these mothers and children locked up for the duration of their immigration proceedings—no matter how unnecessary, no matter how unfair, no matter how traumatizing—will deter other Central American families from seeking refuge in the United States, reducing the overall number of Central American asylum-seekers. In other words, the 41 children at Berks are pawns.

The ACLU filed a class action lawsuit Tuesday challenging DHS’s “no-release” deterrence policy as a violation of federal immigration law and the U.S. Constitution’s guarantee of due process, both of which prohibit the blanket detention of asylum-seekers for deterrence purposes.

But for the 41 children currently detained at Berks County Residential Center, litigation is far too slow a fix when Christmas is just days away. The children who are old enough to write have written letters to Santa, hopeful that he can bring them a little bit of Christmas joy behind bars.

Rather than leave matters to Santa, I reached out to Carol Anne Donohoe, an immigrants’ rights advocate who represents many of the families detained at the Berks Center, who connected me with the Center’s Recreation Supervisor, Sandy Schlessman, to help Sandy organize a toy drive for the 41 children at Berks. The Berks Toy Drive registry contains a range of age-appropriate gifts approved by the detention center and reflect what many of the children at Berks asked for in their letters to Santa. There is also a toy drive for the children detained at Karnes, Texas, organized by a local church in partnership with Immigration & Customs Enforcement.

Word has already spread around the Berks Center that Santa is coming, and the children are very excited, so please give generously to help brighten their holiday season. At ACLU offices in New York, California, Washington, DC, Texas, and here in Pennsylvania, we’ll be doing our part this December—and all the rest of the year—to ensure that the Berks Center and other federal family detention centers don’t have to become regular stops on Santa’s route.

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.

A New Dawn for Immigrants?

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

(Obama Intends to Regularize Status of Millions Illegal Immigrants in America. credit: http://thespeaker.co/)

(credit: http://thespeaker.co/)

Last week, President Obama rolled out significant changes to his administration’s immigration enforcement program with a televised announcement and a series of Department of Homeland Security (“DHS”) memos detailing the changes. Since then, immigrants’ rights advocates have been poring over the memos trying to determine whether they foretell a new dawn for immigration enforcement or more of the same misguided and destructive immigration enforcement practices that for years have torn apart families at an alarming rate.

Not all of the announcements were good. The President announced that he will continue to pour resources into policing the southern border by further bulking up the largest law enforcement agency in the country—Customs and Border Protection—which has an appalling track record of violence without accountability.

But the new policies do contain much to celebrate, like executive actions that could temporarily shield more than 4 million undocumented immigrants from deportation by expanding the Deferred Action for Childhood Arrivals program and offering new relief from deportation for certain immigrant parents with children who are U.S. citizens or lawful permanent residents.

Among other positive changes, President Obama announced policies ending the controversial Secure Communities (“S-COMM”) program and constraining immigration authorities’ much-criticized use of ICE detainers. S-COMM is dead, to be replaced by something called the Priority Enforcement Program (“PEP”). It remains to be seen, however, just how much the problems that plagued S-COMM will persist under PEP.

Havoc Wreaked by S-COMM and Detainers
Secure Communities was, at its core, a program of collaboration between federal immigration authorities and local law enforcement agencies that used local resources to identify people subject to deportation. Under Secure Communities, every time anyone was arrested and booked by a police agency, their fingerprints were run through DHS’s immigration database. The lynchpin of S-COMM was the ICE detainer (or “immigration hold”), a request from ICE to a local law enforcement agency to imprison someone in custody past the time when they would otherwise be released from the criminal justice system in order to give ICE extra time to investigate the person’s immigration status. Although Secure Communities was intended to focus immigration enforcement resources on people with serious criminal convictions, in reality, S-COMM ensnared non-citizens from all backgrounds, fueling the mass deportation of valuable members of society and ripping apart families. Deportations reached record highs on President Obama’s watch.

The ACLU’s Detainer Litigation and Advocacy
The ACLU has long had concerns about the myriad civil liberties problems posed by S-COMM and ICE detainers. In March 2014, I testified at a Philadelphia City Council hearing that ICE detainers are often issued without any legal basis, can lead to racial profiling, and undermine trust in the police, threatening everyone’s safety.

In Pennsylvania, the kind of routine collaboration between local law enforcement and federal immigration officers engendered by S-COMM led to the illegal 3-day imprisonment in Lehigh County Prison of Ernesto Galarza, a U.S. citizen born in New Jersey, on an immigration detainer. After he was arrested on criminal charges (of which he was later acquitted), local police racially profiled him as being an undocumented immigrant and notified ICE of his arrest. ICE then issued a detainer to give itself more time to investigate Mr. Galarza’s immigration status. So when Mr. Galarza posted bail, instead of being released and reunited with his family, he was held for 3 more days, without any explanation or any opportunity to demonstrate his U.S. citizenship.

The ACLU and ACLU of Pennsylvania sued, and on March 4, 2014, won a huge victory when the Third Circuit became the first federal Court of Appeals to rule that local agencies do not have to comply with ICE detainer requests, and can be held liable for their role in causing an unlawful detention when there is no constitutionally valid basis for the detainer. In light of that ruling, in April 2014, Lehigh County paid Mr. Galarza $95,000 to settle his case and agreed to adopt a policy of no longer honoring ICE detainers without a court order.

Shortly after the Galarza ruling, Mayor Nutter issued an executive order directing Philadelphia facilities not to honor any ICE detainer requests without a judicial warrant. In August 2014, the ACLU-PA, working with PICC, Juntos, New Sanctuary Movement of Philadelphia, and NDLON, wrote to county officials all over the commonwealth to alert them to the court ruling in Galarza and urge them to adopt local policies of declining ICE detainer requests that are not accompanied by a judicial warrant. At last count, 40% of the counties in Pennsylvania reported that their facilities will no longer honor ICE detainer requests without a court order.

The End of S-COMM and Routine Detainers
Last week, the President acknowledged the many failings of S-COMM and the problematic use of detainers and discontinued Secure Communities:

“[S-COMM] has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation. A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers issued under the current Secure Communities program.”

Under the new executive action, S-COMM will be replaced by the “Priority Enforcement Program” (or “PEP”). S-COMM and PEP have some features in common. Importantly, fingerprint-sharing of all arrestees with DHS for immigration enforcement purposes will continue under PEP—without any limitations. And DHS can still ask local law enforcement agencies and jails for notification when a non-citizen is scheduled to be released from local custody. But when it comes to actually issuing detainers and taking non-citizens into federal custody for immigration proceedings, PEP appears to constrain federal agents in ways that S-COMM did not.

According to DHS, under PEP, ICE will seek to transfer from local custody into immigration detention only certain “priority” non-citizens, including anyone believed by ICE to pose a threat to national security, as well as people engaged in terrorism or gang activity or convicted of certain crimes (any non-immigration-related felonies or a significant misdemeanor or 3 or more non-immigration-related misdemeanors). Further, under PEP, ICE is only permitted to issue detainers asking for a local agency to detain someone for ICE in “special circumstances” and only if the person is subject to a final order of removal or ICE has “other sufficient probable cause” to believe that the person is deportable.

DHS has yet to clarify the exact contours of ICE’s marching orders under these new policies; the policy memos are susceptible to several interpretations. And only time will tell how PEP is actually implemented. But the President’s acknowledgement that our immigration system badly needs fixing and that S-COMM was a failure—and his efforts to try to fix what he can—are welcome signs of change.

Molly-Tack-Hooper Molly 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.

U.S. Army Veteran Jailed by Immigration Authorities for Nearly 1,000 Days

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

York County Prison: Male Wing (source: www.informationng.com)

York County Prison: Male Wing (source: www.informationng.com)

Jose Juan Chavez-Alvarez had a day in court on Tuesday — or his attorneys did, anyway. He wasn’t there, because he has been detained by immigration authorities at York County Prison for 2 years, 5 months, and 15 days (and counting) without a bond hearing while his complex immigration case makes its way through the courts.

Mr. Chavez-Alvarez is a far cry from a “flight risk.” He came to the U.S. as a toddler nearly 40 years ago, and became a lawful permanent resident of the U.S. at 15. He honorably served in the U.S. Army for nearly a decade, earning several medals and achievement certificates. Today Mr. Chavez-Alvarez is a father to two teenage U.S. citizen sons, and he owns his home in Central Pennsylvania.

In 2000, while he was stationed in South Korea in the military, he was court-martialed and pled guilty to four non-violent military offenses related to a sexual encounter he had with a female service member following a night of drinking. He served his sentence of thirteen months for these military offenses. His criminal record is otherwise spotless.

Nonetheless, on June 5, 2012, ICE agents showed up at his home early in the morning to arrest him, alleging that he was deportable because of his military infractions more than a decade earlier.

He has been locked up at York County Prison ever since that morning. Mr. Chavez-Alvarez has now been in immigration detention for 898 days — more than twice as long as he spent in jail for his military offenses.

His immigration case is a strong one. There are several reasons why, his lawyer argues, he shouldn’t be deported.

So why is someone like Mr. Chavez-Alvarez with strong communities ties, who is not facing criminal charges or serving a sentence, and who may be fully entitled to stay in the U.S. languishing in jail?

A federal “mandatory detention” statute requires certain non-citizens in removal proceedings to be imprisoned while their immigration cases proceed. Because of this “mandatory detention” requirement, Mr. Chavez-Alvarez hasn’t had a bond hearing since he was whisked out of his home on the morning of June 5, 2012. He’s never had a chance to put up bail or prove that he’s not going to skip town before his immigration proceedings conclude.

This “mandatory detention” statute that has kept Mr. Chavez-Alvarez in immigration detention for nearly two and a half years now was never intended to authorize this kind of prolonged detention, said the Court of Appeals in 2011 in Diop, another ACLU case. To avoid constitutional problems, the court interpreted the statute to only authorize detention without a bond hearing for a “reasonable” initial period of detention. As the Supreme Court has noted, the length of detention contemplated by Congress when it passed this “mandatory detention” statute was between 1.5 and 5 months; when detention is prolonged beyond that threshold, it becomes increasingly constitutionally “suspect.”

But since the 2011 Diop decision, the government has not agreed to give a single non-citizen a bond hearing – even though many of them have been in immigration detention for years.

On Tuesday, Mr. Chavez-Alvarez’s lawyer and the ACLU as amicus curiae (“friend of the court”) urged the Court of Appeals to provide guidance to the lower courts and the government by ruling that there should be a presumption that immigration detainees get a bond hearing after 6 months of mandatory detention so a court can make an individualized determination about whether it is necessary to continue imprisoning people like Mr. Chavez-Alvarez during his legal proceedings.

As the ACLU told the court on Tuesday, because immigration proceedings are often long, drawn-out affairs – especially where the non-citizens have novel or complex claims about their right to remain in the U.S. – prolonged mandatory detention often discourages non-citizens from pursuing avenues of relief from deportation that they’re entitled to, because asserting your rights means spending years in jail – even if you win. Non-citizens shouldn’t have to accept years of imprisonment without a bond hearing as a condition of asserting their legal rights. No one should.

Arguing Tuesday on behalf of Mr. Chavez-Alvarez was former ACLU-PA staff attorney Valerie Burch. Michael Tan, from the national ACLU Immigrants’ Rights Project, argued on behalf of the ACLU and ACLU of Pennsylvania as amici curiae.

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.

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

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.