News & Commentary

In a banner day for police reform, the city of Milwaukee has entered into a settlement agreement to end practices amounting to a decade-long stop-and-frisk program that resulted in hundreds of thousands of baseless stops as well as racial and ethnic profiling of Black and Latino people citywide. The agreement provides a roadmap for how the Milwaukee Police Department and Fire and Police Commission must reform to protect the constitutional rights of the people they serve. The reforms are local, but the implications are national. This settlement sends

Freedom fighters around the globe commemorate July 13 as the day that three Black women gave birth to a movement. In the five short years since #Black LivesMatter arrived on the scene — thanks to the creative genius of Patrisse Cullors, Alicia Garza, and Opal Tometti — the push for Black liberation from state-inflicted violence has evolved into one of the most influential social movements of the post-civil rights era.  Black Lives Matter has always been more of a human rights movement rather than a civil rights movement. BLM's focus has bee

Judges “must interpret the law, not make the law,” observed Judge Brett Kavanaugh in accepting Donald Trump’s designation to fill Justice Anthony Kennedy’s seat on the Supreme Court.  This oft-repeated assertion is an invention of conservatives who seek to criticize and curtail rights-enhancing decisions of the Supreme Court. But the assertion that judges should not make law rests upon a fundamental misunderstanding of the role of judges within our common law tradition.It is a hallmark of our common law system that judges not only resolve the controversies before them but, in doing so, write opinions that explain their decisions and identify the legal principles and factual conclusions upon which the decisions rest. These opinions are designed to persuade the litigants and the public that the case was decided fairly and in accordance with law. But the written opinions also serve as a source of law for future controversies. In this way, common law courts resolve individual disputes and, at the same time, issue opinions that create legal precedent which guides future behavior and informs subsequent adjudications.  In writing opinions that will serve as precedent and in relying on precedent as a sou

As President Trump visits the United Kingdom, the focus has been on strained trans-Atlantic relations, his intervention in domestic politics, and massive public protests. A different, diplomatically-couched protest has received less attention but sends a con

During the last hearing in the ACLU’s family separation case on July 10, Judge Dana Sabrow asked the ACLU for suggestions as to what the court should do should the government fail to comply with the court-imposed deadlines to reunite the children with their parents. As has now been widely reported, and as we made clear in our

Despite requests from a senator and the European Union, the Trump administration is refusing to make public an important report by a federal privacy watchdog about how the U.S. government handles personal information swept up by its surveillance. The public has a right to know what the government does with the vas

Learn about what's happening across the most pressing civil liberties issues of our time, and what you can do.

Beginning in 2010, a Connecticut man, Almighty Supreme Born Allah, spent over six months in solitary confinement. He was alone for 23 hours a day, allowed to shower just three times a week in underwear and leg shackles, and permitted only one 30-minute visit each week with a family member, whom he was not allowed to embrace, let alone touch. Studies have shown that this kind of isolation can result in clinical outcomes similar to those of physical torture, which is why numerous international human rights bodies have condemned the prolonged use of solitary confinement.The twist on this twisted set of punishments?Allah had not been convicted of a crime when he was put in solitary confinement. He sued, and four federal judges agreed with Allah that this treatment during pretrial detention violated his constitutional rights. And yet, he lost his case because of a rule called qualified immunity that the U.S. Supreme Court created in the 1980s. As William Baude, a constitutional law professor from the University of Chicago, explains, “[t]he doctrine of qualified immunity prevents government agents from being held personally liable for constitutional violations unless the violation was of ‘clearly established’ law.”To understand how this works you have to start with a federal law called section 1983, which holds state and local government officials liable for money damages in federal court if they have violated constitutional rights. This law has been on the books since 1871, and it was originally enacted to stop law enforcement from ignoring the lynching of newly freed Black citizens.But while section 1983 was intended to increase accountability for government officials who break the law, the Supreme Court created a giant loophole that undermines that goal, making it virtually impossible for government officials to be held personally liable for wrongdoing. That loophole is qualified immunity, which either the Supreme Court or Congress could fix to ensure constitutional misconduct does not go unpunished.Since the creation of qualified immunity, the rule has snowballed out of control. As the judges on Allah’s case explained, the rule now allows “all but the plainly incompetent or those who knowingly violate the law” to defeat lawsuits brought by the victims of government overreach. The result, as Justice Sotomayor recently argued in a dissent, is that “palpably unreason­able conduct will go unpunished.”That’s exactly what happened in Allah’s case. In 1979, the Supreme Court held in Bell v. Wolfish that under the Constitution’s Due Process Clause, pr

On July 11, the state of Nevada will execute death-row prisoner Scott Dozier. To do so, the state has decided to use an experimental protocol that incorporates a drug — Midazolam — that has been associated with multiple botched executions across the United States. Allowing the government to execute a person using a protocol that risks torture would be a grave injustice. Nevadans must demand better.  The road to this upcoming execution has been a tumultuous one.  The state previously planned to exe