News & Commentary

This past weekend, the national board of the ACLU convened an emergency meeting to respond to the events at the Capitol building on January 6. After hours of deliberation, the board voted unanimously to

Last week’s physical and civic violence at the U.S. Capitol has raised a terrifying set of questions about American democracy, including the potential complicity of law enforcement in insurrection. The president-elect joined the entire freethinking world in noticing that, if Trump’s mob had been Black, it would not have received the same concierge service. But Trump’s coup attempt was not the only law enforcement catastrophe last week: We cannot forget that, two days earlier, Kenosha County, Wisconsin District Attorney Mike Graveley chose not to charge police officer Rusten Shesky for shooting Jacob Blake seven times at close range, in front of his children, paralyzing him for life.    Last Tuesday, in what was already the prosecutorial equivalent of a Friday news dump — the day of a double-feature Senate runoff and the day before a contested Presidential certification — Graveley announced the non-charges and gave a press conference defending his decision. Graveley’s presentation was a master class in white aloofness and Black victim blaming. Graveley spent slide after slide on Blake’s thin criminal history, implying strongly that this justified his fate. He relied on tired tropes of untamable Black male aggression, including using the fact that Blake dared to remove the taser cables that were electrocuting his body as proof of the need to shoot that body over and over. And in playbook fashion, the good DA urged the Kenosha community to heal at the very moment he was twisting the knife.    To be fair, Graveley approached this case in a moderately more defensible fashion than most. Back in September, Graveley asked the feds to open a parallel civil rights investigation into the shooting, asserting that Kenoshans “deserved a second opinion.” He also invited the appointment of Noble Wray, a former Milwaukee police chief and self-proclaimed police reform proponent, to serve as an “independent” use-of-force expert. He even exhibited the barest modicum of racial humility, admitting yesterday, “I have never in my life had a moment where I had to contend with explicit or implicit bias based on my race.”    Our movement for racial justice and law enforcement accountability, which has steadily built steam in recent years, clearly influenced Graveley’s approach to the case. This is a good thing. However, Graveley’s efforts can also fairly be viewed as elaborate hide-covering. The parallel investigations by the DOJ and Wray could not force Graveley to charge these officers, but they sure made it easier for him not to. Wray’s report in particular was the rubberiest of stamps, and a missed opportunity to address not only Shesky’s tactical errors — namely, unnecessarily re-engaging with Blake — but the systemic issues that allowed a man like Shesky to do that with impunity. Graveley cannot take credit for bringing in an outside “reformer” if that person’s report doesn’t say a word about reform.   And Graveley’s concession regarding race is the coldest of comfort. The decision not to charge, buttressed by racialized victim shaming and unaccompanied by any concrete suggestions for reform, makes clear that he still hasn’t meaningfully “contended” with the bias within himself or the law enforcement infrastructure he leads. And for all his words and PowerPoints, he did nothing to heal a battered community — one simultaneously dealing with Kyle Rittenhouse’s not-guilty plea and the white nationalist protests that accompanied it. And he did nothing to ensure that this never happens to them again.   At the end of the day, prosecutors like Graveley depend on the police for leads and testimony, and are typically elected on tough-on-crime platforms. Hence, protecting their friends in blue is almost always the self-interested move for prosecutors, particularly in places like Kenosha. Graveley ultimately caved to that deeply ingrained incentive structure, and no amount of procedural window-dressing can change that.   More broadly, this is yet more proof of America’s debilitating obsession with criminal law as panacea. Consider this: In Breonna Taylor’s case, law enforcement grossly over-enforced a meaningless drug investigation, killing an innocent young woman. In the Nashville bombing case on Christmas morning, police likely under-investigated a dangerous situation, glibly claiming that their failure was only clear in hindsight. In Kenosha, as in countless communities across the country, a district attorney yet again over-protected his police benefactors and under-valued the pain of the Black community. And then, of course, came the grotesque failures in D.C. The common thread: Each time we relied primarily on law enforcement to address a real or perceived societal problem, and each time law enforcement failed. The obvious takeaway should be to stop using law enforcement as the primary solution to so many of our problems. Instead, we need a far more holistic, far less punitive approach to harm reduction than we’re currently employing — one that values public health over incarceration and prevention over post-hoc prosecution.    In this context that means, at the very least, more stringent use-of-force standards; better understanding of and counterprogramming to anti-democratic extremism, particularly deep online; non-police responses to a wider swath of calls for service; eliminating immunity doctrines to better deter misconduct by both police and prosecutors; and building upon Graveley’s laudable but ultimately insufficient attempts to create independence between those institutional actors, when more foundational reforms are still unable to prevent tragic situations like Jacob Blake’s. And it does not mean creating new criminal laws or expanding investigative powers for law enforcement, even in the wake of tragedy — these would only entrench the prosecution-forward approach that allowed these disasters in the first place.   This rethinking of our national approach to justice won’t eliminate all criminal activity overnight. The criminal law will and should persist. But if we can’t right-size and refocus it on true public health and public safety, we’re doomed to continue watching prosecutors and police serve and protect each other instead of us.  

In its first decision on abortion since Justice Barrett’s confirmation, the Supreme Court granted the Trump administration’s request

As the COVID-19 pandemic stretches on and worsens, people across the country face the devastation left in its wake. The public health and economic consequences of the pandemic have cost millions of people their jobs and the ability to pay rent — leaving far too many renters facing the added threat of eviction and losing their homes. The patchwork of responses has yet to slow down the eviction crisis thus far. Congress first responded through the CARES Act by putting a halt on evictions with a moratorium for a fraction of tenants across the country, but this expired in July 2020. In September, the Centers for Disease Control and Prevention adopted another moratorium protecting more renters until the new year. Congress then extended that moratorium for one month. Despite this, heading into January, up to 14 million households were at risk of eviction, and the rental assistance provided by Congress in the stimulus bill will reach some too late and others not at all. And come Jan. 31, 2021, the federal moratorium — as well as many of the remaining local and state moratoria on evictions — is set to expire. This will leave millions of families and communities unprotected from the threat of eviction. Once these tenant protections end, landlords will not hesitate to pursue mass evictions. Data from the Eviction Lab shows that landlords have filed evictions in droves the moment federal, state, and local moratoria have ended, and in some jurisdictions, eviction filings are actually increasing despite the moratoria that are still in place.  Eviction court proceedings are skewed to favor landlords and evict people from their homes. Eviction proceedings historically have been unfair and imbalanced. In the courts, the odds are stacked against tenants: 90 percent of landlords are represented by legal counsel in evictions, but fewer than 10 percent of tenants have representation.  This isn’t surprising considering many tenants are facing eviction because of unforeseen circumstances or financial stress that prevents them from being able to afford their rent, let alone counsel. Others lack the ability to go to court due to employment, child care, or transportation restrictions. On top of this, tenants have few options for legal aid and legal services programs, and legal aid has always been underfunded. Any defenses that are available to a tenant are virtually impossible to prove without a lawyer. As a result, tenants default at high rates, and landlords count on this imbalance to file meritless eviction cases. This systematically sets up tenants to fail, forcing them to leave their homes and leaving them to deal with the devastating, long-lasting impacts of eviction.  Black tenants — especially Black women — disproportionately face the threat of eviction.  Due to decades of inequalities in our housing system, communities of color and low-income women feel the impacts of eviction the most — Black women in particular. Boulder, Colo. and Baltimore. And these measures actually work. 86 percent of tenants who had representation as a result of New York City’s right to counsel legislation were able to remain in their homes. In San Francisco, the eviction filing rate decreased by 10 percent between 2018 and 2019, and of those receiving full representation, 67 percent stayed in their homes. Providing a right to counsel allows people and families to keep their homes and communities, and in the time of a pandemic, promotes public health.  Federal and state governments need to take action to protect tenants from mass evictions.  With the federal eviction moratorium set to end on Jan. 31 and no additional federal emergency rent relief in sight, it is paramount for Congress, states, and cities to act — and supporting right to counsel measures must be key to addressing mass evictions. The emergency package that passed Congress and was signed into law on Dec. 28 fell far short, extending the moratorium only until the end of January, providing a fraction of what is needed in rent relief, and allocating only $20 million in total for tenant representation while failing to explicitly address right to counsel. The ACLU and National Coalition for a Civil Right to Counsel call on the federal government to provide funding support for cities and states that implement a right to counsel for tenants in eviction proceedings, as well as to implement a fully effective moratorium on evictions and additional rental assistance for tenants.  We need meaningful action to stop mass evictions during the pandemic and beyond. All people — regardless of their circumstances or background — should have access to safe and stable housing.

The United States has made a commitment — by law and by treaty — to protect people who come to this country fleeing persecution. But the Trump administration relentlessly attacked people seeking protection and the very concept of asylum. It is now nearly impossible for anyone to secure asylum, no matter how strong their claim or fear. President-elect Biden has the opportunity to restore our asylum system, as he has promised to do. Unwinding Trump’s harmful and unlawful policies will be just the start to making our system more efficient, fair, and humane. A reversal is simply not enough — we must build our asylum system back better.     The asylum system Trump unilaterally destroyed was in place since 1980 when Congress to cloak the order in public health justifications, numerous public health experts denounced the policy and explained why it does not protect this country’s health. CDC’s own experts reportedly objected to the policy and refused to support it in court; it was implemented only after the White House pressured the CDC to accept it. As public health experts have explained, the government has the means to safely process people seeking protection while safeguarding the health of U.S. residents. Third, President-elect Biden must act quickly to end Trump’s two illegal asylum bans. The first bans anyone who entered the U.S. between ports of entry, even though U.S. laws state that it does not matter how a person enters if they are fleeing danger. The second bans anyone who travels through a third country to reach the U.S., unless they first apply for and are denied asylum in a third country — impacting nearly every non-Mexican asylum seeker. It is a naked attempt to deny as many people as possible, regardless of their need for protection under our laws. While the ACLU and partners quickly blocked the first asylum ban, the second ban had disastrous consequences for people seeking asylum before a judge vacated it in June 2020. But, the Trump administration has doubled down, issuing a new version of the second ban at the eleventh hour that takes effect just a day before inauguration. Biden must quickly rescind both bans. These are just the tip of the iceberg. There are numerous disastrous anti-asylum policies that Biden must promptly stop, including:

This month, two newly-elected sheriffs canceled contracts with Immigration and Customs Enforcement (ICE). The sheriffs in Gwinnett County, Georgia and Charleston County, South Carolina were elected in November in part due to their campaign pledges to stop doing ICE’s bidding under a program known as 287(g). Voters in Cobb County, Georgia, also replaced a sheriff who conspired with ICE with an opponent of the 287(g) program. These election results came after a multiracial coalition of organizations worked to build community power, elevate the voices of immigrants, and publicize the harms of a program that leads to civil rights violations, including racial profiling, and puts immigrant families at risk. The 287(g) program compels local law enforcement agencies to conduct federal immigration enforcement, including interrogating people in jails about their immigration status and initiating the deportation process. But all too often it ends up  creating a chilling effect that dissuades immigrants from reporting crimes, seeking protection, or serving as witnesses for fear that the very agencies meant to protect them may instead try to deport them. Law enforcement agencies with 287(g) agreements waste millions of local tax dollars on federal enforcement all while undercutting their safety mission by destroying community-law enforcement relationships and diverting attention from local priorities. As Mecklenburg County, North Carolina, Sheriff Garry McFadden noted when he ended the county’s agreement, 287(g) “erodes trust with our community and ties up critical resources that should be used to ensure public safety,” and Charleston County Sheriff Kristin Graziano criticized the program as “legal racial profiling.” The program has created a climate of fear, as immigrants who live in 287(g) jurisdictions could end up in deportation proceedings for such “offenses” as failing to yield while turning or eating lunch outdoors. Many residents also report that they have been profiled while driving because of their race or appearance, pulled over by police pretextually — for traffic violations or no reason at all — so that police can question their immigration status. All too often, they are left in the custody of sheriffs with egregious track records. Gwinnett County, which had the most active 287(g) program in the country, had to pay millions in settlements after a pattern of sheriff deputies wantonly assaulting detained people was revealed. The previous sheriff of Cobb County, who was the first in Georgia to sign a 287(g) agreement, oversaw over 50 jail deaths while in office; meanwhile, the former sheriff of Charleston County, the largest county in South Carolina to have a 287(g) agreement, was once arrested for assaulting a detained individual. Sheriffs rarely face election challengers, but these sheriffs or their hand-picked successors all lost running on a pro-ICE platform, with voters resoundingly rejecting their anti-immigrant policies. Other jurisdictions that ended their contracts in recent years include Mecklenburg and Wake counties, North Carolina; Las Vegas, Nevada; Harris County, Texas; Anne Arundel County, Maryland; and Prince William County, Virginia. While this program preceded Donald Trump, it exploded under his leadership, as former

Some dyed in the wool civil libertarians have criticized the ACLU for supporting Donald Trump’s impeachment. These critics maintain that our commitment to the First Amendment should solely trigger a defense of the president’s “free speech.” But freedom of speech poses no bar to holding a president responsible for his unfounded, bad-faith effort to subvert the results of a free and fair election. Our board — comprised of leading lawyers and activists from every state and the District of Columbia — is a thoughtful, deliberative body of committed civil libertarians. After meetings on both Saturday and Sunday, the ACLU board unanimously passed a resolution again calling for President Trump’s impeachment, which can be found here. We discussed at length the free speech implications of this impeachment process. We concluded that President Trump’s remarks on Jan. 6 can be considered part of a pattern of efforts to upend an election he lost. If a president’s repeated lies, illegal political pressure, and the stoking of a mob to subvert the democratic process are not an abuse of power warranting impeachment, it is difficult to know what would be. Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this. It does not single out Trump’s speech on Jan. 6 inciting a mob, but rather identifies it as part of a pattern of “efforts to subvert and obstruct the certification results of the 2020 presidential election,” including the improper pressure placed on Georgia Secretary of State Brad Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results and threatened Mr. Raffensperger if he failed to do so.” The ACLU believes a president can be impeached for speech that a private citizen could not be prosecuted for. First, proceedings to impeach and remove a president are not criminal proceedings. They specifically seek to remove the president from office. While the First Amendment would likely bar the criminal conviction of a private citizen for the president’s Jan. 6 speech, impeachment is a political remedy: to remove an executive official who has abused his office, not to convict them of a criminal offense. The Supreme Court has long held that public employees can be fired for on-the-job speech that would be fully protected from criminal prosecution. Whether the president has any First Amendment rights when speaking in his capacity as president has never been established. At a minimum, because of his role and authority, the president does not have the same freedom of speech as an ordinary citizen. The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity. As a matter of law, public employees are regularly sanctioned for speech that fosters a hostile work environment. Their public position imbues their speech with more influence than the average citizen — as the saying goes, with great power comes great responsibility. It follows that President Trump doesn’t have unfettered free speech rights to subvert the results of a fair and free election. In short, a president who recklessly urged his followers to violate the law could be impeached even if an ordinary citizen could not be convicted for the same words, absent proof that his speech was intended and likely to produce imminent lawless action. Second, impeachment proceedings do not require conviction of a crime, but a determination by the House and Senate that the president has abused his office in such a serious manner that he should be removed. “High crimes and misdemeanors” don’t have to be actual crimes or misdemeanors, and surely recklessly urging an unruly mob to intimidate members of Congress performing their constitutional duties, in order to undercut the results of a free and fair election, is sufficient. No organization or individual has more consistently stood up for the free speech rights of individuals than the ACLU. From our defense of labor activists’ speech in the 1920s and 1930s, to Skokie, to Charlottesville, to our defense of BLM protesters, to the student free speech case the Supreme Court agreed to hear just last week, my organization steadfastly defends the First Amendment rights of individuals, no matter the popularity of their speech. Part of that legacy is our landmark Supreme Court case, Brandenburg v. Ohio, which established First Amendment protections in the context of criminal prosecution for incitement of violence. That case ruled that even explicit advocacy of criminal activity is protected unless the individual’s speech is intended and likely to produce imminent lawless action. As proud (and protective) as we are of our Brandenburg precedent, we don’t believe that case should stand in the way of impeaching Donald Trump. This civil libertarian can sleep well at night knowing that the First Amendment can be preserved, and Donald Trump can be impeached. In these hyper-partisan times, it is no surprise that leading critics of the ACLU might wish to deride us for allegedly sacrificing our commitment to the First Amendment in favor of punching down at an increasingly unpopular president. But as is reflected in our board’s thoughtful second call for Trump’s impeachment, our allegiance has always been, and remains, with the Constitution. I also sleep soundly because I fundamentally believe that our society is finally grappling with complicated issues of race, rights, and freedoms that it long overlooked or took for granted. Recent debates about Twitter’s barring of Trump permanently, the racially disparate treatment of BLM protestors and white supremacist insurrectionists by law enforcement, and the impeachment of President Trump have led to a soul-searching debate that will make this country better and stronger in the long run. Indeed, Donald Trump’s most lasting legacy may be that he catalyzed a “resistance” movement that will transform into a deeper commitment to social justice and constitutional norms. It is this invigorated movement that will shape the work of the next administration. Good night and good bye, President Trump.

We generate droves of personal data every time we use the apps on our phones, make a call, or make an online purchase. While we might hope that our data is kept private, hidden away from people or entities that may want to surveil our usage or capitalize on these private choices, it often isn’t. In November, news reports revealed that the federal government had purchased location data mined from apps used by Muslims. One of those apps is Muslim Pro, a GPS-reliant app that signals prayer times to its users, which has been downloaded by millions. It’s not yet clear exactly how the data is being used, but many users of the app have already reported deleting it to avoid being surveilled. “I think I was both shocked and not surprised at the same time,” NowThis journalist Aliya Karim told At Liberty of the moment she learned about the data sale. “Shocked because something as personal as a prayer app kind of felt like it should have been safe from this type of intrusion. But then on the other hand, I wasn’t surprised because it feels like we Muslims are being watched by the government all the time anyway.” Karim joined At Liberty alongside Tarek Ismail, a senior staff attorney at the CUNY School of Law’s Creating Law Enforcement Accountability and Responsibility (CLEAR) Project. Listen as they discuss the repercussions of this breach of privacy, and what steps organizations like CLEAR and the ACLU are taking to keep private data safe and hold the government accountable.