News & Commentary

We usually know what to expect on any given presidential Election Day. After all, they happen every four years. But this is the first election in our lifetime to occur during a global pandemic, and there have already been significant changes to the electoral process as more voters plan to mail in their ballots than ever before. How will that change our quintessential American tradition of watching the results roll in on election night? 

It’s after Labor Day, the weather is changing, leaves are turning, which all means — Election season is officially here. November 3 is now less than 50 days away, and we at the ACLU have been working for months nationwide to ensure voters safe and secure access to the ballot and to protect everyone’s rights while voting — and now that time is here. During the COVID-19 pandemic, it is essential that we not only protect our health but also our civil liberties — including our fundamental right to vote. It’s on all of us to make our plan to vote. Today is not too early to act. 

Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what Alina Das asks in her new book, No Justice in the Shadows. She delves into her experience as the daughter of immigrants, an immigration attorney, and a clinical law professor to explore the intersection of immigration and the criminal justice system. Too often, she argues, our immigration system is used as a tool of discrimination and oppression, rather than as a tool of justice, and the consequences are dire. Our current immigration system is breaking up families, and forcing people to face persecution — even death — in their home countries, and it’s all based on a false premise of ensuring public safety and national security. Das joins At Liberty this week to discuss her book, and how we need to fundamentally reenvision the immigration agencies in our country, which she says are ultimately charged with enforcing laws rooted in white supremacy.

Earlier this month, Mississippi federal court judge Carlton Reeves reluctantly held that a white police officer who detained, interrogated, and illegally searched Clarence Jamison, a Black man driving a Mercedes-Benz, for nearly two hours despite clearing multiple background checks, could not be held accountable for his actions. Why? Because his hands were tied by qualified immunity. Judge Reeves relates his frustration in his opinion:   “Judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.”   Qualified immunity is a legal defense that can shield police officers from liability for misconduct. Once an obscure legal doctrine, it has become a central focus of activists’ calls for police accountability following nationwide protests over police brutality. In fact, officer Derek Chauvin, the cop who killed George Floyd by kneeling on his neck for over eight minutes in a video seen around the world, might evade accountability in a civil suit through qualified immunity.   The Supreme Court created the first version of this defense more than 50 years ago as a limited amendment to the Civil Rights Act of 1871, also known as the “Ku Klux Act” because it was meant to protect the rights of freed slaves after the Civil War in the face of the Klan’s reign of terror. Under Section 1 of the act, now referred to as Section 1983, people were given the right to sue state government officials for violating their constitutional rights and hold them liable for damages.   Starting in 1967, though, the court amended the law — officers would be shielded from liability if they could show that they acted in “good faith” and had “probable cause” for their actions. Over time, the court has stretched the doctrine to where it is today: An officer who has violated the Constitution cannot be held liable for damages unless the violation was so “clearly established” in the law that any reasonable officer would have known that their actions were unlawful. This requirement is nowhere to be found in the Constitution or any federal statute. Nevertheless, the Supreme Court has developed an absurdly narrow definition of what counts as “clearly established” law.        To meet the “clearly established” standard, the burden is now on the victim to find a previous case with facts nearly identical to their own. This is the burden that fell on Alexander Baxter, whom the ACLU represented in a petition that the Supreme Court recently denied. Mr. Baxter, homeless at the time of his arrest, was chased by two Nashville police officers and a police dog into a basement following a report of a residential burglary in 2014. Once there, Mr. Baxter surrendered by sitting on the ground and raising his hands into the air. Still, the officers unleashed the dog, which bit Mr. Baxter’s armpit, sending him to the hospital for immediate medical attention.   Without formal legal assistance and with limited access to the prison’s law library, Mr. Baxter later filed a hand-written complaint from prison, but a federal appeals court granted qualified immunity to the officer. The reason for qualified immunity? Mr. Baxter surrendered by sitting on the ground with his hands up, whereas in the closest prior case, the court ruled in favor of a victim who surrendered by lying down.   Yep, that’s it. Because Mr. Baxter could not point to a previously decided case where the suspect had also surrendered by sitting down with his hands up, the officer was off the hook. According to the Sixth Circuit Court of Appeals, without a case with identical circumstances, there was no way for the officer to clearly know that what he did was wrong.   But it’s even more problematic than that. Because the Sixth Circuit did not reach the question of whether the conduct was, in fact, illegal, the law still doesn’t clearly establish that police may not order a canine attack on a suspect who surrenders by putting their hands up. This means another officer could claim immunity for the same behavior in the future. It’s a never-ending catch-22: A victim must cite exact legal precedent to win their case, but because judges dismiss so many cases over slight twists of facts without deciding whether the underlying government conduct is unconstitutional, it’s increasingly difficult to create any legal precedent.   As District Court Judge Reeves writes in his powerful opinion, “Let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”   Qualified immunity is one reason why police are emboldened to use excessive force without fear of repercussions. They know the law protects them, even if they may be violating the Constitution — a fact driven home by Judge Reeves as he lists a handful of the Black people killed at the hands of police. Senseless shootings like Jacob Blake’s and Dijon Kizzee’s will continue occurring because police officers are essentially allowed to gun down Black people with impunity. This is the abhorrent cost our society pays for qualified immunity.   Still, there is hope. More lower courts and even Supreme Court justices themselves are starting to question the doctrine, as indicated by Justice Thomas’ dissent from the Court’s decision not to take up Mr. Baxter’s case. It is no longer blindly accepted that the need to shield police officers from financial burden is more important than the need to hold them accountable and protect the rule of law. In fact, officers are virtually never at risk of monetary liability and have contributed to payments in less than one-half of 1 percent of civil rights damages actions. Most costs are paid by municipalities, insurance companies, or unions.   The Supreme Court should abolish qualified immunity and return Section 1983 to its original meaning. At the very least, it needs to give guidance to lower courts to make clear that a case with identical facts is not necessary to hold officers liable for their conduct. While these reforms will never repair the harm done to many lives or heal the trauma Mr. Baxter experienced, they will deter future police unlawfulness and, when such abuse occurs, increase the chances that its victims are compensated for the harms suffered.   Communities must also demand that other actors — Congress, police chiefs, mayors, and prosecutors — abolish the doctrine and begin funneling resources away from law enforcement and into community services like housing, education, accessible health care, and violence prevention programs. If we truly want systemic changes to policing, these are the institutions that will help communities grow and thrive. 

Six months into the COVID-19 pandemic, it is devastatingly apparent that the United States’ longstanding racial inequalities have only been amplified during this crisis. Nowhere is that truer than in health care, including reproductive health care.   Even before the pandemic, people of color faced severe barriers to accessing essential reproductive health care as a result of interrelated factors such as structural racism, gendered oppression, and associated economic disparities. Abortion restrictions, such as bans on insurance coverage for abortion or laws mandating delays in abortion care and an extra unnecessary trip to the clinic, have a disproportionate impact on women of color. And Black women are still over three times more likely to die from pregnancy or childbirth than white women. These inequalities, sued over this very requirement on behalf of a coalition of medical experts and reproductive justice advocates, arguing that it is an unconstitutional restriction on abortion access and places people, particularly people of color, at serious risk during the pandemic by requiring medically unnecessary travel and in-person interactions that needlessly increase exposure risks.   In a tremendous victory for people who need abortion care, we won: A federal district court ruled that the FDA must suspend enforcement of this requirement for the duration of the public health emergency. But the Trump administration is not giving up the fight; undeterred by their failed attempts to defend this restriction in the lower courts, they have now taken the extraordinary step of asking the Supreme Court to step in.   There’s no question that the FDA’s policy — and the Trump administration’s insistence on reinstating it — is a direct attack on the health and safety of people of color. Sixty percent of people who receive abortion care are people of color, including 53 percent who identify as Black or Latinx. As has been well documented, people of color are suffering higher rates of severe illness and death from COVID-19 than white people, both because they experience higher rates of preexisting medical conditions that increase the severity of COVID-19, and because they are

Westlaw and Lexis databases are the backbone of every ACLU lawyer’s job. Whether we’re filing legal briefs in court, lobbying for legislative change, or compiling research, the duo hold information that’s vital for our advocacy. Thomson Reuters, which owns Westlaw, and Reed Elsevier (RELX), which runs Lexis, are the two publicly-traded companies behind each of these products. Though they claim to “advance human welfare” and help their customers “move society forward” by providing the necessary knowledge, information, and analytical tools for researchers, lawyers, and government agencies, they are fueling the mass deportation and detention system. Together with Palantir, Amazon Web Services, and other data brokers, these private companies sell their data and tools to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Not only do the tech companies provide access to the sensitive personal information used to destroy communities, they undermine the rights that we and other legal advocates, researchers, and students work every day to protect.  Thomson Reuters and Reed Elsevier embody the burgeoning contradictions of technology companies that, in the same breath, claim to be in the business of public service, while enabling government agencies to engage in wildly unconstitutional tactics to arrest and incarcerate people in deadly conditions. Thomson Reuters, in addition to operating Westlaw — the mainstay of the legal community — sells access to CLEAR, a portal to billions of pieces of personal information that provides an “ever-evolving, 360-degree view of U.S. residents’ lives.” Not only does Thomson Reuters have contracts worth millions of dollars with ICE and CBP; records show that Thomson Reuters has an active role in finding and analyzing data for ICE. Records the ACLU published last year also reveal that CLEAR is a gateway for ICE to access the automated license plate reader database run by Vigilant — a private company that collects driver location information through street-level surveillance and sells the data to government and private entities. By selling this location data, the company allows ICE, CBP, and other agencies to circumvent the need to get a warrant or comply with other laws that apply when the agencies collect this information directly. For its part, RELX has contracted with ICE and CBP for access to its LexisNexis suite of services. Ultimately, Thomson Reuters and RELX store your valuable personal information — phone numbers, addresses, relatives, utility information, credit histories, social media, driver location coordinates, arrest and court records, and myriad other sources that paint a picture of where you live, worship, work, and shop — and then sell it to ICE and CBP. These technology and information services companies ensure that personal information is harvested, analyzed, and served up to ICE and CBP to facilitate their abusive and illegal practices.  This personal information is easily misused to harm marginalized communities: Police have used driver information gathered through license plate readers to target American Muslims and monitor the license plates of LGBT community members. Most recently, police in Colorado relied on an incorrect hit generated by a license plate reader to pull a Black family out of a rental car at gunpoint, mistakenly believing that plate belonged to a stolen motorcycle.   The professional ethics of legal representation and research require us to avoid actions that harm our clients and their interests. Conducting legal research that is critical to advancing our clients’ interests should be free of any concern that those tools are also being used to target, arrest, and subject our clients to

More than 20 years ago, 23-year-old Amadou Diallo was gunned down in front of his apartment in the Bronx by the NYPD. Diallo had been walking home when four officers mistook him for a suspect in a rape investigation, firing a total of 41 shots at him and hitting him 19 times after mistaking his wallet for a gun. All four officers were later acquitted of charges related to his death. Diallo’s death sparked a massive protest movement in New York City, with echoes of this summer’s demonstrations over the murder of George Floyd. Furious calls for police reform were dismissed by then-Mayor Rudolph Giuliani, who called the protests “silly.” In retrospect, the killing is a signpost in America’s long history of police violence against Black people, and a tragic symbol of how little has changed. What’s often lost in the memory of Diallo’s death, though, is the way it also highlighted the dangers that Black immigrants encounter in America. Diallo was of Guinean origin, arriving in New York just a little over a year before his death. He didn’t share much by way of background or life experiences with his Black American neighbors, but what he did share was the color of their skin.  Because of that, whether he knew it or not when he first arrived here, Diallo was living with the same risk of police violence that they were. For Black immigrants, life in the U.S. often means being encircled by the same systems of criminalization, profiling, and over-policing as Black Americans.   His death was an extreme example of that risk, but a police encounter doesn’t need to generate big headlines to have life-altering and even deadly outcomes for immigrants. Because ofatrocious conditions and abuse. Black immigrants fare particularly poorly in those facilities – one recent study found that they were placed into solitary confinement six times more often than other immigrants. In Louisiana, a group of detained Cameroonians have now been on a hunger strike related to conditions in the Pine Prairie ICE detention center for more than three weeks.   And while ICE doesn’t track racial demographic data of the people it deports, in the first year of the Trump administration deportations to countries in sub-Saharan Africa rose almost across the board. 

There’s not much that my brother Brian fears.    He’s 10 years older than me, a bear of a man physically, and his entire life he’s been a ball of energy. He coached my football team when I was a youth. He dreamed of becoming a business owner. The cleaning service he started from the trunk of his car grew into several companies with 50 employees. After a terrible car accident, he got a prison sentence, and has made it his goal to use that time to improve himself. He has a team of family and friends rooting for him, but no one is more optimistic than Brian about all of the things he’ll contribute once he’s out.   But when COVID-19 hit, that fearless outlook changed. The virus spread like wildfire through the New Jersey prison where he is incarcerated. Since March, he’s been scared out of his mind.    If my brother gets COVID-19, he’s never coming home. His release date is February 2021. If Brian contracts the virus, he will not make it. He’s 59, and has Type 1 diabetes, heart disease, and weight issues — all risk factors. During his sentence, medical staff left a catheter in for several months longer than they should have, and he nearly died from sepsis.   For my brother, every single day is literally the difference between life and death.   New Jersey has a shameful distinction when it comes to COVID-19: Despite success in containing the virus in other ways, the death rates in our prisons are the worst in the country.   There is currently legislation pending that could make New Jersey a leader in containing the pandemic, rather than a cautionary tale. This legislation, S2519/A4235, sponsored by Sens. Nellie Pou and Sandra Cunningham, Assemblyman Raj Mukherji, Assemblywoman Shavonda Sumter, and Assemblywoman Verlina Reynolds-Jackson, would release people from prison who have less than eight months to go on their sentence, advancing public health in two critically important ways. First, it would allow people to distance themselves outside of prison, an environment that’s like a cruise ship on steroids, where social distancing is impossible. Further, it would lower the prison population to make social distancing possible — not just for the people who are serving time, but for employees, medical staff, and the families they go home to.   Everyone who would be released under the legislation is getting out soon anyway. This bill would lessen the chance of dying in the short period of time before they can come home. Having passed through the New Jersey Senate last month, the bill must now be voted on in the assembly in order to go to the Governor’s desk.   If this legislation fails, the state of New Jersey sends the message that six extra months in prison is worth my brother’s life. As we’ve known since the pandemic began, it is imperative to reduce the prison population as quickly and safely as possible if we are to protect as many lives as we can from this deadly virus.   The possibility of death is extremely real. Through the course of fighting for my brother’s life, I’ve come to know Bernice Ferguson. Her son Rory had just celebrated his 39th birthday and was scheduled for release from prison within a matter of weeks. Bernice never got to throw the party she was planning to celebrate his homecoming. Instead, because he contracted COVID-19, she had to plan a funeral.   We are all human. We all make mistakes. My brother knows he made a serious one. He regrets it every single day, and he lives every day to make himself a better person. My 16-year-old son, inspired by the entrepreneurship of his uncle and godfather Brian, started a lawn care business of his own. For Brian’s 59th birthday, on Aug. 7, he sent his uncle a card with one simple message: “I just want my godfather to come home, so we can work together.”   Of the 3,000 people who would be eligible for release under S2519/A4235, Brian is in some ways luckier than most despite his health. He has me, our three other siblings, our mother, and a host of friends and family who love him, and who have the energy and knowledge to do what we can to fight for his release. But without legislation, there’s only a limited amount we can do.    Whenever another group of people in his prison leave en masse for quarantine, we talk and cry, worrying he could be next. We’ve had several conversations about end-of-life care. The reality of death is everywhere.   In recent weeks, we as a nation have surpassed yet another heartbreaking milestone: More than 1,000 people have now died of COVID-19 in prisons across the country. More must be done to save lives. Passing S2519/A4235 in New Jersey would do just that.    From the beginning of his sentence, my brother has worked to become a better person than he was when he was first locked up. Before that fateful accident, my brother had built successful companies and strengthened our community — he helped his employees get citizenship, helped families purchase their first home, gave people their first jobs.    When Brian puts his mind to something, he does it. Outside of prison, he’ll make an even greater impact than before. But to get that done, we have to get him home.   New Jerseyans, send a message to lawmakers to vote YES on S2519/A4235 and urge Governor Murphy to swiftly sign it into law.

As the COVID-19 pandemic stretches on, people across the country face the economic devastation left in its wake. Along with staggering unemployment numbers, millions of renters now