January/February 2014 - an ACLU of Rhode Island Newsletter

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January/February 2014 Newsletter

Volume: XX, Issue Number: 1

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ACLU Sues City of Cranston Over Redistricting Plan that Counts Incarcerated Population as Residents

Local residents and the ACLU of Rhode Island have sued the City of Cranston, charging that the 2012 redistricting plan for the City Council and School Committee violates the one person, one vote principle of the U.S. Constitution by counting incarcerated people in their prison location as if they were all residents of Cranston.

Because those incarcerated were counted as residents of Howard Avenue, three voters in the prison’s district have as much voting power as four voters in every other city district, according to Census Bureau data. Cranston residents Karen Davidson, Debbie Flitman, Eugene Perry, and Sylvia Weber joined the ACLU of Rhode Island as plaintiffs in the case. They are represented in federal court by Demos, the Prison Policy Initiative, the national ACLU, and ACLU of RI volunteer attorney Lynette Labinger.

Plaintiff Davidson said: “As a long-time resident and taxpayer of Cranston, I am deeply concerned that the City Council decided in 2012 to perpetuate this voting inequity, especially after the ACLU pointed out the constitutional problems with it. It is time for city officials to show some leadership and stop wasting taxpayers’ money defending themselves from legal challenges like this.”

The 2012 redistricting plan counted the ACI’s incarcerated population as residents of Ward 6 even though the overwhelming majority of these individuals are not true residents of the district, but instead remain residents of their pre-incarceration community for virtually all legal purposes, including voting. When the lines were being redrawn in 2012, the ACLU urged the Council, to no avail, to draw district lines in a way that would protect the principle of ‘one person-one vote.’

“The people incarcerated in Cranston cannot vote in local elections, visit with their elected officials, or use the public library,” said Adam Lioz, Demos counsel. “So, they should not be used to pad districts, skewing voting power in violation of the one person, one vote principle. The City Council should do the right thing and correct its redistricting process.”

According to Census Bureau data, without the incarcerated population, Ward 6 has only 10,209 true constituents. Yet those constituents now wield the same political power as the roughly 13,300 constituents in each of the other wards. This, the suit alleges, dilutes the voting strength and political influence of citizens residing outside of Ward 6, in clear violation of the Equal Protection requirements of Section 1 of the Fourteenth Amendment to the U.S. Constitution.

“When a citizen exercises their fundamental right to vote, they expect that their vote will be counted equally, not as if it were only three-fourths of another citizen's vote. Cranston elected officials should stop playing games and restore fairness to the democratic system,” said Sean Young, staff attorney with the ACLU's Voting Rights Project.

ACLU of Rhode Island executive director Steven Brown said, “More than 200 counties and municipalities facing prison gerrymandering have pro-actively addressed the problem. It is unfortunate that the Cranston City Council refused to do so, leaving us no choice but to file this lawsuit.”

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Court Holds Immigration and Corrections Officials May be Liable for Unlawful Detention of U.S. Citizen

A federal court in Rhode Island has ruled that the ACLU can proceed with a lawsuit on behalf of a North Providence resident who has twice been held in prison as a deportable “alien” even though she is a U.S. citizen. The court ruling holds that there are critical constitutional limits on the power of immigration and corrections officials to detain people while investigating their immigration status.

Ada Morales, who was born in Guatemala and became a naturalized United States citizen in 1995, was taken into custody on criminal charges in May 2009. While she was being held at the ACI, Immigration and Customs Enforcement (ICE) officials lodged an “immigration detainer” against her – apparently assuming, based on her race and her place of birth, that she was a deportable non-citizen. A state judge had ordered Ms. Morales released, but the R.I. Department of Corrections held her in custody for an additional 24 hours solely because of the ICE detainer, and even after she repeatedly told officials she was a U.S. citizen and offered to show them her naturalization certificate and passport. The detention, the ACLU lawsuit alleges, violated her constitutional rights to equal protection of the law and freedom from unreasonable searches and seizures.

In his ruling, U.S. District Judge John J. McConnell, Jr. agreed that the ACLU had raised viable claims, holding, among other things, that Ms. Morales “has set forth plausible allegations that she was unconstitutionally detained solely based on her national origin and Hispanic last name.”

The court concluded that ICE cannot detain someone simply because he or she was born abroad. The Fourth Amendment, the court further ruled, does not permit ICE or state officials to detain someone merely to investigate their immigration status; an arrest must be based on probable cause.

The court also held that the Department of Corrections cannot rely solely on immigration detainers, which are issued without any judicial review, to hold an individual in custody for deportation purposes once state or local custody ends; and that Ms. Morales has standing to seek an injunction forbidding the federal government from detaining her in the future.

ACLU of Rhode Island executive director Steven Brown remarked: “We hope that this ruling will encourage state officials to think twice before taking on the role of federal immigration enforcers. No innocent person should fear spending time in jail because of shortcuts taken by correctional and immigration officials in their unseemly zeal to deport people.”

ACLU of Rhode Island volunteer attorney Mark Freel from the law firm of Edwards Wildman Palmer LLP, National ACLU attorney Kate Desormeau, volunteer attorney for the National Immigration Project of the National Lawyers’ Guild Lena Graber, and National ACLU Immigrant Rights Project attorneys Omar Jadwat and Orion Danjuma are handling the suit.

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From the Desk of the Executive Director

To call our country’s immigration system broken is to state the obvious. But sometimes it takes a concrete case – like that of Ada Morales, as described above – to get a sense of just how broken – and unjust – it really is.

Ada Morales, a United States citizen, has twice been held overnight at the ACI at the behest of immigration officials – based solely, we allege, on the basis of her appearance, her national origin and her Hispanic last name.

The judge’s clear and strong ruling – that neither the federal government nor corrections officials can lock people up for investigation based solely on generalized suspicions that they may be in the country illegally – sends a powerful message. But the antecedent question is: Why is it necessary to send such a message in the first place? How could ICE act for years as if there were nothing wrong with this practice? It is because immigration law has degenerated into a law unto itself, and one that creates manifest injustices every single day.

This case is far from over, but we are hopeful that it will ultimately have a significant and positive national impact. And thanks to your support, we will continue to seek justice for wronged victims like Ms. Morales.

--Steven Brown

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Court Rules Board of Education Response to ACLU Petition Violated Open Government Law

The Rhode Island Board of Education was found in violation of open government laws for the second time in six months in February — this time for failing to properly respond to a petition by the ACLU of Rhode Island and numerous other organizations seeking a public hearing on the Board’s controversial “high stakes testing” graduation requirement.

Rhode Island Superior Court Judge Luis Matos ruled that the Board violated the Administrative Procedures Act (APA) by not responding in writing to a petition filed last June by seventeen organizations seeking a public hearing on repealing the NECAP graduation requirement. The Board was given 30 days by the Judge to formally respond to the petition in accordance with the APA.

At its meeting on September 9, 2013, Board chair Eva-Marie Mancuso announced that the petition had been denied, but no information other than the 6-5 vote against the petition was provided. In addition to the APA claim, the ACLU lawsuit, filed by volunteer attorney Marc Gursky, alleges that the Board’s discussion of the petition in a closed-door meeting was a violation of the Open Meetings Act.

The ACLU has asked the court to find that the meeting violated the OMA and to impose a $5,000 fine against the Board for willfully violating the law. In response, the Judge ordered the Board to provide him the executive session minutes from that September meeting. He indicated he will rule on the open meetings claim at a later date after reviewing the minutes.

The Board was rebuked by the court last August for seeking to violate the open meetings law on the very same issue of high stakes testing. Shortly after the ACLU filed this lawsuit, it was forced to sue the Board after Mancuso announced that an August Board retreat – which would include a briefing on high stakes testing - would be held behind closed doors. At an emergency hearing on that suit, a Superior Court judge ordered that the briefing be held in public.

“I am pleased that the Judge recognized the importance of agency compliance with the Administrative Procedures Act. We are hopeful for a similar ruling on our open meetings claim,” ACLU attorney Gursky said. “Whether the Board debated the petition for an hour or for two minutes, the public deserved to hear it.”

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New Data Confirm Racial Profiling Remains Prevalent

In January, the Rhode Island Department of Transportation and Northeastern University released the results of a multi-year study of traffic stop data that showed black and Hispanic drivers remain disproportionately stopped by police, and less likely to be cited when stopped.

Rhode Island first studied racial disparities in traffic stops in 2003, when a report by Northeastern University conclusively demonstrated that minority drivers were three times as likely as whites to be pulled over, more than twice as likely as whites to be searched by police, but white drivers were more likely to be found with contraband when searched. A second report in 2006 reiterated these findings.

This most recent report, released more than a decade after the state banned racial profiling, shows that little has changed. Black and Hispanic drivers remain disproportionately pulled over by the police in nearly every community across Rhode Island, but paradoxically less likely to receive a citation, raising serious questions of the appropriateness of the stops to begin with. Minority drivers also remain much more likely to be searched when stopped.

ACLU of Rhode Island Policy Associate Hillary Davis said: “Racial disparities in traffic stops unequivocally exist, and laudable efforts of the police and the community over the last ten years have failed to solve the problem. We cannot wait another ten years to find these numbers unchanged; it is time for meaningful action against these disparities, through passage of comprehensive racial profiling prevention legislation by the General Assembly.”

As of the time this newsletter went to press, the Rhode Island Police Chiefs Association was set to vote on a compromise form of the racial profiling legislation the General Assembly has been considering for the past several sessions.

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Legislative Preview 2014: A Look at Proactive Civil Liberties Legislation

Save for a few notable examples, 2013 was a difficult year for civil liberties at the State House. A number of significant bills affecting civil liberties – both good and bad – are returning for another round this year, and the extent of a new crop of bills has yet to be seen. The next newsletter will focus on some of the anti-civil liberties legislation under consideration by the General Assembly; in this issue, we discuss some of the proactive legislation the ACLU of RI is supporting to preserve and protect civil liberties this year.

Anti-Discrimination 

Gender and Health Insurance Rates

The General Assembly will consider legislation to end gender discrimination in health insurance rates. Nationwide, women have historically been charged more than men for the same health insurance, disproportionately impacting the ability of women to purchase vital coverage. The new federal health care law has made the practice illegal for some employers, but this bill would make critical changes to state law that would ensure the end of this discrimination.

Elections

Comprehensive Election Reform

The ACLU of RI has for several years been in support of comprehensive election reform, and the need for such reforms is heightened following problems flagged in the 2012 general election. This bill seeks to ensure every vote is counted in an open and transparent manner, increases the number of provisional ballots counted, subjects the Board of Elections to the Administrative Procedures Act, and requires post- election audits to evaluate the accuracy of voting machines.

Voter ID

The General Assembly will consider the fate of the state’s voter ID law this year. The law that passed in 2011 temporarily allowed for non-photo IDs to be used, but requires a more restrictive photo-ID only requirement for elections beginning in 2014. Following public outcry over disenfranchisement of voters lacking accepted identification, a compromise was floated last year that would “freeze” the law in its non- photo form, but at the last minute it was revealed that the legislation would make the voter ID law even more restrictive by allowing for fewer acceptable forms of ID at the polls. The General Assembly will decide this year whether to repeal the law in its entirety, pass a true “freeze,” or allow photo-only voter ID.

Privacy

Automated License Plate Readers

Some law enforcement departments across the country have begun utilizing automated license plate readers in traffic enforcement, consisting of vehicle-mounted cameras that scan the license plates of every car they pass and check them against registries of law enforcement’s choosing. In Rhode Island, this technology is largely unregulated. Legislation is under consideration to limit the use of ALPRs to specific law enforcement activities, and restrict what data may be retained and for how long.

Cell Phone Warrants
The cell phones we carry hold increasingly more information about our lives and present no danger to officers once confiscated, but are increasingly prone to search without a warrant by law enforcement. In 2012, the General Assembly
overwhelmingly approved legislation requiring a warrant before police could search the cell phones of arrestees, but the Governor unexpectedly vetoed the bill. The U.S. Supreme Court is currently considering the constitutionality of warrantless cell phone searches, but passage of a state law is critical to ensure the private information contained within our cell phones remains private except in limited circumstances.

Location Tracking

Cell phones have also become de facto location tracking devices, with telecommunications companies able to store the location of a cell phone for long periods of time and release that information to law enforcement at will. In 2013, the General Assembly passed a law inadvertently making it easier for telecommunications companies to share cell phone location information. The ACLU of RI will again be supporting legislation to ensure that location information can only be obtained with a warrant, except in emergencies involving death or serious physical injury.

Social Media Passwords

As use of social media has grown, so has the temptation for employers and others to use thisubiquitous technology to monitor the activities of individuals under their supervision. The ACLU of RI is lobbying for legislation that would bar employers and school officials from requesting or requiring employees or students to disclose their nonpublic social media information, including user names and passwords, or to access their private social media in their presence. This legislation overwhelmingly passed the House last year and was approved by a Senate committee, but failed to receive a Senate floor vote before the legislative session ended.

Drones

As law enforcement agencies nationwide have begun obtaining and using “unmanned aerial vehicles,” or drones, states have had to work quickly to update their laws with critical protections and restrictions on drone use. Currently, Rhode Island law is silent on the subject, even as increasing incentives exist for law enforcement to purchase them. The General Assembly will consider implementing some critical protections, requiring, among other things, an open and transparent process for a law enforcement agency to obtain a drone and a warrant, except in narrow circumstances, before they can be used for surveillance.

Students' Rights

High-Stakes Testing

Legislation to bar the use of high-stakes testing in graduation will be considered for the third year. Under current state regulations, in order to graduate in 2014, students will generally be required to pass a high stakes standardized test. If a student “fails,” they could be denied a diploma regardless of their performance in any other aspect of schoolwork. This legislation prevents the use of standardized testing as a zero-sum requirement for graduation, and mandates the provision of supportive services for at-risk students.

School Discipline

Following the release last year of an ACLU report documenting significant racial disparities in school suspension rates, the General Assembly will again consider legislation to reduce the rampant use of out-of-school suspensions. Black and Hispanic students statewide are disproportionately likely to receive such punishment for minor infractions – particularly subjective offenses such as “disorderly conduct” and “insubordination.” This legislation would require suspensions to be served in school, unless the student presents a danger or serious disruption to the classroom. The bill would also require school districts to evaluate their suspension data and present a plan to eliminate any racially disparate suspension rates.

Internet Filtering of School Computers

The unrestrained use of Internet filtering software by schools leaves teachers unable to use their prepared lesson plans and students sometimes unable to complete their assignments. With little information as to what web sites are filtered, and no procedures in place for teachers to unblock the information needed to educate their students, use of the Internet often remains a frustration in the classroom instead of a useful educational tool. An ACLU bill will require school districts to craft policies and procedures governing the use of filtering software and the timely unblocking of websites when requested by faculty.

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ACLU Objects to Erosion of Patient Privacy and Denial of Pain Medication

The ACLU, along with the Rhode Island Disability Law Center, have raised concerns over proposed Department of Health regulations that would erode the trust between doctors and patients, and deny patients access to medication if they refuse to allow their doctors to act as de facto law enforcement operatives. The regulations have been proposed at a time when overdose deaths have become rampant in Rhode Island.

Under the proposed regulations, still in draft form when this newsletter went to print, chronic pain patients seeking opioid medications would be required to sign a written agreement stating they would submit to urine samples any time the prescribing practitioner requests, and that the physician could contact the police or other "proper" authorities if they suspected any illegal activity by the patient, whether or not such activity is connected with illicit drug seeking. The ACLU testimony argues that such agreements undermine the doctor-patient relationship, contradict existing medical privacy laws, and will result in the needless suffering of patients whose doctors are unwilling to prescribe necessary pain medication, or drive some patients underground to obtain illegal opioid drugs.

Even if the waiver is not in conflict with patient confidentiality laws, the testimony further claims that threatening chronic pain patients denial of their pain medication if they unwittingly violate even the smallest provision of the agreement was a cruel burden to place on patients seeking assistance from medical professionals. The letter also stated: “One can easily foresee some patients foregoing pain relief (or foregoing it through legal channels) and others refusing to be open with their practitioners about addiction or other problems they have, if they know their physician is demanding the ability to notify the police any time misuse of the medications was suspected.”

The ACLU and the Disability Law Center are awaiting a formal response to the testimony.

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ACLU Seeks Records in Ticketing Controversy

The Affiliate in January filed an open records request with the Cranston Police Department in an effort to determine whether the decision by a police captain to engage in blitz ticketing of overnight parkers immediately after the Cranston City Council voted down a proposed union contract was done through official channels.

The ACLU received tips that Capt. Stephen Antonucci used his private cell phone, not a department radio, to order the ticketing in the districts of councilors who voted against the contract. Antonucci has claimed the timing of the ticketing was a coincidence. The ACLU noted that the incident raises significant First Amendment issues and questions about potential abuse of police authority.

The ACLU requested copies of radio conversations or calls Antonucci made between November 13 and November 16, 2013 relating to the issuance of parking tickets; departmental polices governing officers’ use of personal phones for law enforcement related activities; and any documents issued by Antonucci relating to the enforcement of the city’s overnight parking ordinance.

The records will help clarify exactly how the ticketing happened and whether it was done in accordance with departmental policies.

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ACLU Advises Voters of Rights Under New Voter ID Law

When Woonsocket hosted the state’s first election under a new restrictive photo voter ID law in January, the Affiliate disseminated materials to voters advising them of their rights at the polls.

Woonsocket’s special primary election was the first election in which Rhode Island voters were required to show photo identification at the polls. For the past two years, voters were able to use non-photo IDs, such as birth certificates, social security cards, and utility bills, to verify their identity.

The ACLU distributed educational postcards to agencies across Woonsocket outlining the new identification requirements and what voters should do if they encounter a problem at the polls. The ACLU is especially concerned as to how this new photo ID requirement could risk disenfranchising the poor, the elderly, racial minorities and other vulnerable groups.

The ACLU will be working with like-minded organizations to lobby for the repeal of the voter ID law this year.

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ACLU Urges AG Not to Investigate Protected Speech

The ACLU of RI urged Attorney General Peter Kilmartin in February to close any criminal investigation into a Facebook page satirizing Rep. Scott Guthrie—a page the ACLU said was a clear exercise of free speech.

According to reports, the Assistant Attorney General who investigated Rep. Guthrie’s complaint in January concluded – correctly, in the ACLU’s view – that the Facebook page did not constitute criminal “harassment” under the law, and “determined that there is insufficient evidence to go forward with charges at this time.” Despite this conclusion, the Attorney General’s office has been quoted as calling this determination only an “initial assessment,” and indicated the matter was still being reviewed for possible criminal prosecution.

ACLU of RI executive director Steven Brown said in a letter to AG Kilmartin that the continued criminal investigation into this political satire “can only cast a pall over the exercise of First Amendment rights and the lawful ability of members of the public to criticize or caricature public officials.” The letter continued: “While it may be discourteous and even offensive, the Facebook page is not by any stretch of the imagination a criminal enterprise. Satirizing public officials, however coarsely, constitutes a well-worn application of free speech rights.”

The ACLU noted that public officials are satirized online and on televisions and newsstands every day, and that the courts have set a very high standard for public officials to pursue even civil action against political criticism.

Given the First Amendment implications of a criminal investigation into any protected political speech, the ACLU said any need for additional review of this case should be categorically rejected, and called on the AG to immediately close the case.

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ACLU Questions Exclusionary Effects of Proposed Flu Vaccine Mandate

The Affiliate has urged the Rhode Island Department of Health to reexamine a proposed regulation that would force children out of day care and childcare providers out of work if they are not vaccinated for the flu, even if they are unvaccinated for medical reasons.

The draft regulation requires all children ages 6 to 59 months to be vaccinated for the flu or else be excluded from preschool or day care any time there is a so-called flu “outbreak.” Such regulation, ACLU Policy Associate Hillary Davis said in testimony to the Department, represents a “serious intrusion on the ability of individuals and families to make their own medical decisions.” It also stymies children’s education and imposes a significant burden on parents without benefiting public health in the long run.

The efficacy of flu vaccines can vary significantly from season to season and provide no permanent protection. While acknowledging that encouraging vaccination against the flu is an important endeavor, Davis said “state intervention in the medical decisions of families must be limited and rare.”

The ACLU emphasized that its concerns involved the exclusionary consequences of the department’s proposal, not the agency's goal of encouraging these vaccinations.

The Department of Health has yet to act on the proposal.

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ACLU Questions High-Stakes Test Waiver Policies

The RI ACLU continued to call on the R.I. Board of Education to repeal its mandate requiring students to pass the NECAP test in order to get a high school diploma. The call came after the ACLU reviewed waiver policies from every school district in the state and found in many instances what it called “a completely arbitrary hodgepodge of inconsistent, incomplete, and poorly advertised policies that can only leave students and parents understandably anxious and perplexed.”

After reviewing the policies and documents related to their implementation, the ACLU learned that a number of school districts had not yet finalized a policy, some had not even started one, and those that did have policies that failed to address key issues. While districts have made some progress since then, the ACLU found that some still fail to provide adequate notice to students and parents about the process and what will need to be demonstrated to qualify for a waiver.

The ACLU also cited RIDE’s ever-changing policies, such as the disclosure in January that students accepted into non-open-enrollment colleges or certain community service programs like AmeriCorps do not need to pass the NECAP. This revision, the ACLU said, undermines any semblance of rationale for use of the NECAP as a high stakes test and essentially acknowledges that the test is not a useful indicator of a student’s college readiness.

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Tune in to ACLU's Monthly Cable Access Show, "Rights of a Free People"

Every month the RI ACLU’s long-running cable access show “Rights of a Free People” features a discussion on key civil liberties issues. During the month of March, we will be airing a show on issues related to a prescription monitoring database, mental health background checks, a proposed flu vaccine mandate, and healthcare providers reporting possible criminal activity.

Playing in March: Medical Privacy Showtimes:

Ch. 13: Tuesdays 10:00pm & Fridays 3:30pm (Ch. 32 on Verizon FiOS)
Ch. 18: (In Providence & N. Providence) Wednesdays 9:00pm (Ch. 38 on Verizon FiOS)

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Welcome to Johanna Kaiser

The ACLU of Rhode Island is pleased to welcome Johanna Kaiser as the Affiliate’s new Development and Communications Associate. Johanna, a Boston University graduate with a B.S. in Journalism, comes to us from the Boston Globe, where she was a town reporter. She was also a State House correspondent for the Associated Press. She has started her tenure by putting the Affiliate into the Twitterverse and publishing the first newsletter of 2014. She has many more exciting plans for the Affiliate.

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