News & Commentary

In striking down three of the four challenged provisions in Arizona’s anti-immigrant law, today’s Supreme Court decision sends an important message that states wanting to act as immigration enforcement officers face severe constitutional obstacles in doing so. For those of us concerned about racial profiling in the state, the decision provides further reason to enact strong legislation to keep local police out of the immigration business.

Seven organizations today sent a letter to Providence Commissioner of Public Safety Steven Pare, criticizing the city police department’s plans to engage in an aggressive “stop and frisk” program in response to a recent spate of gun violence in the city. Deploring the racial profiling inherent in such police practices, the groups’ letter stated: “Stepping up the humiliating and dehumanizing questioning and frisking of our minority youth without cause is a simplistic approach to a complex problem and one that we believe will do more harm than good.”

The Rhode Island ACLU, in conjunction with its counterpart in Maine, today appealed the FBI’s refusal to release virtually any information that might indicate to what extent a federal program that allows for ethnic and racial mapping of local communities may be resulting in racial profiling in the two states. In response to a Freedom of Information Act request filed almost two years ago to learn about the controversial program, the two ACLU Affiliates received mostly blank pages from the FBI, including a censored census map of New England, leading to today’s appeal. According to a 2008 FBI operations guide, FBI agents have the authority to collect information about and map so-called “ethnic-oriented” businesses, behaviors, lifestyle characteristics and cultural traditions in communities with concentrated ethnic populations in order to assist the FBI’s “domain awareness” and “intelligence analysis” activities. The FOIA request was designed to find out how this mapping was taking place in Rhode Island. However, the very little information disclosed raises more questions than answers. For instance, one partially released document shows the FBI is using 2000 census data to track “foreign born” and “mixed ancestry” populations of some type in Rhode Island. It raises concerns that the FBI is profiling immigrant communities, but the FBI failed to provide any more information or indicate which populations it is tracking or why. Without this information, it is impossible to know whether the FBI is using its authority appropriately and constitutionally. This concern is not merely speculative. FBI documents obtained from other ACLU affiliates strongly suggest that the FBI is, in fact, profiling communities for suspicionless investigations on the basis of crude stereotypes. For example, a 2009 memorandum shows that the Detroit FBI sought to collect information about Middle-Eastern and Muslim communities in Michigan without any evidence of wrongdoing. And after noting that San Francisco “is home to … one of the largest ethnic Chinese populations outside mainland China,” two FBI memoranda from that city justified the opening of an investigation involving racial and national origin mapping because “[w]ithin this community there has been organized crime for generations.”                RI ACLU executive director Steven Brown said today: “It is essential to learn how, and to what extent, the FBI has been using this troubling authority here in Rhode Island. The FBI should be tracking true threats, not targeting entire communities based on race or ethnicity. If the businesses or lifestyles of Muslim or other local communities in the state are being racially profiled, at a minimum they have a right to know about it. Unfortunately, we know as little now as we did two years ago when we filed this request. This denial of the public’s right to know is completely unacceptable.” ACLU of Maine Executive Director Shenna Bellows added, “As our nation's leading law enforcement agency, the FBI should not be wasting resources by inappropriately mapping our communities on the basis of race, ethnicity, national origin, or religion. Law enforcement programs based on evidence and facts are more effective than a system based on racial stereotypes or mass suspicion.”

The ACLU today filed a lawsuit in federal district court on behalf of a Cranston resident, seeking the return of a variety of lawfully possessed weapons that were seized from him almost nine months ago by police. The lawsuit, filed by RI ACLU volunteer attorney Thomas W. Lyons on behalf of Robert Machado, argues that the Cranston Police Department has violated his right to due process and his right to keep and bear arms by retaining his property without just cause. In September of last year, police and fire paramedics came to Machado’s house after receiving a call from a friend of his that he might be suicidal. Machado told the police that his friend had misconstrued a conversation they had had, but he agreed to be transported to Our Lady of Fatima Hospital for a mental health evaluation. The examination found no problems and he was promptly released from the hospital. Unbeknownst to Machado, however, police in the meantime seized for “safe keeping” from his home various weapons he lawfully possessed, including firearms and a collection of ceremonial samurai swords. Eager to have his possessions returned, Machado followed up by obtaining a letter from his psychotherapist that he had never “demonstrated suicidal tendencies or thoughts,” and “there should be no concern” returning his weapons. The police still refused to release them and advised Machado that he would need to obtain a court order to get them back. After further unsuccessful efforts to get his items returned, Machado contacted the ACLU. The lawsuit claims that the police department’s “customs, policies and practices” of requiring “weapons owners who are not charged with a crime to engage in formal litigation in order to recover their seized property” violates Machado’s due process rights as well as his Second Amendment rights. The suit seeks a court order declaring the police department’s practice unconstitutional and ordering the return of his weapons. ACLU attorney Lyons said today, “We hope this suit will ensure that Mr. Machado and his fellow citizens will no longer be exposed to violations of their constitutional rights.” Because other police departments may have similar unconstitutional policies, the ACLU expressed hope that the lawsuit would force other departments to reexamine them.

The Rhode Island ACLU has sent a letter to Barrington school officials challenging the legality of the town’s proposal to implement a two-tiered plan for out-of-town students to pay tuition fees in order to attend Barrington public schools.  As the proposal stands, the school district has indicated it would charge special education students more than four times the tuition rate that would be charged other students.  In its letter, the Affiliate asserted that charging special education students a higher tuition rate would be in clear violation of federal laws prohibiting public schools from discriminating against students with disabilities.  The letter follows up a previous one sent by the ACLU two weeks ago that questioned the legality of any attempt to exclude altogether any special education students from participating in the non-resident program. In calling the two-tiered tuition plan illegal, the ACLU cited an opinion issued in 1999 by the U.S. Department of Education's Office of Civil Rights which stated: "The Department cannot envision a situation where charging a higher non-resident tuition to a student with disabilities than to a student without disabilities, would not violateviolate [regulations implementing the federal Rehabilitation Act of 1973]. Public school programs, including public school choice programs that utilize non-resident tuition formulae, must ensure that students with disabilities are not subjected to discrimination on the basis of their disability.” Under the circumstances, the ACLU letter states, there "is no lawful basis for proceeding with an out-of-town tuition program that would treat students with disabilities differently from other applying students. We therefore strongly urge the school district to abandon any efforts to charge disparate tuition rates based on special education status."

Ten organizations have submitted written testimony objecting to proposed Department of Health (DOH) regulations that would reinstate a “zero tolerance” scheme in schools for students possessing any over the counter medications in school without advance written parental authorization.

The RI ACLU said today it was “extremely disheartened” by today’s 3-2 decision, issued by the U.S. Court of Appeals for the First Circuit, overturning Governor Lincoln Chafee’s efforts to prevent the institution of federal death penalty charges against Jason Wayne Pleau. The ACLU had filed a “friend of the court” brief in support of the Governor’s position.

In a decision issued late this afternoon, U.S. District Judge Mary Lisi has rejected claims that the City of Pawtucket has engaged in an unconstitutional practice of giving preferential treatment to parochial schools over public schools in granting permits for the use of city athletics fields. In 2009, the ACLU filed suit on behalf of seven Pawtucket parents and their children, who had complained to the City for years that one public field had been reserved almost exclusively for use by Saint Raphael Academy, a Catholic school, and that public junior high school teams were denied the use of other fields which had often been reserved for the use of private sectarian schools.

On the morning of a General Assembly hearing on three separate bills aimed at addressing the inequalities faced by Rhode Island’s same-sex couples, the RI ACLU released statistics today indicating that the state’s “compromise” civil union statute remains “a complete failure.” During the first three months of 2012, the ACLU reported today, only six couples took advantage of the state’s civil union law, which was enacted last year over the strong protests of the state’s gay and lesbian community.