State Immigration Statute (Friendly House)
On May 17, 2010, the ACLU of Arizona joined with other legal groups including the IRP and MALDEF, to file a constitutional challenge to SB 1070. The recently passed comprehensive state law that includes provisions that Republican legislators, lead by Russell Pearce, have been seeking for years, many of which were vetoed by than Governor Napolitano. These provisions illegally set up a state scheme to regulate immigration enforcement, an area reserved for the federal government. In addition to the strong preemption concerns, the lawsuit involves First, Fourth and Fourteenth Amendment causes of action, and highlights the fact that if implemented, racial profiling will inevitably result on a large scale. The plaintiffs will seek a preliminary injunction to prevent all or portions of the law from being implemented on the July 29 effective date.

Unreasonable Seizure (Arizona v. Johnson)
In November 2009, the ACLU of Arizona filed an amicus brief in a criminal appeal on behalf of Mr. Johnson, who was a passenger in a car stopped on the highway. Mr. Johnson was questioned about matters unrelated to the stop and without any individual suspicion of criminal activity. The U.S. Supreme Court has found that the 4th Amendment does not prohibit such questioning and the information derived is not “unreasonably seized;” this practice of stopping cars for the purpose of questioning passengers is the M.O. of Sheriff Arpaio during his immigration sweeps. Our brief sought review by the Arizona Supreme Court on the grounds that the privacy provisions in the Arizona Constitution provide greater protections than the 4th Amendment. In a close 3-2 vote on February 4th the Supreme Court declined the case (Justices Berch and Bales favored review).

First Amendment: Publications (Prison Legal News) UPDATE
In September 2009, the ACLU of Arizona filed a federal lawsuit challenging the denial by private prison company “CCA” of receipt of books and publications from Prison Legal News; CCA runs the large “Saguaro” facility in Eloy with contract prisoners from Hawaii and Washington. Prison Legal News is a non-profit organization dedicated to protecting human rights in prisons and jails, and has over 7,000 subscribers, mostly prisoners. Sandy Rosen of Rosen, Galvan & Bien is the lead attorney. After a day long session with the Magistrate, attorneys for the parties including Dan Pochoda, and Paul Wright from PLN, a settlement was reached. CCA agreed to remove PLN from the “not approved” list for books and publications and that PLN would be notified if any specific material was censored with the reasons and chance to respond. The wording of the agreement and notice to all prisoners is being finalized.

Unreasonable Seizure and Equal Protection (Mora) UPDATE
In August 2009, the ACLU of Arizona filed the first case that challenged the practices of Sheriff Arpaio in conducting workplace raids. These raids have not resulted in any convictions of employers, and are directed at the workers solely because of their status and employment, and not based on allegations of crimes against others. Nineteen-year-old Julio and his 66-year-old father Julian were not violating any laws when forcibly stopped while driving in a public roadway on the way to Julian’s workplace (H.M.I). Julio is a citizen and Julian a thirty-year legal resident of Arizona. Their stop led to a harrowing three hour armed detention, without the ability to contact anyone and humiliating denials of adequate bathroom access while handcuffed. After enduring these harms & illegalities, a brief questioning demonstrated that there was no reason to have detained them. Discovery and depositions have begun.

Religious Discrimination UPDATE
In August 2009, the ACLU of Arizona filed a federal lawsuit on behalf of a Muslim woman awaiting trial while confined in Maricopa County.  Cooperating counsel are Ron Messerly and Ben Mitsuda of Snell & Wilmer. The complaint sets out the actions by Arpaio and Maricopa County that unreasonably interfere with the woman’s religious beliefs and that can be accommodated in the jail setting. The denials include not providing the religious Halal diet, not permitting the Hijab head scarf, and inadequate access to religious books.  After we filed for a restraining order, defendants agreed to accommodate the woman’s need to fast in the daylight hours during Ramadan that began August 22nd and certain other days. After transfer to an ADOC facility thereby mooting the request for injunctive relief, the damages aspect of the case was settled by negotiation.

Religious Discrimination (Fazlovic)
In May 2009, the ACLU of Arizona filed a federal lawsuit because of the failure of the Maricopa County Sheriff’s Office to accommodate the religious beliefs of Sinan Fazlovic, an employee. Dan Bonnett of Martin & Bonnett is the cooperating attorney. Prior to litigation, the ACLU had submitted to the EEOC on Sinan’s behalf and, after receiving a response from the MCSO, the EEOC found that the religious discrimination complaint was meritorious and issued a “right to sue” letter. Sinan’s Muslim beliefs require him to wear a beard. Despite being known and agreed to by the MCSO, after starting work they failed to accommodate Sinan’s need and in fact reduced his pay and retaliated against him. 

Religious Discrimination
In June 2009, the ACLU of Arizona filed a federal lawsuit on behalf of a 19-year-old Muslim woman against the Maricopa County Sheriff’s Office.  She was booked into the Fourth Avenue Jail on charges that were later dropped and kept at the jail overnight, and throughout was required to remove her Hijab (head scarf) with no alternate covering provided. Her religious beliefs require a head covering while in public and in the presence of men; she had been wearing it since she was three. The Hijab does not impact identification and was worn for her driver’s license and is allowed by many correctional systems.

Racial Profiling and Unreasonable Seizures (Ortega Melendres v. Arpaio) UPDATE
On July 16, 2008, the ACLU of Arizona and the Immigrants’ Rights Project, with MALDEF and the firm of Steptoe & Johnson, filed an amended complaint with five individuals and Somos America as named plaintiffs seeking to end the widespread pattern and practice by Sheriff Arpaio and the MCSO, and Maricopa County, of racially profiling Latino persons because of the color of their skin in an attempt to find persons who are not lawful residents. Class certification is being sought on behalf of all Latino persons in Maricopa County who are stopped, questioned or arrested by Sheriff's officers while driving or sitting in a vehicle. Such persons are targeted regardless of their immigration status and without the requisite individualized suspicion or probable cause that they were involved in criminal activity. At a hearing on February 4th, defendants admitted that they had failed to preserve documents and emails related to neighborhood sweeps, raising serious concerns about deliberate wrongdoing by Sheriff Arpaio. Plaintiffs filed a motion urging the court to address this failure by issuing sanctions.  After a hearing, Judge Snow found that defendants had acted improperly and would be subject to sanctions including a jury instruction allowing an “adverse inference” from the loss of evidence and re-opening of some depositions at defendants’ expense. After finding that additional documents in the form of requested emails have now been located, the Court ordered that plaintiffs be provided all of these by June 11, with a status hearing scheduled on July 16 to determine if re-opening of discovery, at defendants’ expense, will be required.

Fourth Amendment and Car Searches (Gant)
In July 2008, the ACLU of Arizona and the National Office joined on an amicus brief to the United States Supreme Court in arguing that in a previous case the Court had effectively eliminated the warrant requirement for searches of a car. In U.S. v. Belton, the Court allowed a search of the inside of a vehicle without a warrant despite the fact that the driver had been removed and was in the custody of the police and there was no indication of any danger to the police nor other emergency circumstance. In an important result, the Supreme Court in April 2009 decided to limit the searches of vehicles incident to an arrest. This is an important departure from a long line of cases that have expanded this ability by law enforcement.  

Right to Vote and Felon Re-enfranchisement (Coronado)
The ACLU of Arizona and the ACLU Voting Rights Project filed a lawsuit in February 2008 seeking to restore the voting rights of former felons in Arizona.  At issue is the state’s rights restoration process for former felons. Under current state law, everyone who commits a felony is stripped of their civil rights, including the right to vote, serve on a jury and run for some public offices. They can’t restore those civil rights – even after being released from prison – unless they’ve paid all of their financial obligations to the state and their victims, including docket and filing fees, court costs, restitution, and costs of incarceration, as well as interest on these debts. The ACLU argues in its complaint that denying the right to vote based on one’s failure or inability to pay is the modern equivalent of a poll tax and violates the equal protection clause of the 14th Amendment. The lawsuit asks that the right to vote not be limited by a person's financial ability, but does not seek to eliminate a defendant’s obligation to pay.  In March, the District Court dismissed the complaint and we have now submitted a brief to the Ninth Circuit Court of  Appeals arguing that this was erroneous. Argument before before a panel that will include Justice Sandra Day O’Connor and held at the ASU law school will take place on October 19th.

Death Penalty, Criminal Procedure & Due Process (Milke)
In December 2007, the ACLU of Arizona filed an amicus (friend-of-the court) brief on behalf of Deborah Milke, who has been on death row for 18 years. The ACLU amicus brief focuses on questionable police practices, specifically the unreliability of confessions in the absence of a video record. In September 2009, a unanimous panel of the 9th Circuit found that there was no evidence in the record that Deborah had voluntarily given up her right to remain silent before the confession and remanded the case. The work of lead attorney Lori Voepel as well as amici, has resulted in a serious possibility for reversal of the conviction. An evidentiary hearing will be held in January 2010. Read the ACLU of Arizona's brief.

Preemption, Due Process & Employer Sanctions (Valle Del Sol)
After a Phoenix federal court issued a decision that would allow Arizona officials to begin enforcement of the "Legal Arizona Workers Act" on March 1, the American Civil Liberties Union, the ACLU of Arizona, the National Immigration Law Center (NILC), and the Mexican American Legal Defense and Educational Fund (MALDEF) moved forward with an appeal to suspend the Act. The Arizona law requires employers to check the eligibility of all potential workers against E-Verify, which is presently a voluntary, experimental and temporary federal database program with a high error rate. The ACLU is asserting that the new law conflicts with this and is preempted by federal law and violates the constitutional right to due process by failing to provide any meaningful opportunity to challenge its enforcement. The case was argued before the 9th Circuit Court of Appeals on June 12, 2008, and in September, the Circuit Court upheld the trial court. Plaintiffs have filed a petition to the U.S. Supreme Court for review. 

Fourth Amendment & School Search (Redding v. Safford)
On July 10, 2008, an en banc panel of the Ninth Circuit Court of Appeals agreed with the position of the ACLU of Arizona and the Drug Policy Project and by an 8-3 vote ruled that the intrusive strip search of a thirteen-year-old student violated her Fourth Amendment rights; by 6-5 the panel found that the school administrator should have known that this act was unconstitutional and is liable for money damages. Savana Redding was strip searched by school officials as they looked for two Ibuprofen pills they suspected her of possessing. Their suspicion was based solely on the uncorroborated claim of another student who had been found with pills. There was no emergency or  immediate need for such an intrusive search especially without informing the parents; nothing was found. As stated by Savana, "I was embarrassed and scared.” This search was originally upheld in a 2-1 decision by a 9th Circuit panel. Defendants appealed to the United States Supreme Court and on April 21, the matter was argued before this Court by an attorney with the ACLU Drug Reform Project. The ACLU of Arizona was involved in the writing of the Supreme Court brief and made the oral argument. In a far reaching decision that will impact students throughout the country, in June 2009, the Supreme Court agreed with the arguments presented by the ACLU and declared that the actions by the school violated the Fourth Amendment. The case was remanded for consideration of payment of damages.

Due Process, Right to Counsel & Proposition 100 (Lopez-Valenzuela)
On April 4, 2008, the ACLU of Arizona filed a federal court challenge to Proposition 100 and related state laws. These laws mark an unprecedented departure from bail provisions throughout the country by making state criminal defendants categorically ineligible for bail based solely on their alleged immigration status. The law deprives thousands of persons of their freedom without an individualized determination as to whether pretrial detention is necessary to guard against flight risk or danger to the community. The lawsuit does not seek the release of any plaintiff, but calls for the same treatment as all other criminal defendants, including the opportunity to appear before a state judge for a fair hearing with legal representation. A hearing on defendants’ motions to dismiss and plaintiffs’ request for class certification was held on July 23, before federal Judge Susan Bolton, and resulted in a victory for the plaintiffs. The case is now in the discovery phase.

Racial Profiling & Criminal Appeal (Sushone Calmese)
The ACLU of Arizona filed an amicus brief to the Arizona Supreme Court that focused on the racial aspects of a traffic stop and later canine search of an African-American woman. This was done despite the absence of any indication that she had been involved in criminal activity. The brief utilized the data collected by DPS pursuant to the settlement of our racial profiling lawsuit. The conclusions of statistically significant differential treatment on the basis of race were reported in our study Driving While Black or Brown, and echoed in the analyses done for DPS, and were submitted to sensitize the Supreme Court to these continuing behaviors by law enforcement. In October 2008, the appeal was denied. Based on other grounds, the conviction was upheld.

Voting Rights (Friendly House)
On August 29, 2007, Federal District Judge Silver granted the defendant's request for summary judgment on several of our claims in the voting rights case brought by the ACLU of Arizona and MALDEF seeking to overturn Prop 200's voting barriers. We went to trial on two of the most significant aspects of the case: the claim that these requirements impose an undue burden on the right of citizens to register and vote, and the claim that these requirements violate section two of the National Voting Rights Act, prohibiting any voting practice or procedure that has a discriminatory result. The trial resulted in a decision upholding the Prop 200 provision; we will be appealing the result to the 9th Circuit Court of Appeals.

Establishment of Religion and School Vouchers (Virgel Cain, et al.)
The ACLU of Arizona joined a coalition of parents and educators, including the Arizona Education Association and the Arizona School Board Association, in filing the lawsuit challenging the constitutionality of the voucher programs, arguing they funnel much-need tax dollars away from public schools and to sectarian institutions. On June 13, 2007, a Maricopa County Superior Court judge ruled in favor of the defendants. The ACLU and the education groups filed an appeal with the Arizona Court of Appeals and on May 15, 2008, in a landmark decision, the trial court was reversed. The Court of Appeals found that the voucher scheme violated the prohibition in the Arizona Constitution against appropriating public funds for private or sectarian schools. The Arizona Supreme Court agreed to hear the appeal and the argument took place on December 9, 2008. In April 2009, the Supreme Court unanimously ruled in favor of plaintiffs. In its important ruling, the Court found that the Arizona Constitution barred any “aid” to private sectarian schools that might otherwise go to public schools and is effectively governmental action.

Right to Privacy and Reproductive Freedom (Doe v. Arpaio)
The ACLU of Arizona and the ACLU Reproductive Rights Project challenged the policy of Sheriff Arpaio that denied women detainees the ability to obtain timely and safe abortions. At issue was an unwritten rule - set by the Sheriff - requiring pregnant inmates to first receive a court order before they can exercise their constitutional right to an abortion. In August 2005, the state trial court ruled in our favor, citing the U.S. Supreme Court decision in Planned Parenthood v. Casey, which prohibits the government from placing an "undue burden" on a woman's right to an abortion. Sheriff Arpaio appealed this decision and on January 23, 2007, a state appeals court upheld the decision of the trial judge.  The Arizona State Supreme Court declined to review. The Sheriff then sought review by the United States Supreme Court. We submitted a brief asking the court to deny this petition and in May 2008, the Supreme Court declined to hear this matter. A motion for contempt of the trial court judgment was filed in September after the Sheriff's representatives failed to comply and unnecessarily delayed a needed abortion of a detainee and instituted for the first time the requirement that women detainees must pay all transportation costs up front or they will not be taken to their doctor. Argument on the contempt motion before state court Judge Oberbillig will occur on October 20th. 

Equal Protection and Racial Profiling (Arnold v. DPS) 
The ACLU of Arizona joined with cooperating attorney Lee Phillips in pursuing a class action lawsuit challenging racial profiling by the Department of Public Safety (DPS). A federal magistrate approved a settlement of this lawsuit on July 28, 2007. This settlement required the collection of data for every vehicle stop made by DPS. A study based on this data, conducted by NAU faculty members, proved that a disproportionate number of motorists stopped and searched for "traffic infractions" on I-40 were racial minorities. In May 2008, the ACLU of Arizona published the results of the NAU study in a report entitled Driving While Black or Brown. This comprehensive report, with recommendations, analyzes the first year of data collected and concludes that there were significant racial disparities when the length of stops and the search rate after a stop were compared. The ACLU is now monitoring the implementation of the settlement by working with the Governor’s Traffic Stop Advisory Board and by continuing to review data collected from traffic stops. A February 2010 analysis of third-year data by DPS consultants demonstrates that racial disparities still exist. In particular, the search and arrest rates of persons of color after a stop remain disproportionately high and are not attributable to criminal activity or contraband.

Due Process and Jail Conditions (Graves v. Arpaio)
In 1977, Community Legal Services filed a lawsuit to improve conditions of confinement and medical treatment for the class of all pre-trial detainees in the Maricopa County jail system. A settlement was reached requiring significant changes in the operation of the jails in order to provide humane and constitutional treatment. In 2001, the Maricopa County Sheriff’s Office sought to eliminate the previous judgment and end federal court oversight. In October 2005, the ACLU intervened in the case to ensure continued oversight. Trial was held by Judge Neil Wake in August 2008 in federal court in Phoenix. Osborn Maledon and the ACLU National Prison Project (NPP) prepared expert witness testimony. The ACLU of Arizona analyzed hundreds of pages of documents in preparation for the hearing and participated in numerous depositions. After three weeks of hearings, with four expert witnesses and twenty-five detainee class members testifying for plaintiffs, Judge Wake ruled that there were continuing and serious constitutional problems in the conditions faced by all pre-trial detainees, including in the areas of medical and mental health care, food service, recreation and overcrowding. He stated that the plaintiffs’ had prevailed and are entitled to attorneys fees, and that the Court would continue to monitor for two years to assure implementation of the judgment. It is a far-reaching and important victory for the many thousands of
pre-trial detainees presently and in the future confined in any Maricopa County Jail. Defendants have filed a partial appeal to the Ninth Circuit. The ACLU of Arizona is working with the NPP and Osborn Maledon to monitor implementation of the court order. In September, the parties agreed to a settlement on the attorney fees for the past six years and payment was made to Plaintiffs’ counsel. We will continue to get fees for the ongoing monitoring.

Establishment of Religion through Corporate Tax Credit (Christie A. Green, et al.)
On September 18, 2006, the ACLU of Arizona filed a lawsuit on behalf of four parents whose children are enrolled in public schools challenging a state-run corporate tax credit program that gives businesses tax breaks for donating money to private, sectarian schools. At issue is the Corporate Tuition Tax Credit Act, which was enacted by the Arizona Legislature to allow businesses to "offset their taxes" by making cash donations to private "school tuition organizations." During fiscal year 2006-2007, the Department of Revenue allocated $10 million in corporate tax credits primarily to support religiously-affiliated schools. Our concern is that this program diverts limited resources away from the public school system, exposes students to discrimination on the basis of religion and constitutes state sponsorship of religion. The denial of our claims by the trial court was argued before the state appellate court on September 17 by cooperating attorney Marvin Cohen, but the trial court decision was upheld. On May 13, the ACLU of Arizona worked with the cooperating attorney and filed a petition to the Arizona Supreme Court for review of this decision in light of the Court’s decision in Cain (previous page), and the Ninth Circuit result in Winn (see below).

Establishment of Religion through Individual Tax Credit (Winn)
The ACLU of Arizona filed a federal lawsuit challenging the state’s individual tax credit program, arguing that it unconstitutionally transfers public funds from state coffers to private, sectarian organizations. The Arizona Supreme Court upheld an individual tax credit in 1999 in Kotterman v. Killian. The court’s decision was based primarily on the conclusion that the state was not “appropriating” public funds. After the above tax credit law was implemented and it was apparent that the primary beneficiaries were religious schools, the ACLU then filed the present lawsuit in federal court, arguing the individual tax credit program violates the U.S. Constitution’s Establishment Clause by allowing state funds to support religious education. After a loss in the District Court, cooperating attorney Marvin Cohen filed an appeal to the Ninth Circuit.  Based on this brief and oral argument for the ACLU by Professor Paul Bender, in a very important ruling concerning freedom of religion and the separation of church and state, the appellate panel unanimously reversed the trial court decision. The panel found that in practice the state tax credit scheme apparently discriminated in favor of sectarian religious schools in violation of the establishment clause of the First Amendment, and remanded the case in order to confirm this finding. Defendants have filed petitions for certiorari to the U.S. Supreme Court and plaintiffs have filed a response with assistance from the national office.