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The American Civil Liberties Union In The Courts
The ACLU of Arizona undertakes litigation when doing so is the most effective way to advance a civil liberties concern. We file lawsuits that will have an impact on people's rights by setting a legal precedent or affecting the policies and actions of public officials. We both provide direct legal representation to people and file amicus (friend-of-the-court) briefs addressing civil liberties issues in cases initiated by others. All the ACLU's legal work is on a pro bono basis; we never charge for our legal services.
State of Arizona v. 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. An evidentiary hearing occurred before federal court Judge Broomfield. Despite the fact that state prosecutors had not met their burden of demonstrating that Milke’s confession was voluntary and the interrogating officer Saldate was the only witness to the alleged confession and he intentionally did not take notes nor make recording and re-created what was said after the fact, the court adopted the position of the state and ruled against her. It has been revealed that Saldate had a history of fabricating confessions, but the County Attorney’s office failed to inform the defense of this crucial information; subsequently the relevant personnel records are missing.
This devastating decision was challenged in the 9th Circuit by attorneys Lori Voepel and Mike Kimmerer, and oral argument occurred on November 3, 2010. On March 14, 2013, a three-judge panel of the 9th Circuit Court of Appeals overturned her conviction and in a strongly-worded opinion condemned Saldate for using coercion to secure a confession from Milke. There were no witnesses to the alleged confession and Milke denied confessing to the crime. In a very unusual step, based on the corrupt actions of the prosecution in the record the Court of Appeals ordered Debra Milke released absent a new trial. Despite the improper and illegal actions of the County Attorneys in this case, and the fact that Debra Milke has spent over 20 years on death row likely because of the malicious actions and failures by the prosecution, on July 9, 2013, County Attorney Bill Montgomery announced that his office would re-try her. The ACLU of Arizona condemns this continuation of the misuse of prosecutorial power and use of the County Attorney office for political gain, and will assist in defending against the continuing vendetta by the County Attorney on the taxpayer’s tab.
Riley v. City of Prescott: On August 8, 2011 the ACLU of Arizona, with the firm of Martin & Bonnett, filed a federal lawsuit against Prescott Mayor Kuykendall and other officials on behalf of KayAnne Riley. KayAnne was fired from her job with the Yavapai County Humane Society (YHS), a City contractor after pressure from Mayor Kuykendall because she had spoken out about past acts of retaliation and bullying by the Mayor and the City. KayAnne was very well qualified for her job as a former war correspondent, public relations person and former Marine. The Mayor caused her firing consistent with his history of retaliatory acts against City employees. The Mayor filed a Motion to Dismiss a week after the case was filed (it was election season), and we filed in opposition. Agreeing with our position in his ruling, on February 16, 2012, Judge James Teilborg declined to dismiss Mayor Kuykendall or Prescott as defendants, noting that the facts in the Complaint state a plausible claim that the Mayor "violated Plaintiff's constitutional rights to engage in free speech free of governmental interference." Earlier in December 2011 a partial settlement was reached with the YHS defendants. In return for a payment to KayAnne Riley, these defendants were dismissed from the case. Discovery involving the remaining defendants has ended, and the parties are submitting their requests for Summary Judgment.
Baldwin v. D’Andrea. On June 25, 2013, the ACLU of Arizona, with cooperating Flagstaff counsel, filed a lawsuit to have a provision of state law that criminalized peaceful begging declared unconstitutional and to end the policy of Flagstaff law enforcement officials to single out for arrest, jailing and prosecution homeless persons in public areas who peaceably asked for donations from passers-by including “one or two dollars” for food. The case was filed in federal district court in Phoenix and assigned to Judge Neil Wake. The plaintiffs are three persons, two homeless, who are understandably afraid to peaceably ask for a dollar or for left-over food in any public area, sidewalk or park, in Flagstaff because of the acknowledged practice of targeting such solicitations for arrest and jailing. As also acknowledged the business community wants these persons off the streets and jailed “early in the day.” The final plaintiff is a volunteer organization, Food Not Bombs (“FNB”), devoted to feeding poor and hungry persons in Flagstaff by providing free meals. Some of its members have been targeted by the police and prosecutor for peaceably asking for a donation in order to eat.
Most of the arrests are based on an Arizona state law: A.R.S. 13-2905(A)(3). This provision makes it a crime to be “present in a public place to beg.” On its face it prohibits constitutionally protected speech and is not limited in any manner covering requests made in any public area and at any time of the day or night. Aggressive or disruptive conduct is not a required element. This Dickensian state law and equally dehumanizing Flagstaff policies demand intervention by the Court; we will seek preliminary and permanent injunctive relief.
ADAC v. Brewer (Fair Treatment for Young Immigrants): The ACLU, in partnership several other civil rights organizations and the private firm Polsinelli Shughart, filed a lawsuit challenging an Executive Order issued by Governor Brewer that directed the Arizona Department of Transportation and the Arizona Motor Vehicles Department to deny driver’s licenses to DACA recipients, immigrant youth whom the federal government has allowed to stay and work in the country. We filed a class action complaint on November 29, 2012, alleging that the Governor’s order was not only unconstitutional, but that it also violated our fundamental values of fairness and equality by harming these young immigrants simply because of their perceived immigration status. The state action is attributable to the Governor’s unwillingness to recognize the authority of the federal executive in this context; all other categories of immigrants granted “deferred action” status by federal action continue to be allowed drivers licenses. The parties filed various motions regarding Plaintiffs’ request for an injunction, as well as the merits of action, and hearing was held on March 22, 2013.
On May 16, 2013, the district court denied Plaintiffs’ request for preliminary relief but found that they were “likely to succeed” on their equal protection claim since Arizona had given and was continuing to grant drivers licenses to other “deferred action” groups. The Court dismissed Plaintiffs’ preemption claim based on the fact that Arizona was infringing on federal prerogatives by determining for itself that the DACA recipients were not “authorized” to be in this country. The failure to grant a preliminary injunction and the dismissal of the supremacy clause claim are being appealed to the Ninth Circuit. At the same time a short four month discovery period has started in the trial court on the equal protection issues including the irreparable harms being suffered by Plaintiffs due to the inability to obtain licenses.
Franco-Gonzalez v. Napolitano (Fair Treatment for Detained Migrants): The ACLU of Arizona is co-counsel in Franco, which seeks relief for mentally ill immigrants detained in Arizona, California and Washington by requiring the federal government to provide independent competency evaluations for individuals who may be suffering from a mental illness and to appoint counsel in cases where one cannot represent themselves on account of their disability. Without the right to court-appointed counsel, immigration hearings are already difficult for most pro se immigrants. For the mentally ill, presenting legal claims in court becomes nearly impossible often resulting in due process violations including unlawful and/or prolonged detention and wrongful deportation. Protecting the rights of this vulnerable population is critical to establishing greater protections for all immigrants in their removal hearings which carry great consequences including family separation, deprivation of liberty and threats to safety and well-being. The ACLU of Arizona is co-counsel on this case with the ACLU of Southern California, ACLU Immigrants' Rights Project, ACLU of San Diego, Public Counsel, Mental Health Advocacy Services, the Northwest Immigrant Rights Project and Sullivan & Cromwell, LLP. In a very important decision, in December 2011 the request by Plaintiffs for class certification was granted by Judge Gee, enabling the litigation to go forward on behalf of all present and future persons subjected to possible deportation without representation despite lacking the ability to understand or participate in the immigration proceedings.
Lopez-Valenzuela v. Maricopa County (Fair Treatment for Detained Migrants): 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. Discovery was completed and cross motions for summary judgment filed. On May 13, 2011, the Court ruled in favor of defendants on this motion.
Plaintiffs disagreed with the reasoning and appealed to the Ninth Circuit Court of Appeals. In June, the Ninth Circuit upheld the decision. In a forceful dissent, Judge Raymond Fisher demonstrated that the Arizona law goes far beyond existing denials of the ability to even argue for pre-trial release in other states, and that this denial of liberty without any hearing constitutes a clear violation of due process rights. Based on the dissent, Plaintiffs’ are seeking en banc review. In addition to our brief, amicus submissions will be made by law professors and criminal defense advocates.
Jail & Prison Conditions
Parsons v. Ryan: For the past five years, our greatest numbers of civil liberties complaints have come from persons confined in the Arizona state prison system. We receive numerous and horrific reports of basic failures to treat serious medical and emotional problems resulting in increased illness, loss of limbs and preventable deaths. Equally troubling are complaints concerning the destructive impacts of the widespread use of “super max” and solitary confinements characterized by sensory deprivation with no views of the outside, no contacts with other prisoners and locked in a cell around the clock with time out for an hour three days per week to “exercise” in another windowless area. The resource-intensive nature required to investigate no less litigate these claims meant that we were not in position to effectively intervene; some affiliates have stopped considering intakes from prisons because of the inability to address reported problems.
After much effort we were able to bring together leading prison litigators from throughout the country to enable a challenge to the ADC practices and end their callous indifference to the basic rights and needs of the more than thirty thousand prisoners confined each day. The National Prison Project of the ACLU and the California Prison Litigation Office signed on, as well as the Perkins Coie law firm in Phoenix and the Jones Day firm in California, plus the Arizona Center for Disability Law, and joined with us to launch a landmark case. On March 22, 2012, the litigation began with a 74-page Complaint in the U.S. District Court, before Judge Neil Wake. With fourteen named plaintiffs, and seeking class certification on behalf of all persons who are now or will be confined in the ADC, we are asking for injunctive relief to end the inhumane and unconstitutional failures to provide minimally adequate medical, mental health and dental care to persons the State has chosen to confine, and to end the abusive conditions in the solitary confinement units.
The state moved to dismiss our complaint, but U.S. District Court Judge Neil Wake denied the defendant’s motion. Discovery has been challenging, especially since the ADC subcontracted its medical services to a private contractor called Wexford shortly after we filed our complaint but a large amounts has been undertaken, including tours of the facilities by the five experts who will be testifying for Plaintiffs. Plaintiffs’ Motion for Class Certification was granted by the District Court on March 6, 2013, and discovery involves the systemic inadequacies that have or could impact any prisoner in the state system resulting in avoidable physical or mental deterioration and even deaths.
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 factual and 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. In an important ruling for plaintiffs in this case, and as a precedent for others. In October 2010, the Ninth Circuit Court of Appeals ruled that the District Court was correct in finding that the MCSO did not meet constitutional standards in several areas of jail operations, and in keeping the Consent Decree in place. At this point, the important areas of medical and mental health care are the only aspects of the original Decree that remain under federal court supervision.
White Mountain Health Center v. Maricopa County: The ACLU of Arizona, with our National Criminal Law Reform Project, filed a brief in support of a medical marijuana dispensary that sought to service qualified patients in Sun City under the Arizona Medical Marijuana Act (“AMMA”), an initiative voted into law by Arizona citizens. We support White Mountain's fight against both the Arizona Attorney General and the Maricopa County Attorney who, rather than complying with the law, have subverted the will of Arizona citizens by refusing to provide this qualified dispensary with the relevant permits and certificates to provide much-needed and prescribed medical marijuana to patients in our state. The ACLU's brief addresses the specific issue of whether the Arizona government can shirk its obligations under Arizona law under a non-existent threat of federal prosecution. The trial court ruled in favor of our client, agreeing with us that the AMMA is not pre-empted by federal law, and that local governmental employees did not risk prosecution by federal agents for merely administering the AMMA pursuant to state law and regulation. The trial court ordered all defendants to comply with their duties under the AMMA. Maricopa County then appealed this ruling and filed an emergency motion to stay the trial court’s ruling. The trial court denied the motion to stay, and the county filed an emergency motion with the Court of Appeals. The Court of Appeals held oral argument on December 20, 2012 and denied the county’s motion within a few hours. The defendants’ appeal on the merits is now pending at the Court of Appeals. Maricopa County filed its Opening Brief, and we filed our Answering Brief on March 6, 2013. The State filed its Opening Brief on March 13, and we have filed our response. Maricopa County also filed a Petition to Transfer the case to the Arizona Supreme Court, but the Arizona Supreme Court denied the petition.
Law Enforcement Misconduct
Valle Del Sol v. State of Arizona: On May 17, 2010, the ACLU of Arizona joined with other legal groups, including the IRP, NILC and MALDEF, to file a constitutional challenge to SB 1070. This comprehensive state law includes provisions that Republican legislators, previously led by Russell Pearce, have been seeking for years, many of which were vetoed by then 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 sought a preliminary injunction to prevent all or portions of the law from being implemented on the July 29, 2010 effective date. On July 22, 2010 oral argument was heard by Judge Susan Bolton, in both the ACLU case and in the case brought by the U.S. Department of Justice, which also sought to enjoin the law as being preempted by federal laws and actions. On July 28, 2010, ruling in the DOJ case, the Judge agreed with the arguments of the ACLU, and the federal government, and enjoined the key provisions of SB 1070 from going into effect until fully litigated. This decision, at least, temporarily reduces the worst fears in the Latino community in Arizona and deters the passage of similar laws in other states; it is a significant victory. Arizona appealed the decision to the Ninth Circuit Court of Appeals and oral argument took place on November 1, 2010. In a significant victory for the Plaintiffs in the ACLU (Valle Del Sol case) on October 8, 2010, Judge Bolton denied most of Defendants' Motion to Dismiss the Complaint. The Court found that the organizational plaintiffs had sufficiently demonstrated that they would be harmed by the operation of SB 1070 and these harms were not "speculative" thus giving the requisite standing to maintain this lawsuit. The key allegations made by Plaintiffs, including violations of the Equal Protection Clause (the Complaint sufficiently alleges "that race, alienage or national origin discrimination was a motivating factor in the enactment of SB 1070") and of the Fourth Amendment because stops made by law enforcement could impermissibly extend the time to detain persons while immigration status is checked, remain intact and discovery will proceed on these issues.
In May 2011, the Court denied Plaintiffs' request for a Preliminary Injunction against the SB 1070 provision because the same relief had been granted in a lawsuit brought by the federal government. With the ACLU participating as amicus, the Ninth Circuit Court of Appeals affirmed this important result and the State sought interlocutory review by the U.S. Supreme Court.
In October 2011, we filed an Amended Complaint adding new plaintiffs and renewed the motion for a Preliminary Injunction on the anti-solicitation for employment provision of the bill. The renewal was based on an en banc reversal by the Ninth Circuit of an erroneous decision by a three-judge panel finding that a similar restriction did not violate First Amendment rights in the Redondo Beach litigation. In February 2012, Plaintiffs' Motion was granted and eliminated the chilling effect that these provisions had on solicitation for day labor work. The State appealed this decision to the Ninth Circuit Court of Appeals, and oral argument was held on October 17, 2012.
In a development with great importance for this case, in December 2011, the U.S. Supreme Court agreed to review the injunction granted by Judge Bolton on the key provisions of SB 1070, and upheld by the Ninth Circuit, in the case of U.S. v. Arizona (brought by the Department of Justice). The case was argued before the Supreme Court in April 2012, and an opinion issued on June 25, 2012. The Supreme Court upheld most of Judge Bolton’s ruling but, unfortunately, reversed and remanded on the key “show me your papers” provision. The Court found that it was not on its face unconstitutional, but, depending how it was implemented the law may not survive a challenge as applied if it resulted in lengthy detentions.
After the U.S. v. Arizona opinion was issued, the Valle Del Sol plaintiffs filed another challenge to the remainder of SB 1070, arguing the discriminatory intent of the legislators, especially Russell Pearce, in drafting and enacting the law. Unfortunately, the District Court denied our request for an emergency injunction to stop SB 1070's "show me your papers" provision from going into effect. The District Court indicated that it needed evidence that law enforcement would actually implement the law in a discriminatory fashion in order to stop it, and this will require more time to document enforcement practices. We are working to gather information from the community about how police enforce the new law so that we can bring such evidence to the District Court's attention.
Part of the case is also now on appeal to the Ninth Circuit Court of Appeals, and briefs are being filed. The appeal concerns the favorable ruling by the District Court preliminarily enjoining the law’s ban on so-called “harboring” or transporting persons without lawful status. In addition
on March 4, 2013, the Ninth Circuit upheld the District Court’s injunction against the provisions of SB1070 regarding day laborers. The Ninth Circuit held that the SB1070 provision that prohibited solicitation for work on public sidewalks and roads violated the free speech rights of those who seek employment and of those who would hire them
Loxas v. City of Scottsdale: The ACLU of Arizona joined the Chicago-based law firm of Loevy & Loevy in filing a lawsuit on September 24, 2012 on behalf of the family members of John Loxas, Jr., who was killed instantly after being shot in the forehead while holding his infant grandson. The 50-year-old Scottsdale man was shot in February 2012 by Scottsdale Police Officer James Peters despite having no weapon and posing no threat. The wrongful death lawsuit was filed on behalf of Loxas’ daughter, Alexandria Loxas, and his father John Loxas, Sr. In addition to listing Officer Peters as a defendant, the lawsuit also names Scottsdale Police Chief Alan Rodbell, arguing he failed to implement adequate policies to hold the City of Scottsdale and abusive officers accountable. Officer Peters was involved in an unprecedented seven shootings over the past ten years – six of them fatal. Peters also had a long history of excessive use of force against civilians, including many incidents involving Tasers; he was the subject of four separate citizen complaints in the three months leading up to the fatal shooting of Loxas. The defendants have filed their answers to the complaint, and the case is proceeding in the initial stages of discovery. A day long mediation session resulted in agreement by all parties to end the litigation in return for a very substantial sum of money for the Loxas family. While final details are being made, the agreement has been signed and approved by Scottsdale City officials.
U.S. v. Rigmaiden: On October 29, 2012, the ACLU filed an amicus brief in this important constitutional case. In its brief, the ACLU supported Mr. Rigmaiden’s Motion to Suppress evidence obtained by the government by means of a so-called “stingray” device, which locates and identifies wireless devices in its vicinity and can be used for other forms of surveillance. This case will likely result in the first decision to address the constitutional implications of the use of a stingray device. Stingrays are highly intrusive and indiscriminate. To locate a suspect’s cell phone, stingrays obtain information from all devices on the same network in a given area and send signals into the homes, bags, or pockets of the suspect and third parties alike. This type of device can capture the content of communications, not merely the location of the device. Their use implicates the privacy interests of the suspect, as well as untold numbers of third parties as to whom there is no probable cause. In Mr. Rigmaiden’s case, the government submitted an Affidavit and supporting Application to magistrate that failed to disclose the government’s intent to use a stingray and the device’s indiscriminate intrusiveness into protected areas. Such actions by the government constituted an unlawful invasion of privacy and an unlawful search and seizure in violation of the Fourth Amendment. The issues are briefed, and the District Court heard extensive oral argument on March 28, 2013. Unfortunately, in a hard to justify result that did not appear consistent with the failures of the government to present sufficient facts to the court to enable informed consideration before issuing a far-reaching search warrant, the Court ruled in favor of the prosecution and did not suppress the evidence resulting from this search. Mr. Rigmaiden is continuing his important fight.
Isaacson v. Horne: Given the great influence of anti-choice religious groups in Arizona, it’s no surprise that the Arizona Legislature has taken a lead role in the war on women’s health. The ACLU of Arizona has responded to challenge these efforts. Last year, the ACLU successfully litigated a case against the denial of working poor tax credits to groups that even discuss abortion as an option. Since the 2012 legislative session, we have filed two more federal court cases seeking to protect women’s rights and health. First, the ACLU, with co-counsel Center for Reproductive Rights, filed a lawsuit on July 12 to enjoin enforcement of the harshest provision of HB 2036, which bans abortions beginning at 20 weeks of pregnancy. HB 2036 is one of the most severe anti-abortion laws in the country, and would force women with serious and life-threatening health conditions, even fatal fetal anomalies, to carry their pregnancies to term, regardless of the consequences. Although the District Court dismissed the entire case, the Ninth Circuit Court of Appeals granted our emergency motion to stay enforcement of the law and set an expedited briefing schedule. Oral argument on the merits of the appeal was held on November 5, 2012, and in an important decision, the Ninth Circuit panel unanimously ruled that the Arizona law was an unconstitutional burden on the privacy rights of a woman who might seek an abortion. .The Supreme Court has long been clear that such restrictions are not permitted prior to viability, and that does not occur before twenty-four weeks of pregnancy. Similar laws have been passed in other states and, led by Congressman Franks, are being pushed in Congress; they are similarly unconstitutional.
Planned Parenthood v. Betlach: The second reproductive rights case filed this year concerns HB 2800, which disqualifies any entity or individual who provides abortions (except in narrowly defined circumstances) from participating in Arizona’s Medicaid program. This bill was targeted at Planned Parenthood, and seeks to prevent it from receiving reimbursement for preventive health care such as mammograms, cancer screenings, and other “well woman” services; the overwhelming majority of the resources of this organization go toward these services and their clinics are the full service health provider for thousands of women. Planned Parenthood Foundation of America and the ACLU filed a lawsuit on July 16 to enjoin enforcement of HB 2800, and to vindicate rights secured by the federal Medicaid statutes as well other provisions of the U.S. Constitution. The State agreed to a temporary stay against enforcement of HB 2800 while the parties brief the constitutional issues. Unfortunately, after agreeing to the stay, the State hired the extremist Alliance Defending Freedom to defend the unconscionable bill. This group has sought to impose its extreme conservative and religious views on women and deprive them of their reproductive rights. The US Department of Justice, on behalf of the Department of Health and Human Services, filed a brief in support of our position. Planned Parenthood filed a motion for preliminary injunction, which the State defendants opposed. Oral argument was held on October 5, 2012.
On November 15, 2012, based on the likelihood of success on the merits and the irreparable harms suffered by women because of this law, U.S. District Court Judge Neil Wake granted our request for a preliminary injunction, which blocked implementation of HB2800 in the District Court, Planned Parenthood filed a Motion for Summary Judgment, and the State defendants have responded. The District Court granted the dispositive motion on February 8, 2013, finding again that HB2800 violates the Medicaid statutes and is unconstitutional; similar laws have been passed in other states and will suffer the same fate. The District Court permanently enjoined the Arizona law on February 22, 2013.The State defendants appealed this ruling to the Ninth Circuit Court of Appeals, briefs were filed, and oral argument was held on June 12, 2012. We expect a decision in the next few months.
Arnold v. Department of Public Safety: 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.
Ortega Melendres v. Arpaio: In a case that started in 2008, the ACLU, the ACLU of Arizona, MALDEF and Covington and Burling, LLP are representing plaintiffs in a class action lawsuit against Maricopa County Sheriff Joe Arpaio, the Maricopa County Sheriff’s Office and Maricopa County for racial discrimination against Latinos. The lawsuit charges that Sheriff Arpaio and the Maricopa County Sheriff’s Office (“MCSO”) have unlawfully instituted a pattern and practice of targeting Latino drivers and passengers in Maricopa County for traffic stops, investigations an arrests based on their race and ethnicity. MCSO’s practices discriminate on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment, and have resulted in prolonged traffic stops and baseless extended detentions, in violation of the Fourth Amendment. In its zeal to rid the community of persons that it believes are undocumented immigrants, MCSO has engaged in massive racial profiling and improper stops in an attempt to increase the persons presumed to be in the U.S. unlawfully –because they look different, and to increase the pool of potential undocumented immigrants and add to MCSO’s press-release statistics in order to prove that they are a “full-fledged immigration agency,” – and deserve your vote. In the course of such sweeps and patrols, the civil rights of countless U.S. citizens and lawful immigrants were also violated.
In July 2012, the ACLU and its legal partners started the historic trial in federal court forcing Arpaio to explain his improper and illegal policies, and to defend his discriminatory policing practices in front of a judge; the public in Arizona and throughout the country was the jury. Plaintiffs presented many witnesses, including the Sheriff and MCSO officers, comprising hundreds of pages of evidence showing that the Sheriff acted on racially charged citizen complaints and requests for operations. The statistics from these operations demonstrated that Latino persons were targeted and disproportionately stopped and investigated based on pretextual traffic violations. These and other actions created an agency culture that encouraged discrimination and permitted racial bias to flourish.
On May 24, 2013, Judge G. Murray Snow rendered a comprehensive and meticulous 142 page decision, finding that the Sheriff and MCSO had an agency wide pattern and practice of using race –and not criminality- to target persons for investigation and detention, and for illegal stops and seizures, in violation of fundamental rights protected by the U.S. Constitution. The Latino community in Arizona finally heard confirmation of their long ignored charges of abuse and terrorism by the Sheriff and MCSO; communities of color throughout the U.S. hailed this landmark decision. It was the first independent confirmation of the illegal and damaging acts committed on a massive scale by this Sheriff and this agency. In his Order, Judge Snow permanently enjoined the specific practices that violated constitutional rights. The final Order at the trial level is being worked on as the parties and ultimately the Court, determine the scope and content of the remedial injunction, and what mechanisms and safeguards are needed to endure that these violations cease and that the culture of racial discrimination and animus end. These will include the appointment of an independent monitor and expansive data collection for all vehicle stops. The complete injunction is expected to be entered in early Fall.
NAACP & NAPAWF v. Horne
On May 28, 2013, the ACLU of Arizona with the ACLU Reproductive Freedom Project filed suit against an Arizona law, formerly H.B. 2443. The Plaintiffs are the Maricopa NAACP and the National Asian Pacific American Women’s Forum (“NAPAWF”). Passed two sessions ago, this law is an attack on Black and Asian or Pacific Islander (“API”) women. Based on invidious racial stereotypes about the reasons minority women seek abortion care, the legislative sponsors singled out Black and API women and, without any one example of a race or sex selection abortion occurring in Arizona, determined that the unborn babies of women from these groups needed to be protected against their alleged weakness or animus. As made clear in the legislative discussions, the law was premised on the sponsors’ beliefs that Black and API women are deliberately using abortion to destroy and diminish their own communities. This unprecedented move to control the personal, private decisions by Black and API women in particular is a blatant violation of Equal Protection rights and the prohibition against state laws that discriminate on the basis of race. The fact that on its face the law does not mention any one race does not detract from the clear intent and stated concerns of the sponsors and supporters: Black women in Arizona cannot be trusted and will abort because the baby will be Black and API women in Arizona cannot be trusted and will abort because the baby will be female. The case is in its early stages in front of Judge David Campbell in the Arizona federal district court.
Fazlovic v. MCSO: In May 2009, the ACLU of Arizona filed a federal lawsuit because of the failure of the Maricopa County Sheriff's Office (MCSO) 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 his starting work, they failed to accommodate Sinan's need and in fact reduced his pay and retaliated against him. A Motion for Summary Judgment was filed on behalf of the Plaintiff in February, 2012. Oral arguments on this and Defendants' Motion for Summary Judgment were held on June 4, 2012. Magistrate Judge David Duncan ruled that Mr. Fazlovic may continue to trial on his claim of religious discrimination in violation of Title VII of the Civil Rights Act. Trial occurred December 11-17, 2012. Unfortunately, the jury returned a verdict in favor of defendants.
Guzman-Martinez v. CCA: On December 5, 2011, the ACLU of Arizona, with cooperating attorneys from the Phoenix law firm Lewis and Roca, filed a federal court Complaint on behalf of Tanya Guzman-Martinez. Ms. Guzman-Martinez is a transgender woman who was in detention awaiting a ruling on her application for asylum on the grounds that she had been and would continue to suffer persecution, mental and physical harm if returned to Mexico. She was granted asylum but not in time to prevent persecution including physical and sexual assaults while detained by Immigrations and Customs Enforcement (ICE) in a facility run by the Corrections Corporation of America (CCA) in Eloy, Arizona. ICE and the CCA failed to take required steps to protect Ms. Guzman-Martinez from the threats posed by male guards and detainees. As a result, she was criminally molested by a guard (he was convicted) and later by a detainee, resulting in serious physical and emotional harms. The lawsuit seeks damages to compensate her for the serious and continuing harms and to deter CCA and ICE from housing future transgender detainees in a manner that subjects them to serious risk of injury and harassment. Defendants filed various motions to dismiss the constitutional claims. Unfortunately, the District Court ultimately granted some of the motions to dismiss, indicating that the scope of constitutional rights afforded to transgendered inmates in this jurisdiction is not clear. Certain claims, including those against the guard who molested Ms. Guzman-Martinez, were recently settled by payment of compensation to Ms. Guzman-Martinez.
Gonzalez v. Arizona: 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 and a subsequent appeal to the 9th Circuit by Plaintiffs. With MALDEF taking the lead on the appeal the Circuit reversed the trial court and declared a key aspect of the Arizona law unconstitutional. Specifically Arizona’s requirement that prospective voters must provide documentary proof of citizenship was found to be superseded by the National Voter Registration Act and, therefore, requiring additional identification as a pre-requisite to federal voter registration was not permitted at the state level. On April 27, the 9th Circuit ordered a rehearing en banc and oral arguments took place on June 21. In April 2012, the Circuit ruled that the State's requirements for registration identification for federal matters were unconstitutional, but allowed them at the polling place. On remand to the District Court, Judge Silver ordered that all Arizona elections officials must offer and accept the Federal voter registration form, which does not require ID. The State filed a petition for certiorari to the United States Supreme Court. On October 15, 2012, the Supreme Court granted the State’s petition, so this case will proceed at the high court. Oral argument has been scheduled for March 2013.
In re Tyler B: On March 15, 2013, the ACLU of Arizona, the National College for DUI Defense (NCDD), and Arizona Attorneys for Criminal Justice (AACJ) filed an Amicus Brief in support of Tyler B’s position in an important case concerning the 4th Amendment. This case concerns a juvenile who was arrested at school for DUI after school officials searched his car and found marijuana paraphernalia. Police were called, and they interrogated the Tyler B. in the principal’s office. Tyler B’s parents were called, and although they came to the school and were waiting just outside the principal’s office, they were not told that their son was being interrogated by police. Further, a police officer walked out past the parents to go to his car to retrieve a blood draw kit, and came back and took Tyler B’s blood without informing or asking the parents. Tyler B. was upset and confused during the interrogation, and was briefly handcuffed until he calmed down. Before trial, Tyler B. moved to suppress the blood evidence, arguing that the blood draw was taken in violation of the 4th Amendment, that Tyler B’s consent was not voluntary, and that the blood draw violated the Parents’ Bill of Rights, which requires parental consent before any medical procedure, including a blood draw, may be performed on a juvenile. The trial court agreed and granted Tyler B.’s motion, and the State appealed, arguing that Arizona’s implied consent law makes consent irrelevant. The Court of Appeals agreed with the State’s position and reversed.
Tyler B. petitioned the Arizona Supreme Court, and court took review of the case, asking the parties and inviting amicus to address 3 issues. We addressed the first issue identified by the Court: Notwithstanding Arizona’s implied consent law, must consent be voluntary under the Fourth Amendment for the blood draw to be admissible? Oral argument was held on March 26, 2013 and in April the Supreme Court reversed the decision and found that the Fourth Amendment rights of the juvenile defendant were violated. In a very important result for future defendants in Arizona, and at a time when Fourth Amendment rights are being significantly reduced by the U.S. Supreme Court, in a decision by Justice Bales the Arizona Court made clear that consent in this –and other contexts- must be knowing and voluntary in fact. The young age of the person targeted by the police interrogator (and isolated from his parents) was understandably found to be relevant to the determination of voluntariness.