The American Civil Liberties Union In The Courts
The ACLU 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.
Transgender Discrimination/Excessive Force (Guzman-Martinez v. CCA) NEW
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 ICE in a facility run by the Corrections Corporation of America (CCA). 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 trans gender detainees in a manner that subjects them to serious risk of injury and harassment.
Retaliatory Firing of Public Employee for Speech (Miller v. Mohave County Probation Department) NEW
On November 17, 2011, the ACLU of Arizona, with the law firm of Martin & Bonnett, filed a federal case on behalf of Joe Miller against the Mohave County Probation Department and the State of Arizona. Mr. Miller was fired from his job as a probation officer because he had signed onto a letter from numerous law enforcement officials in favor of a California legalization of marijuana referendum; the letter clearly stated that the names of the law enforcement agencies were for identification only. Many criminal justice officials in the County, and throughout the state, had publicly advocated against change in the drug laws. Mr. Miller did not use any work time or resources on this matter of public concern. It is important that the views of persons who have first hand knowledge of the problems created by our present approach and failed drug policies are not silenced. Defendants have filed a Motion to Dismiss with our Response due in January.
Opposition to Arizona's Attempt to End the Voting Rights Act (State of Arizona v. Holder) NEW
Arizona is the first state to sue the federal government and seek to have the key provisions of the Voting Rights Act (VRA) declared unconstitutional. Arizona wants to end "pre-clearance" review by the Justice Department of state laws that may impact or dilute the voting rights of minority voters. These reviews have become increasingly important as laws proliferate here and throughout the country that are intended to –and do- reduce the ability of minority and poor persons to cast a ballot; such laws have not been based on a showing of widespread fraud as claimed by their backers. With the national Voting Rights Project of the ACLU, the ACLU of Arizona has filed a motion to intervene on behalf of seven non-white voters, including Latinos, Native Americans, African Americans and Asian Americans, as defendants in opposition to the far reaching attempt by Arizona to void the VRA and be free of federal review of changes that may or would reduce the voting abilities of these populations.
Medical Marijuana (Arizona v. U.S.) NEW
Arizona filed a federal lawsuit seeking a declaratory judgment on the issue of whether the recently passed referendum allowing for use of medical marijuana can stand given federal laws that may criminalize such use. Govenor Brewer and Attorney General Horne were opposed to the referendum and the lawsuit is an attempt to thwart the will of the voters. Thus, the Governor ordered the state health department to stop processing dispensaries required by the referendum because of the alleged uncertainty. The U.S. Attorney in Arizona made it clear that there was no intention to seek to prosecute state employees who are acting pursuant to a valid state law. The ACLU of Arizona (ACLU-AZ) joined with the national Criminal Justice Law Reform Project to defend against the bogus litigation and to enable operations to continue per the referendum and allow patients to receive the needed marijuana. On May 7, 2011, on behalf of defendant Arizona Medical Marijuana Association, ACLU-AZ filed a Motion to Dismiss the lawsuit because a state cannot act to challenge the constitutionality of its own law and there is no case or controversy given the absence of an imminent threat of federal prosecution. Oral argment on the motion occurred in December 2011.
Retaliatory Firing of Public Employee for Speech (Riley v. City of Prescott) NEW
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 and 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; oral argument is set for February 2012. 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. The Mayor, City Manager, and Prescott remain as defendants.
Anti-Choice/First Amendment (Arizona Coalition Against Domestic Violence v. John Greene) NEW
On behalf of groups involved with counseling victims of domestic violence, the ACLU of Arizona with the ACLU Reproductive Freedom Project filed a constitutional challenge to one of the recent state laws that seek to deny a woman’s access to abortion services or even information. The lawsuit states the bill illegally denies an individual tax credit – available to all other organizations that assist the poor – if the organization receiving the donation even “promotes” abortion. For example, discussion of the range of options available to a woman who is pregnant as a result of an assault would fall into that category. As a result, the plaintiff organizations are predictably “chilled” in their discussions with clients or risk losing a funding source. The Complaint was filed on August 18, 2011.
In October, we filed a Motion for a Preliminary Injunction, asking the Court to enjoin this law from going into effect at the end of 2011 as planned. Argument on this Motion took place on November 16, 2011 before Chief Judge Roslyn Silver, District Court of Arizona. On December 22, 2011, Chief Judge Silver granted Plaintiff's request and enjoined implementation of the state law. This important decision protects the rights to counsel women about all of their health care choices and prohibits discrimination against organizations that properly include discussion about or referral for abortion. It is expected that a permanent injunction will follow and possible appeal by the State to the Ninth Circuit.
Censorship by Pinal County Sheriff (Prison Legal News v. Babeu) NEW
Sheriff Babeu and the Pinal County Jail have censored and withheld from all detainees, without reason or notice, issues of the informative periodical “Prison Legal News” as well as PLN’s paperback book on inmate health and other materials on issues of concern. Such materials are regularly allowed by jails and prisons. The ACLU of Arizona with the firm of Rosen, Bien & Galvan, filed suit on September 7, 2011 on behalf of PLN because of the infringement on fundamental First Amendment rights including to reach their audience and to be heard.
Immigration Detention (Franco-Gonzalez v. Napolitano) NEW
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.
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 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 sought a preliminary injunction to prevent all or portions of the law from being implemented on the July 29 effective date. On July 22, 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, 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 has appealed this decision to the Ninth Circuit Court of Appeals and oral argument took place on November 1. In a significant victory for the Plaintiffs in Friendly House, on October 8, 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, 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 will be seeking 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. Plaintiffs also renewed the request for class certification. 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 will be argued in April 2012 and decided by June 2012.
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 (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 starting work, they failed to accommodate Sinan's need and in fact reduced his pay and retaliated against him. Discovery has ended but may be extended because of the failure of defendants to forward requested documents. A motion for summary judgment will be filed by the end of January 2012 . Read the Complaint.
Racial Profiling and Unreasonable Seizures (Ortega Melendres v. Arpaio)
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 4, 2011 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.
On April 29, 2011, Plaintiffs filed a comprehensive Motion for Summary Judgment, accompanied for a request for Class Certification. The submission demonstrated that the goal of the MCSO suppression operations was to target Hispanic and Mexican occupants of vehicles. As found by the statistics expert, facially neutral traffic laws were applied in a racially discriminatory manner. The emails by and letters to MCSO personnel further revealed Defendants racially derogatory characterizations and motives. On December 23, 2011, the Court published its ruling. First, it found that there was sufficient evidence that a trier of fact could conclude that the MCSO had a policy of racial profiling and that a trial should be held on this and other issues with the Judge as fact-finder as only injunctive relief is involved. Second, it granted Plaintiffs' motion for class certification allowing all Latinos stopped or detained by MCSO to join and present evidence. Finally, the Court set out the serious evidentiary sanctions that would be imposed on Defendants as a result of their intentional failures to maintain and provide relevant information and documents.
Death Penalty, Criminal Procedure and 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. An evidentiary hearing occurred on Jan. 4th and 5th 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 that the one testifying police officer was not credible, the court adopted the position of the state and ruled against her. This devastating decision is being challenged in the 9th Circuit and oral argument occurred on November 3, 2010. Read the amicus brief.
Fourth Amendment and 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 En Banc Supplemental 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 and 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. 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 disagree with the reasoning and have appealed to the Ninth Circuit Court of Appeals. Briefing will be complete by February 2012 with oral argument to follow.
Voting Rights (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. Read the Ninth Circuit Decision.
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. Read the Complaint and Settlement Agreement. Read the NAU Report in Spanish.
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. 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. Read the Second Amended Judgment and the 9th Circuit Opinion affirming the Second Amended Judgment.