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Last updated Oct. 12, 2018, 9 p.m.

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Supreme Court Enables Mass Disenfranchisement of North Dakota’s Native Americans

A restrictive law will make it hard to vote for people who live on reservations in rural areas and don’t have street addresses.

On Tuesday, the Supreme Court chose to stand by and allow the war against voting to continue. Just a little less than a month before midterm elections that will determine control of Congress, the court decided not to block North Dakota’s restrictive voter ID law, which will make it harder for people in that state to cast their ballots.

Republicans in the state legislature insist that the law is needed to prevent voter fraud — despite there being virtually no evidence that such fraud is a problem. Instead, the real effect of their law will be to prevent voters whom they fear from going to the polls and having their say in who represents them.

The voter ID law was introduced just months after Senator Heidi Heitkamp, a Democrat, eked out a narrow upset victory in 2012, winning by less than 3,000 votes. Republican lawmakers responded by passing restrictive voter ID legislation that all but guaranteed that large numbers of Native Americans — who tend to vote Democratic — wouldn’t be able to participate in the political process. Specifically, the law requires voters to bring to the polls an ID that displays a “current residential street address” or other supplemental documentation that provides proof of such an address.

This may seem like an innocuous requirement, but in practice, it’s likely to disenfranchise thousands of Native Americans, many of whom live on reservations in rural areas and don’t have street addresses. Since the U.S. Postal Service doesn’t provide residential mail delivery in remote areas, many members of North Dakota’s Native American tribes list their mailing addresses, like P.O. boxes, on their IDs. And some also don’t have supplemental documentation, like a utility bill or bank statement, because of homelessness or poverty. Now, because the Supreme Court refused to block the law, people who show up at their polling station with a P.O. box on their ID will be turned away.

The Native American Rights Fund sued North Dakota in early 2016, arguing that the law was unconstitutional and a violation of the Voting Rights Act. A federal district judge agreed, issuing a ruling in April that blocked the ID requirement, but the Court of Appeals for the Eighth Circuit overturned that ruling in a 2-1 decision in September. The Supreme Court’s denial of the Native American Rights Fund’s emergency appeal means that the law will stand, creating a huge amount of confusion for thousands of voters whose IDs were valid for the June primaries but are no longer adequate for them to vote on Nov. 6. 

In her dissent, Justice Ruth Bader Ginsburg pointed out exactly what’s at stake for North Dakota — 70,000 residents of the state lack an ID that qualifies under the new rules. That’s nearly 20 percent of the typical turnout for a midterm election. The ruling, Ginsburg said, “may lead to voters finding out at the polling place that they cannot vote because their formerly valid ID is now insufficient.”

In an election that may wind up being decided by just a few thousand votes, the court’s decision could be deeply consequential for the country, not just those who live in North Dakota.

There’s no reason to look away from the implications of this law: One of America’s major political parties is doing everything it can to restrict access to the electoral process. This is an attack that must be confronted for what it is — a threat to democratic governance that will have the effect of taking away the most basic right of a large number of vulnerable voters of color.  

The Supreme Court has repeatedly demonstrated that it won’t safeguard our right to vote, so now it’s up to us to make sure we elect representatives who will.


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2018-10-12T21:00:00Z
Police Brutality Against Black Kansas City Man Caught on Video

Police encounters too often turn violent or deadly for people of color across the nation.

Black people in Missouri are disproportionately stopped or harassed by police. Twenty years of collected data shows Black drivers are stopped at a rate 85 percent higher than white drivers. And too many police departments across the state regularly use disproportionate force in dealing with minority individuals.

Missouri offers yet another example. Josh Bills, a Black man living in Kansas City, found himself on the receiving end of just this kind of police misconduct.   

In December 2013, walking blocks from his home, Bills was approached by five officers who surrounded him. He greeted the officers calmly. He stood with his hands down to his sides at a 45-degree angle. He did not act aggressively.

The police stopped him because of a call about a “Black man, black clothing.” Then the encounter went south — a scene emblematic of racialized policing that is all too familiar. Despite being cooperative with the officers, Officer Jordan Nelson, without warning, grabbed one of Bills’ arms and violently kicked his legs out from under him, smashing his face into the concrete.

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As Bills lay on the ground, injured and motionless, another officer knelt on his back to restrain him while they placed him under arrest. Chillingly, a few minutes after the brutal altercation, Nelson re-enacted the takedown for his fellow officers at the scene while Bills was still lying on the pavement waiting for medical attention.

And it was all caught on video.

Bills has been denied justice for the violation of his Fourth Amendment rights. So the ACLU of Missouri sued. As a Black resident of Kansas City, Bills was no stranger to racial profiling and police abuse.   

“This isn’t the first time this has happened to me — when a police officer has said, ‘Hey, you look suspicious’ for no reason other than my skin color,” Bills said. “It’s not even the first time I’ve been roughed up. It’s just the first time I’ve been able to draw attention to it. My existence shouldn’t be cause for concern.”

Bills was held in jail for two weeks without bond following the incident. He lost his job.

Bills’ physical injuries are no longer visible, but his emotions remain raw. “I’m not anti-police,” he said. “But I do think that there are some officers who hide behind their badge. And too many other officers do nothing to stop them.”

Bills lost faith in the police and understandably avoids them at all costs. “You just don’t know which ones are trustworthy,” he said. Bills’ fear of law enforcement is representative of the wider breach of trust between law enforcement and people of color nationwide.  

Four officers stood by and chose not to intervene the night Bills was brutalized. They each had the opportunity to take a stand and do their jobs by halting the abuse. Or they could have reported their fellow officer after the incident. The breach of duty extends to all the officers involved, not just Nelson.

The state is no stranger to discrimination and abuse of force in policing. Every Missouri law enforcement agency should implement anti-discrimination training, de-escalation training, and stronger and more well defined use-of-force policies, and they must hold officers accountable when they violate those policies and the law. This is the first step to building trust between police and the communities they serve.

The ACLU of Missouri is committed to making community-focused policing that respects the Fourth Amendment a priority. When we asked Bills what he hoped his experience and case would change, he said he wanted the Kansas City Police Department to be held accountable and to not treat anyone else like this again. And his call for accountability should echo across the nation. Police departments need to demonstrate a commitment to fairly protect the communities they serve, not make them targets of police misconduct.


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2018-10-12T20:45:00Z
Oops — Did Police Accidentally Reveal Unconstitutional Surveillance When They Tweeted a Screenshot?

We’re demanding Mass. state police release their browser history and bookmarks to see if they’re targeting progressive protesters for surveillance.

On September 13, dozens of natural gas explosions hit three towns north of Boston, killing one person and impacting thousands more. In the first few hectic hours after the blasts, the Massachusetts State Police official Twitter account posted a tweet reading:

Updated plotting of confirmed fires and explosions by MSP Watch Center. 39 locations confirmed thus far. Number will grow. New responses ongoing. Reminder: all residents of Lawrence/Andover/N Andover who have Columbia Gas must evacuate, as should anyone else who smells gas.

Accompanying the tweet was an image of a map on a computer screen, showing locations of “confirmed fires and explosions.” Also visible in the image of the computer screen were bookmarks in a Google Chrome web browser.

Screenshot of a tweet by MassStatePolice

Almost immediately, people on social media began to point to something disturbing about the image: The bookmarks bar on the Massachusetts State Police computer appeared to link to certain progressive organizing and activist groups in Central Massachusetts. What was meant as an innocent enough disaster response tweet had become damning evidence that law enforcement in Massachusetts continues to engage in questionable surveillance of left-leaning political organizers.

Close up of the map in the tweet by MassStatePolice

The screenshot from a tweet by the Massachusetts State Police showed bookmarks for the websites of progressive protest groups.

The groups in the browser bookmarks included Mass Action Against Police Brutality, Coalition to Organize and Mobilize Boston Against Trump (COMBAT), 413 Action, MA Activism, and Resistance Calendar.

Additionally, the bookmarks bar in the image showed links to a surveillance drone company called AeryonLive and a site about Open Source Intelligence Techniques.”

About a half hour after the first tweet was posted, it was deleted and replaced with a second image, which you can still find online. Notably, the second image does not contain the offending bookmarks bar.

The tweet was sent from the MSP Watch Center, which is located within the Commonwealth Fusion Center, one of a network of 79 “fusion centers” in the United States. These state and local police spy centers were established through funding provided by the Department of Homeland Security and the Department of Justice to promote information sharing among municipal, state, and federal law enforcement agencies after 9/11.

While fusion centers were established under the auspices of fighting terrorism, according to a bipartisan congressional report, they haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.

The Massachusetts State Police tweet provides the most recent evidence that this ugly history has extended into the present. In response, on Tuesday, the ACLU filed a public records request under the Massachusetts public records law asking for the all bookmarks and browsing histories from every computer at the Commonwealth Fusion Center.

After the state police deleted the tweet containing evidence of the MSP’s interest in these left-leaning groups, a police spokesman, David Procopio, released a statement claiming that the agency has a “responsibility to know about all large public gatherings of any type and by any group, regardless of their purpose and position, for public safety reasons…We do not collect information about – nor, frankly do we care about – any group’s beliefs or opinions.”

If that’s true, it’s odd that the bookmarks bar in the tweeted image only contained links to progressive and left-wing organizing/activist groups. The only way to confirm that the police department’s statement is true is to see the bookmarks and browsing history of its employees.

Surveillance of activist groups in Massachusetts is not new. In early 2018, the ACLU of Massachusetts released a report showing that between 2014 and 2016, the Boston Police Department used a social media surveillance system called Geofeedia to monitor individuals expressing constitutionally protected free speech on Twitter, Facebook, and YouTube. The records we disclosed revealed the police were monitoring hashtags such as “#MuslimLivesMatter” and “#BlackLivesMatter.” The cops’ social media surveillance software even caught a Thanksgiving Day Facebook post from former Boston City Councilor Tito Jackson. Back in 2015, reporting revealed that the State Police were monitoring social media accounts associated with the Black Lives Matter movement.

To fight against this anti-democratic surveillance, the ACLU of Massachusetts has long supported efforts at the Legislature to ban police from monitoring protected speech and activity. Last session, we supported the Fundamental Freedoms Act, which would have prohibited agencies like the Commonwealth Fusion Center from monitoring First Amendment-protected activities absent a showing that the target of the surveillance is likely involved in criminal activity. Specifically, the bill required that law enforcement have “reasonable grounds” to believe that someone has violated a crime before collecting intelligence information about them. 

The best disinfectant is sunlight, which is why we filed this public records request seeking more information about the types of websites visited by state police employees assigned to the fusion center. We look forward to reading their response and to more scrutiny of law enforcement surveillance.

This piece was originally posted at PrivacySOS.org.


Every day across the nation, the ACLU is called on to defend all the freedoms guaranteed in the Constitution and the Bill of Rights. There's never been a more important time to support the ACLU and our effective work to protect civil liberties. If you like what you just read, help us continue to speak freely by donating today.


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2018-10-11T22:30:00Z
Washington Supreme Court Abolishes the Death Penalty

Washington is now the 20th state to abolish capital punishment as the public continues to sour on the barbaric practice.

On Oct. 11, the Washington State Supreme Court unanimously struck down the death penalty as unconstitutional, ruling the “death penalty is invalid because it is imposed in an arbitrary and racially biased matter” and "it fails to serve any legitimate penological goal.” The death penalty is a punishment that is as flawed as it is final, and as the Washington high court acknowledges, one plagued by racial bias and arbitrariness.

The ruling came in response to an appeal in Allen Gregory’s case. Gregory argued that the entire death penalty scheme in Washington was unconstitutionally discriminatory, relying in large part on a rigorous and sophisticated statistical study by researchers at the University of Washington. The study ultimately showed that Washington juries were more than four times as likely to sentence a Black defendant to death as a non-Black defendant.     

Gregory’s case led a broad group of advocates, researchers, and criminal justice attorneys to file amicus briefs arguing Washington’s death penalty scheme was a demonstrated failure, infected by racial bias and arbitrariness. Seventy-five retired or former judges in Washington state joined the ACLU’s amicus brief asking the Washington court to strike the death penalty. They did so because they had the grim benefit of front row seats to its unjust application. 

Thursday's decision is a step toward racial justice, but nationwide the racism inherent in the procession and decisions in capital cases still too often unaddressed. In fact, the Washington Supreme Court joins just a small number of state courts, including Massachusetts and Connecticut, that have struck down the death penalty after recognizing the intolerable taint of racial discrimination. 

Racial bias is the intractable legacy of the death penalty’s history in America. Capital punishment can never free itself of the yoke of its roots in lynchings and racial terror. As the Equal Justice Initiative’s national lynching memorial viscerally demonstrates, many of the same southern and midwestern counties that tolerated and even encouraged lynchings of Black men were enthusiastic proponents of capital punishment.

But the legacy of racial violence extends beyond just any county or state border: Racial bias permeates capital punishment at every stage from the decision to charge the death penalty to execution. One acute pinch point of that discrimination is in jury selection. 

Prosecutors across the country routinely discriminate against potential Black jurors in capital cases by striking them from serving. In 2016, the U.S. Supreme Court ruled for Timothy Foster after handwritten notes from the prosecution surfaced showing its relentless efforts to strike Black jurors from his capital case. This included the prosecutor’s notes designating each Black juror with a “B” and noting the lone juror they would accept if they “had to pick a Black juror.”

This kind of discrimination in juror selection is far from limited to Foster’s case. In studies ranging from North Carolina up to Pennsylvania and back down to Louisiana, we see clear systematic discrimination against qualified Black jurors in capital cases. In North Carolina, prosecutors were trained statewide, with a handy top-10-style cheat sheet, in how to give pre-textual explanations to avoid being caught for racial discrimination. 

Decisions about who should live and who should die are too often driven by the race of the defendant or race of the victim, as studies for decades have repeatedly shown. But, as the Washington Supreme Court found, the death penalty’s problems go far beyond racial bias. It is a flawed and ineffective tool of justice, one has become itself a tool of injustice. Capital punishment does not deter crime, and it fails to protect the innocent from wrongful convictions.

These concerns have caused the public to turn from the death penalty, with support for capital punishment at a near-historic low in the modern area. Likewise, death penalty jury verdicts and executions have plummeted.  Today, Washington became the 20th state to officially reject capital punishment. Three other states have governor moratoriums, and another 10 states have not had an execution in the last decade.

The problems with the death penalty cannot be fixed.  It is time for other courts to follow Washington’s lead and strike the unconstitutional, unjust, and racially discriminatory punishment from the books once and for all. 

Every day across the nation, the ACLU is called on to defend all the freedoms guaranteed in the Constitution and the Bill of Rights. There's never been a more important time to support the ACLU and our effective work to protect civil liberties. If you like what you just read, help us continue to speak freely by donating today.


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2018-10-11T20:45:00Z
Jury Sends Wisconsin a $780,000 Bill for Denying Health Care to Two Transgender Workers

A growing number of courts are ruling that transgender public employees should have access to transition-related health care.

Shannon Andrews just helped bring comprehensive health care coverage to transgender state employees across Wisconsin. Even more reassuring, she proved that average Americans understand that discrimination against transgender people comes with a cost.

Shannon supervises a cancer research lab at the University of Wisconsin. Like other state employees, she gets health care insurance through the state. But as a transgender woman, Shannon faced state rules that specifically excluded coverage for hormone therapy and surgery relating to gender transition. Her doctors say that care is medically necessary for her. 

Being denied transition-related care can be devastating. For Shannon, it caused serious depression and even prompted thoughts of killing herself. Without insurance coverage, Shannon faced two terrible risks.  She could either drain her retirement account to pay for health care herself and risk not having the money to retire or keep her retirement savings but face the very real risk that she would not be alive for retirement. Shannon chose to pay for the care herself, but many other transgender people don’t have the savings she had.

After arranging for the care she needed, Shannon wasn’t done. She, along with fellow state employee Alina Boyden, sued the state over its exclusion, and a federal trial court recently ruled that the state’s exclusion of coverage was unlawful sex discrimination that violated federal law. Her lawsuit also prompted the board that sets health insurance policy for the state to remove the ban on transition-related health care, so state employees across Wisconsin will now be eligible for this care going forward.

Earlier this week, Shannon told her story to a jury of her peers in Madison, Wisconsin, seeking to recover both the cost of her surgery and compensation for the discrimination she suffered at the hands of the state. The jury responded by awarding Shannon $479,000 and her co-plaintiff, Alina, $301,000. 

Shannon stood up for herself and all transgender people by challenging the state’s discriminatory policy. Her courage was rewarded not only when the court recognized the illegality of the state’s policy, but also when a jury — people pulled from every walk of life in Wisconsin — heard her story and recognized the harm she suffered.

For me, it’s beyond heartening that a jury could meet two transgender women for the first time in a courtroom, understand their stories about the denial of surgery and hormone care, relate to them as fellow human beings, and award them damages like this. It’s another sign of how the country is learning more and more about transgender people, which is due to the courage of individual transgender and nonbinary people like Shannon and Alina.

Every day across the nation, the ACLU is called on to defend all the freedoms guaranteed in the Constitution and the Bill of Rights. There's never been a more important time to support the ACLU and our effective work to protect civil liberties. If you like what you just read, help us continue to speak freely by donating today.


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2018-10-11T17:30:00Z
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