ACLU ‘Know your rights’ event

[21 April 2017] For those unable to attend last night’s “Know your rights” session with speakers from the New Mexico chapter of the American Civil Liberties Union (ACLU), I took some notes.

The evening was sponsored by the President’s Diversity Advisory Committee, the Center for Diversity and Integrated Learning, and the Higher Education Center, all at Santa Fe Community College. It took place in a large airy room; I counted between 55 and 60 attendees, plus several people I took to be SFCC or ACLU staff. There were headsets for simultaneous interpretation in Spanish (though I don’t think there were any takers), and a team of two traded off interpreting the proceedings in American Sign Language. There were greetings from the organizers, the president of SFCC, and the mayor of Santa Fe. And there were refreshments!

Peter Simonson on ACLU and its 7-point plan

Peter Simonson, the executive director of ACLU-NM, started his remarks by talking about ACLU in general, and the New Mexico affiliate in particular: founded in 1962, proud of having established a right to same-sex marriage in New Mexico before the right was recognized nationally (some applause here); sued to challenge property-forfeiture laws that amounted to an invitation to ‘policing for profit’, and won; involved in challenges to unconstitutional police practices, including ongoing cases and/or consent decrees in Hobbs and Albuquerque. Since 2000, the NM organization has grown from four staff members to twenty-one; there is now an office in Las Cruces focusing on immigrants’ rights and immigration issues.

We are living, Simonson said, through one of the most uncertain times in the country’s recent history. Those now in power have a radical vision for remaking the country; they are championing nationalism, corporate power, and white supremacist ideology. ACLU, he said, is ready for the challenges their vision will bring; ACLU is built for challenging authoritarian governments. Last summer ACLU started taking precautions against a Trump presidency, starting with a careful analysis of his public statements and policy proposals; the resulting “Trump Memos” (available online) show that many of the ACLU’s predictions have come true and suggest other things one should be prepared to encounter in future. The analysis led ACLU to a 7-point plan to resist the new administration’s attacks on civil liberties. Much of the plan applies nationwide, but some of what Simonson described is, he said, specific to New Mexico.

(There are fuller descriptions of the seven-point plan on the ACLU web site.)

  1. Demand government transparency and accountability.

    With FOIA requests, defense of whistleblowers and journalists. Emoluments clause.

  2. Protect the rights of immigrants.

    Litigate racial profiling, defend sanctuary cities; litigate detentions, challenge policies which discriminate against Muslims. ACLU-NM has 20 volunteer attorneys in Albuquerque and others around the state trained to help Muslims caught up in an eventual registry.

  3. Defend reproductive rights.

    If Planned Parenthood is undermined and rendered incapable of providing services, then a reversal of Roe v Wade is almost academic. So defense of reproductive rights currently requires defense of Planned Parenthood.

  4. Defend First Amendment rights.

    Respond to threats against Arab, Middle Eastern, Muslim, and South Asian students (and others); educate community about protest rights; fight government surveillance.

  5. Defend LGBT rights.

    ACLU is preparing to sue the Department of Defense if it rescinds current rules allowing open service by trans people. Fight regressive legislation.

  6. Defend core civil rights from erosion.

    Identifying and challenging the worst police departments; intervene in federal consent decrees with police departments; litigate against the worst voter suppression measures.

    Jeff Sessions has said he wants to pull back from such consent decrees. ACLU is cautiously optimistic in NM; when the original Albuquerque suit took place, ACLU sued to intervene and become (or be in a position to become) a party to the suit. That intervention was denied at the time, but the judge said that if circumstances were to change, it might be appropriate for ACLU to be a party.

  7. Mobilize the American people.

    Raise $100 million of a Constitutional Defense Fund ($47m so far). But note that even this will not be enough: ACLU has a lot of attorneys, but DoJ alone has thousands, not hundreds.

    Organize card-carrying members in citizen action: protests, petitions, lobbying. Membership is up from 4000 to 12000 in NM. Over 1000 people have asked to volunteer; ACLU is are hiring staff to try to manage the resulting volunteer resources.

    People Power project. This is a bit new for ACLU, which has never been a grassroots-action kind of organization. People Power is an attempt to change that and bring a new dimension to ACLU activities. It was launched on 11 March with a webcast, and then a call to action, asking that local People Power groups approach officials in local communities and ask them to implement sanctuary-like policies which will help prevent local police from becoming surrogates of ICE.

    Further goals will be set. (Support for Planned Parenthood? not clear yet, he said). He urged attendees to join, or to form a new People Power group. We are working in NM to connect with NM volunteers. This is where we need to go at this point in American history. We have an administration devoted to the Divided States of America; we need to lead with a Freedom First vision of unity.


Q Can you report on ICE activity in Santa Fe? I’ve been told there are ICE officers dining at Tomasitas …

A We have at least one report today of someone being picked up, but we have not heard of any significant raid activity in Santa Fe, or any attempt to use Santa Fe police as helpers. Perhaps this is the lull before the storm?

John Kelly (secretary of homeland security) issued a directive in March that is essentially a schematic plan for what the president promised, including a plan to deputize local law enforcement (program 287g) and a vast exapansion of ICE and CBP. 10,000 new agents — that would mean several hundred new agents here in NM.

Q How is People Power collaborating with other movement organizations?

A Good question. We deployed PP quickly; in NM we contacted Somos un Pueblo Unido and other groups working on immigration issues, and we are trying to work with them. This has been inconsistent across the country; we’ve had some hiccups, but we’re working on it and making collaboration smoother.

Q You spoke of women’s reproductive rights and LGBT rights. How do you go about defending them in the light of Hobby Lobby decision, which seems to say that employers can deny women the right to reproductive care?

A There are a couple of issues there. In this state we have laws prohibiting discrimination in public accommodations on the basis of sex, sexual orientation, etc., even when religion is offered as the motive. I don’t want to comment on the Hobby Lobby decision because I haven’t reviewed it recently, but I don’t think it prevents our use of civil rights laws to fight discrimination.

Q Will your presentation be online? Preferably with even greater detail?

A I can point you to the seven-point plan; we had not thought about putting the rest of tonight online. Of course, a lot of immigration-related material is also online.

Q I hear the federal government is trying to prevent any money going to sanctuary cities; can anything be done?

A Yes. There are laws that we think prevent attempts to punish local governments for local policy-making. The relevant precedents include the ACA decision invalidating the law’s provision to reduce Medicaid funding for states which chose not to expand Medicaid coverage.

N.B. we have constitutional theories, but they are theories and they still need to be litigated. We can’t stop the federal government from trying to follow through on their threat. But we can fight, and we will.

Kristin Greer Love on specific rights

One of the largest concerns is that the administration appears not to care about the law; we fear that the example will infect local governments and encourage them to act unconstitutionally.

This material is available online on the national ACLU web site — search for “Know your rights“.

The administration is using hateful language against Muslims; let’s review some principles of religious freedom.

Religious freedom

You have the right to wear a headscarf: TSA, public schools, workplace, public places, and on photo IDs. TSA can ask to pat down the scarf, but you can ask that it be done by a woman, and in private. Schools and workplaces must allow headscarves. (In workplaces, there are some narrow exceptions for safety and the like.) Restaurants etc. cannot refuse service because you are wearing a headscarf.

We don’t expect many problems here, but if you experience such discrimination or see it, let us know; there is a form online. We can’t litigate it if we don’t know about it.

Ditto for workplace rights.

After 9/11, the FBI spent a LOT of time interviewing Muslims. If that or something similar happens to you or those you know, know that it is not a crime to remain silent. But providing false information is a crime. If you need an attorney, talk to us; we have people ready.

Q Can local authorities restrict wearing of turbans and headscarves by police or other public service officials?

A ACLU did litigate the case of an EMT in Espanola whose employer tried to require him to shave his beard. If there is not a clear safety or job-effectiveness reason, such a requirement is illegal and will be overturned. (In the case of the EMT, there was some fear that the beard might interfere with respirator masks and the like, but other mitigations were possible short of requiring that it be shaved.)

Q How do we protect the rights of mentally ill people and ensure they are sent to the hospital not to the jail?

A The mentally ill do have rights. [Sorry, the note-taker lost focus here and did not get most of the answer.]

Police encounters:

Enforcing one’s rights is difficult sometimes. Even if you’re a white male; more so when you’re not.

If you are stopped on the street: Stay calm, don’t run. Do not argue. Do not obstruct the police.

The key question to ask is “Am I free to leave?” If the answer is “yes”, don’t say anything more. Just leave, peacefully and quietly. If “no”, then the follow-on question to ask is “Am I under arrest?” If you are under arrest, you have the right to know why.

We encourage you to exercise your right to remain silent by saying explicitly “I am exercising my right to remain silent.” It puts everybody on the same page.

You are not required to consent to a search of your person.

Car stops: We recommend that you turn the car off. Turn the dome light on. Open the window partially. Put your hands on the wheel. If you are going to move your hands, tell them you are going to do so. “I am reaching into my pocket to get my wallet to show you my driver’s license. OK?”

And please, please, teach any young people you know these rules!

You do not need to consent to a search of your vehicle.

If the police justifiably believe you have committed a crime, they may nonetheless search the car. But it can matter a lot, in later litigation, that you did not give them permission for the search.

If the police ask about immigration status: know that you are not required to discuss this. N.B. if you are not in fact a citizen, or do not in fact have residency papers, do not claim you do.

Each visa category has slightly different rules. Discuss your case with a lawyer.

If you are 18 or over, carry immigration documents with you at all times.

If you are arrested, do not resist. Even if you believe the arrest is unfair, do not resist.

You do have the right to a local phone call. The police do not have the right to listen to your call to a lawyer (but in some county jails, there may not be any non-monitored lines).

Q What can a woman driving alone after dark do to prevent being preyed upon by impostors who are pretending to be police? Can one refuse to stop and instead drive slowly to a well lighted area before stopping?

A We can’t tell you what to do; you have to judge the situation for yourself. But if you do what you describe, you run the risk of being charged with flight or with resisting arrest. If you have a choice, you are quite right that a well lit place to stop is better than a dark place. If you don’t have a choice (if there is no well-lighted place where you can pull over), be aware that you risk criminal charges if you don’t stop. There is not an easy answer here.

This is a good example of the kind of situation in which there is a huge imbalance of power. Even consenting to a search can be a judgement call. We can recommend that you not consent to a search, but it may be better to consent to a search than to risk physical harm.  Wallet cards can be helpful in reminding you what to say.

ICE encounters

If ICE comes to your door (home or work), what do you do? Note that when ICE goes to homes it often does so in the small hours to minimize the likelihood that any observers will be around.

Know that ICE is not allowed to enter your house against your will without a warrant signed by a judge. N.B. ICE does use administrative warrants not signed by judges, which can be very confusing, as they will be waving a paper labeled “WARRANT”. Tell people that they need to look for the word “Judge” on the alleged warrant.

You have the right to remain silent. Do not lie about your status or provide false documentation.

If ICE stops your car, you do have to show license, registrations, etc.

If you have documents establishing your right to be in the country, show them. If you don’t, remain silent.

Q How does that information get to people who need it?

A El Centro, Somos un Pueblo Unido, etc., are doing Know your rights training, using a sort of train-the-trainers approach. We are happy to help train such people, too.

Q ICE is showing up at magistrate courts, etc. What are your rights there?

A You have the right not to speak.

This practice of ICE agents coming to courthouses has some bad consequences. When ICE shows up in court, some people will refuse to testify, or to show up in court at all. This means that if the only witness to a car accident is undocumented and won’t appear in court (because an ICE agent is in the public gallery), then the trial is delayed, the process grinds to a halt.

Some state courts have written to DoJ to protest that ICE presence is harmful and keeps their courts from functioning well. We are working on this.

Q There is a good YouTube video of a woman in Denver interacting with ICE in a very calm way. She asks “Are you an ICE agent?” [Perhaps this video of a lawyer asking ICE agents in the hallway of a courthouse who they are, whether they are there to make an arrest, whether they have a warrent, etc.]

Is it OK to intervene? Is it OK to tell someone they do not need to speak to ICE?

A There is not a clear line (between what is allowed and what is not). In some cases, you can be understood as intervening physically (which is not allowed). But shouting out “You are not required to talk to them” is not a crime. Don’t do it in a way that disrupts court proceedings, of course.

In ICE custody, sign nothing. ICE sometimes uses ruses, pretending to be police or telling them “sign this form, you will be able to resolve your case once you’re in Mexico”. Don’t sign.

When ICE takes people into custody, they assign them an “Alien number” or A-number. These are important to know — a way of identifying the person. We do have ICE detention in NM (Cibola), but often people are moved around and are held at some distance from the place where they live or were taken into custody; the Alien number will help locate them; there is a web form.

Q If someone feels that ICE is harassing them, whom can one call? Can you call the police?

A Don’t know. Generally we recommend being silent.

We do know of one case where ICE knocked on a citizen’s door; she began to suspect that they were not in fact ICE, left the home, and called APD. APD came out and brokered the interaction between the woman and ICE. Her calm response (and the APD intervention) helped give the story a happier ending.

Q Have the procedures for green card renewal changed?

A I can’t answer that; I don’t know. I’m not an immigration attorney. Do talk to an immigration attorney.

Q When the ICE agent or police officer is not on duty, does the situation change? (Story of harassment by an off-duty officer.)

A If they are harassing you, we need to know.

Q Some people say that when the Japanese were interned, during WWII, they made things easier by all going quietly. Should the Japanese have resisted internment? If that happens again, what?

A God forbid we should encounter that again. But if it happens, it will have to be challenged in court.

At protests

Your rights at protests and police/ICE encounters. (Photo from JFK Muslim ban protest.)

What can we do at protests? Taking photos of publicly visible things is a constitutional right.

We strongly encourage you to download the ACLU Mobile Justice app. It uploads to the ACLU site while you film, so the police cannot delete the images if they confiscate your camera (as they regularly try to do when people film police abuse or brutality).

ICE agents and police doing their job can be filmed. But do not interfere with their performance of their duties. Stay a safe distance away. Don’t break any other laws. (For example: don’t get so involved in the photography that you jaywalk!)

Police can restrict the conduct, but not the content, of protest. All forms of expression are protected in public fora: streets, sidewalks, parks, atria in government buildings. But some activities typically require permits: not staying on the sidewalk, blocking traffic, using sound amplification.

Q How many states are now trying to limit or outlaw protest?

A A number of legislatures have seen legislation to try to criminalize some of the periphery of first-amendment rights. A bill in North Dakota (?) would relieve people of criminal charges if with their car they hit a protester in the road (even if it would otherwise be a hit and run). But remember that legislatures not infrequently pass unconstitutional laws; that doesn’ t mean they will stand. Sometimes it takes time to find someone with standing to challenge the law; rarely, the law is so written that ACLU can ask for an injunction on the grounds that it cannot possibly be enforced in any constitutional way.

Q Do the police have the right to shoot into a crowd of demonstrators if they see someone wearing gang insignia?

A Certainly not. They can enter a crowd to try to arrest someone. If the person resists, they can use proportionate measures. But they cannot fire into a crowd because they see gang insignia.

Q From the time an immigration arrest happens and the time the person is deported, what rights do they have then, during that period?

A Good question. It may vary.

If there is a prior order of removal, then the deportation can happen very quickly. Otherwise, however, they do have the right to consult an immigration attorney.

Peter Simonson, concluding remarks

Kristin said, if you see X Y Z, contact us. Do! We can’t be aggressive if we don’t know of the case.

Please remember: There are many many good police and ICE officers. Sometimes there are bad apples. But in general, when there are systematic problems (as in Baltimore), it’s because of a failure or leadership.

A few years ago a woman from Moriarty was stopped in El Paso and sent to secondary searching. They found nothing, so they asked her to take off all her clothing. They found nothing. So they took her to a hospital, performed a CRT scan, and forced her to evacuate in front of officers to show she had secreted no contraband. Eventually, they sent her on her way. A few weeks later, she got a bill for the exams. (ACLU sued on her behalf and won a settlement.)

Why do things like this happen? The Border Patrol is one of the least accountable agencies in the country. They have, for example, resisted body cameras aggressively.

The Border Patrol is going to play an important role in the coming years; we need ways to ensure that they are held accountable.

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