Six times a year, the ACLU of San Diego & Imperial Counties publishes its most recent docket. Our current docket, dated September 2015, contains 20 open cases in which we are directly involved, and 6 in which we prepared friend-of-the-court briefs. Our most recent four dockets can be found at the end of this page.
(new developments in bold)
ADVANCING IMMIGRANTS’ RIGHTS
Angarita v. Lynch (new case) (amicus) – Soled Angarita, a transgender woman, fled sexual violence and threats in Colombia and established a life free from persecution in the United States. Ms. Angarita was eventually placed in removal proceedings, where she sought asylum and withholding of removal. She disclosed that she had been convicted of driving under the influence resulting in bodily injury. The immigration judge found her ineligible for asylum or withholding of removal on the ground that she had committed a “particularly serious crime.” The “particularly serious crime” determination is a total bar to asylum and withholding of removal, regardless of how overwhelming the equities that favor a non-citizen remaining in the United States. Theoretically, the INA reserves such severe consequences for those criminal offenses that make non-citizens so dangerous to the community that the government is not willing to allow them to remain in the United States, notwithstanding the persecution they may face at home. If left intact, the immigration judge’s determination that Ms. Angarita committed a “particularly serious crime” would significantly expand an exception that was intended to capture only a small subset of crimes. With the other California affiliates, we participated in an amicus brief drafted by Akin Gump in support of Ms. Angarita’s request that the Ninth Circuit review the immigration judge’s decision. The amicus brief argues that consequences as severe as ineligibility for asylum or withholding should not be imposed on the basis of a conviction that does not require malice or intent.
ACLU v. Department of Homeland Security (direct) (roving patrols FOIA) – The incidence of civil rights violations associated with Border Patrol’s interior enforcement operations, which include interior checkpoints and “roving patrol” stops, is a matter of pressing public concern. There is little publicly available information regarding the extent or impact of Border Patrol’s roving patrol operations or its agents’ respect for constitutional and regulatory limitations on their authority. In Southern California, Border Patrol agents operate in a number of metropolitan and rural areas a considerable distance from the U.S.-Mexico border. In July 2014, the ACLU of San Diego’s Border Litigation Project, along with the ACLU of Southern California and UCI Law’s Immigrants’ Rights Clinic, submitted a Freedom of Information Act request to both DHS and CBP seeking records related to “roving patrol” operations in the San Diego and El Centro Sectors. When the agencies failed to respond as required, we filed a lawsuit in the Central District of California in February 2015. After setting an initial schedule on June 23, 2015, the court issued an updated order on September 2, 2015, establishing deadlines for the completion of document disclosure in September 2015 and summary judgment motions in November 2015.
ACLU of Arizona & ACLU of San Diego & Imperial Counties v. Department of Homeland Security (direct) (reports of child abuse FOIA) – For years, advocates have documented persistent allegations of child abuse by Department of Homeland Security officials, in particular Border Patrol agents holding children in their custody. In June 2014, at the height of a surge of unaccompanied migrant children entering the United States, the ACLU filed an administrative complaint with DHS documenting 116 allegations of child abuse. Although high-ranking officials initially conceded that there were problems that needed investigation, DHS subsequently shut down all investigations. In December 2014, the ACLU Border Litigation Project filed a Freedom of Information Act request with DHS, seeking any and all records pertaining to allegations of child abuse or other mistreatment. The agency failed to timely respond to the FOIA request. With Cooley LLP and the ACLU of Arizona, we filed a federal lawsuit in the District of Arizona to compel DHS to search for and turn over those documents. Over the past few months, we have received a number of partial productions of responsive records, but thousands of pages remain unreleased. As directed by the court, the parties are preparing a status report with a proposed litigation schedule, to be filed by September 28, 2015.
ACLU of San Diego & Imperial Counties v. Department of Homeland Security (direct) (expedited removals FOIA) – The manner in which the government deports individuals has changed dramatically over the past two decades. Many individuals are now expelled without seeing a judge, speaking with an attorney, or knowing how or why they were removed. Expedited removal raises concerns not only because of the lack of judicial oversight, but also because of the potentially enormous consequences to individuals. In February 2014, we submitted two Freedom of Information Act requests to U.S. Customs and Border Protection (CBP), a component of the Department of Homeland Security. One request sought records demonstrating (1) the number of individuals deported through “expedited removal” and “voluntary return”; (2) the number of individuals CBP has referred for prosecution on charges of asylum fraud, illegal entry, and illegal reentry; and (3) the number of individuals CBP has referred to an asylum officer for a credible fear interview. The other sought legal memoranda, policies, and guidelines for CBP staff regarding expedited removal and voluntary return. CBP failed to respond to the request, forcing us to file suit on August 22, 2014, to compel disclosure of the documents we seek. After we were unable to obtain agreement on a schedule for the case, we filed a motion to compel CBP to disclose documents or explain why it is not doing so. On July 20, 2015, the court ordered CBP to produce non-exempt documents and provide an index justifying its refusal to produce other documents by September 1, 2015.
Southwest Key Programs v. City of Escondido (direct) – Since 2011, hundreds of thousands of unaccompanied children have entered the United States from Mexico and Central America. Most come from Guatemala, El Salvador, and Honduras, seeking refuge from violence and persecution. The Office of Refugee Resettlement (ORR), a component of the Department of Health and Human Services, is responsible for the care of unaccompanied children while their immigration cases are pending. ORR places children with contractors such as Southwest Key Programs, which provide housing and services under licensing and oversight by state child care agencies until children can be placed with a parent or close relative. Southwest Key already operates immigrant youth housing in Lemon Grove and El Cajon and received federal approval to expand its operations in San Diego County. It found suitable locations in Escondido. After the City denied permission to convert certain motels into housing for unaccompanied children, Southwest Key applied for a permit to convert a former skilled nursing facility. Despite undisputed evidence that Southwest Key would bring millions of dollars and over 100 jobs into the local economy without adverse impact on the community, it ran into a firestorm of opposition based on xenophobia, hostility, and bias. As a result, the Planning Commission and City Council denied the permit. On May 18, 2015, joined by Brancart & Brancart, Cooley LLP, and Lawyers’ Committee for Civil Rights Under Law, we filed a federal lawsuit charging Escondido with violating federal and state fair housing laws and the federal constitution. After the court held an early neutral evaluation on July 10, 2015 and a case management conference on August 12, 2015, the case is now proceeding into discovery.
Rodriguez v. Swartz (direct) – In October 2012, Border Patrol agent Lonnie Swartz shot and killed J.A., a minor, while he was walking peacefully down a street, unarmed, in Nogales, Mexico, just across the border from the United States. On July 29, 2014, the ACLU Border Litigation Project and the ACLU Immigrants’ Rights Project, along with Morrison & Foerster LLP, Parra Law Offices, and Roberto Montiel Law Offices, filed suit in federal court to challenge the shooting on behalf of J.A.’s mother, Araceli Rodriguez, both on her own behalf and as personal representative of J.A.’s estate. Swartz moved to dismiss the case on the ground that the Constitution does not apply to his actions. On July 9, 2015, the district court issued an order rejecting that contention. Swartz filed an immediate appeal on that issue with the Ninth Circuit, which puts the case on hold in the trial court. Our appellate brief is due in late November 2015.
Olivas v. Whitford (direct) – On June 12, 2014, we filed a habeas corpus petition and complaint for injunctive and declaratory relief in federal court challenging the Kafkaesque exile of U.S. citizen Oscar Olivas, who has been barred from returning to the United States for almost three years. As a result, Mr. Olivas remains in Mexico where he cannot work to support his family and where his young U.S. citizen daughter does not receive the special education she requires. The petition states that federal officers coerced Mr. Olivas’s mother into signing a false confession that he had been born in Mexico and details his fruitless efforts to obtain a fair hearing proving his citizenship so that he can bring his family back to the United States. The parties have completed an initial round of discovery, and the case is now set for a bench trial on November 10, 2015 to determine whether Mr. Olivas shall be allowed to return to the United States.
United States v. Salazar-Garcia (amicus) – In a federal criminal case pending in San Diego, the court authorized release on bond for Alejandro Salazar-Garcia. U.S. Immigration and Customs Enforcement immediately took custody of Mr. Salazar-Garcia, and four months later, announced that it intended to remove him to Mexico, prompting the U.S. Attorney’s Office to move to revoke his bond. The district court then revoked bond and ordered him remanded to criminal custody, based solely on the allegedly imminent risk of his removal. Together with the national ACLU Immigrants’ Rights Project, the National Immigration Project of the National Lawyers’ Guild, and the UCLA School of Law Criminal Defense Clinic, we joined an amicus brief urging the Ninth Circuit to hold that federal law does not allow denial or revocation of bail based on the potential removal of an individual who is otherwise eligible for bail and federal regulations provide means for ensuring that a noncitizen defendant is not removed from the country while a criminal case is pending.
Lopez-Venegas v. Johnson (direct) – On June 4, 2013, together with the ACLU of Southern California, the ACLU Immigrants’ Rights Project, and Cooley LLP, we filed suit claiming that Border Patrol agents and Immigration and Customs Enforcement officers routinely use misinformation, deception, and coercion to convince Mexican nationals to sign their own expulsion orders under guise of “voluntary return.” Officers pressured hundreds, if not thousands, of Mexican nationals with deep roots in the United States into forfeiting their right to a fair hearing and a chance to live here lawfully. We represent individuals who have close family members in the United States and could have obtained relief against removal, but immigration officers misled them about the severe consequences of “voluntary return,” such as prolonged bars against re-entering the United States, and pressured them to sign their own expulsion documents. We also represent organizational plaintiffs—the Coalition for Humane Immigrant Rights of Los Angeles, the Pomona Economic Opportunity Center, and the San Bernardino Community Service Center—all of which have diverted scarce resources to combat these practices. After motions, discovery, and negotiations, the parties executed a comprehensive settlement, including a landmark agreement to allow a class of qualified individuals to return to the United States. The agreement also requires the government to undertake significant reforms to the way it implements voluntary return. On February 25, 2015, the court approved the settlement, triggering a 120-day notice period, followed by a 180-day period to submit applications for return to the United States. The application period opened on June 27, 2015, and on August 26, 2015 the first group of approved class members returned to the United States. We expect more class members to be approved for return. As to reforms in agency practices, we submitted a notice of noncompliance on July 10, 2015, detailing multiple violations of the agreement. We are scheduled for a mediation session with the magistrate judge on September 9, 2015 to address these issues.
Franco-Gonzalez v. Holder (direct) – An estimated 15 percent of all immigration detainees have a mental disability. Yet unlike the criminal justice system, the immigration system has no standard procedures to resolve cases against detainees with mental disabilities who are incompetent to follow the proceedings against them or unable to represent themselves effectively. As a result, detainees with severe mental disabilities often languished in detention for years. We joined with the ACLU’s Southern California and Arizona affiliates, ACLU Immigrants’ Rights Project, Public Counsel, Mental Health Advocacy Services, Northwest Immigrant Rights Project, and Sullivan & Cromwell LLP to pursue a class action on this issue. We prevailed on key issues including class certification and preliminary injunctions, culminating in partial summary judgment ordering the government to appoint “Qualified Representatives” for class members who are incompetent to represent themselves (or to stop trying to deport such persons) and to provide a fair hearing where the government must prove that further detention is warranted for any class member who has been detained for more than six months. The court appointed a special master to assist in compliance with the court’s ruling and implementing a system to determine competency in immigration proceedings. After considering the special master’s report, the parties’ responses, as well as our motions concerning monitoring, reopening of immigration cases for class members who were unlawfully removed from the country, and the appointment of Qualified Representatives, the court issued an order on June 4, 2014 resolving many remaining issues, including the definition of pro se competency, and ordered the parties to work on a final implementation plan. After further briefing, the court issued an order implementing its injunction on October 29, 2014. The order requires the government to conduct mental health screenings of detainees, provide information regarding detainees’ mental health to immigration judges, and establish a specified system for inquiring into and evaluating the competency of detainees to represent themselves. On March 2, 2015, the court issued an order appointing a special monitor for 25 months to ensure the government’s compliance. The court will hold a hearing on September 25, 2015 to decide whether to approve a settlement reached by the parties on remaining issues.
People v. Macabeo (amicus) – This case involves a search and seizure question impacting millions of people: whether the police can search an individual “incident to arrest” before any arrest in fact occurs, when police have no intention of imminently arresting the individual, simply because an arrest is hypothetically possible. The California Court of Appeal held that police were authorized to search a bicyclist detained for a traffic infraction merely because that infraction created probable cause to arrest the bicyclist, even though the police had not in fact arrested the bicyclist or intended to arrest him until they discovered evidence of another crime during the search. If left standing, the Court of Appeal decision would untether the “search incident to arrest” rule from its justifications and allow warrantless searches of virtually anyone stopped for a traffic infraction regardless of whether an arrest in fact occurred or would have been imminent. On November 4, 2014, the California ACLU affiliates submitted a letter to the California Supreme Court as amicus curiae urging the court to grant review. The court granted review on November 25, 2014. We filed an amicus brief on the merits May 4, 2015. The court has not yet scheduled argument in the case.
Rights of the Accused
People v. Anthony (amicus) – Obie Anthony spent 17 years in prison for a murder he did not commit. In October 2011, a judge granted his petition for release after the Northern California Innocence Project presented evidence that a key witness against him at trial had lied to the jury. In 2013, California adopted legislation supported by the ACLU that made it easier for exonerees such as Mr. Anthony to obtain compensation for wrongful imprisonment. When Mr. Anthony sought compensation, the state argued the 2013 law does not apply to him because it was adopted after his release. After the trial court disagreed and awarded compensation, the state appealed. We joined the other California affiliates and Cooley LLP to file an amicus brief in the Court of Appeal arguing (1) application of the 2013 law is not retroactive, but instead the prospective application of procedures to current cases; and (2) even if it is retroactive, it is permissible because the Legislature clearly intended the 2013 law to apply to any compensation request that occurred after the law’s passage, regardless of release date. After argument on April 9, 2015, the court dismissed the government’s appeal on April 27, 2015, because the trial court’s decision was not appealable. The California Supreme Court denied review of that decision on July 22, 2015. The case is now closed.
Armstrong v. Board of Supervisors (direct) – In violation of constitutional, statutory and administrative requirements, San Diego County jails were severely overcrowded. Even though a consent decree setting population caps for each facility was adopted in 1988, the County’s only jail for women was still severely overcrowded in 1993, at which point the ACLU initiated contempt hearings. The Fourth District Court of Appeal affirmed the part of the lower court’s decision holding the Sheriff in contempt, and the contempt finding and the attendant fines continued until 1997, when the order was lifted due to an acceptable stabilization in the prison population. After realignment shifted responsibility for many prisoners from the state to counties, we are watching the County to make sure it remains in compliance with the consent decree.
In the Matter of Overcrowding of Detainees at San Diego County Juvenile Hall (direct) – Immediately after court oversight of conditions at Juvenile Hall ended in 1996, the population at the facility increased to the point that there were eighty more children than beds. In mid-1998, the ACLU contacted the San Diego County Counsel’s office to resolve the crisis without resorting to new litigation. After meeting with the ACLU in September 1998, the presiding judge of the juvenile court limited the number of detainees at Juvenile Hall, which has yet to exceed that limit. The ACLU continues to monitor compliance.
In re Alejandro N. (amicus) – In November 2014, California voters approved Proposition 47, which reclassified certain drug possession and theft offenses from felonies to misdemeanors. It also allows individuals previously convicted of eligible felonies to ask the court to reclassify their convictions as misdemeanors, which would avoid the stigma and consequences of a felony record. Although the juvenile justice system is intended to be primarily rehabilitative, the San Diego County District Attorney takes the position that juvenile offenses do not qualify for reclassification under Proposition 47 because juveniles technically receive “adjudications” and “dispositions” rather than “convictions” and “sentences.” After the juvenile court accepted this pedantic argument, the San Diego Public Defender sought a writ of mandate in the Court of Appeal to enforce the intent of Proposition 47. Together with the other California affiliates, the Stanford Three Strikes Project, and Californians for Safety and Justice, which authored Prop 47, we participated in an amicus brief written by Keker & Van Nest in support of the Public Defender’s position, arguing that the new statute should be construed properly to avoid the equal protection violation that would result from treating juveniles differently from adults in this context. On July 23, 2015, the court held that juvenile adjudications must be treated the same as adult convictions for purposes of Prop 47. The District Attorney filed a petition for review with the California Supreme Court on September 2, 2015.
Department of Motor Vehicles (direct) – The California Department of Motor Vehicles (DMV) is violating the National Voter Registration Act (NVRA) by failing to offer California drivers and identification card holders the opportunity to register to vote. On February 5, 2015, the ACLU of California Voting Rights Project, joined by co-counsel at Demos, Project Vote, and the law firm of Morrison & Foerster, sent a pre-litigation notice of noncompliance to the California Secretary of State on behalf of our clients the League of Women Voters of California, the Association of Californians for Community Empowerment, California Common Cause, the National Council of La Raza, and three individuals deprived of voter registration opportunities. Secretary of State Alex Padilla has identified improving NVRA compliance at DMV as a top priority and we are currently engaged in ongoing negotiations with Secretary Padilla, DMV, the Secretary of Transportation, and the Governor’s office regarding DMV’s compliance.
Covered California (direct) – On March 5, 2014, the ACLU of California, the ACLU National Voting Rights Project, Demos, and Project Vote sent the California Secretary of State and Covered California, the state’s health benefit exchange, a formal notice of non-compliance with the National Voter Registration Act (NVRA). The notice was sent on behalf of the League of Women Voters of California, Young Invincibles, and four individual plaintiffs who had applied for health care coverage through Covered California and were not offered voter registration services. On March 20, 2014, the plaintiffs, the Secretary of State, and Covered California Executive Director Peter Lee signed a settlement agreement under which plaintiffs agreed not to file suit long as Covered California (a) mails a letter and voter registration card to every household that submitted an application for healthcare coverage through Covered California between October 1, 2013, and April 15, 2014; and (b) incorporates voter registration and training into all of its application processes. Covered California has mailed letters in multiple languages, with voter registration cards, to more than 2.6 million households and more than 5 million applicants. We continue to monitor compliance with the settlement.
Scott v. Bowen (direct) – All adult Californians have a constitutional right to vote unless “imprisoned or on parole for conviction of a felony” or mentally incompetent. The previous California Secretary of State expanded this exclusion to include people who are neither imprisoned nor on parole but are on new forms of community supervision created by California’s 2011 Criminal Justice Realignment Act. As a result, more than 58,000 Californians have been wrongfully disenfranchised. The Legislature created these new categories of criminal-justice supervision—“mandatory supervision” and “post-release community supervision” (“PRCS”)—as innovative community-based alternatives to parole for persons recently incarcerated for low-level, non-serious felonies; people on these forms of supervision are not on parole, which is now reserved for people convicted of more serious crimes. Because people on PRCS and mandatory supervision are not on parole, they have a constitutional right to vote. On February 2, 2014, the ACLU of Northern California, along with the ACLU of San Diego and Imperial Counties, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Services for Prisoners with Children, and Robert Rubin filed a lawsuit to ensure these Californians can exercise their right to vote. Plaintiffs include three individuals and two organizations, All of Us Or None and the League of Women Voters of California. The trial court issued a decision in our favor on May 7, 2014, holding that the state illegally stripped tens of thousands of people of their right to vote. That decision was initially appealed, but on August 4, 2015, the current Secretary of State, Alex Padilla, withdrew the appeal, restoring voting rights to thousands of Californians. The case is now closed.
DEFENDING CIVIL LIBERTIES
Jewish War Veterans of the United States of America, Inc. v. Rumsfeld (direct) – This case is the latest chapter in the ongoing challenge to the cross atop Mount Soledad. In an attempt to help the City of San Diego evade a series of unfavorable decisions that public ownership of the Mt. Soledad cross violated the California Constitution, the United States took title to the cross and its surrounding property through eminent domain in 2006. In response, the ACLU filed suit in federal court, arguing that the Establishment Clause of the First Amendment prohibits the government from sponsoring the cross on public land. In January 2011, the Ninth Circuit Court of Appeals found that “the Memorial,” including the cross, “presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.” On remand, the district court allowed the Mount Soledad Memorial Association (MSMA) to intervene, and on December 12, 2013, the court enjoined the government from displaying the cross and ordered that it be removed within 90 days. The court stayed its order pending resolution of any appeal. Both the government and MSMA appealed, and MSMA unsuccessfully attempted to convince the Supreme Court to hear the case before a final decision in the Ninth Circuit. After we filed our brief on December 15, 2014, the President signed the National Defense Authorization Act for Fiscal Year 2015 (NDAA), one section of which requires the Secretary of Defense to convey the Memorial to MSMA upon payment of appropriate compensation as determined by the Secretary. The Ninth Circuit stayed the appeal in light of the NDAA. On July 17, 2015, the Department of Defense transferred title for the half-acre plot of land beneath the cross to MSMA for $1.4 million. The appeal remains on hold in light of this development.
Freedom of Expression and Information
United States v. Chaker (new case) (amicus) – Darren Chaker was convicted of bankruptcy fraud and placed on supervised release, the federal equivalent of parole. As a condition of his release, he was prohibited from “defaming a person’s character on the internet.” While under supervision, he wrote that an investigator with the Nevada Office of the Attorney General had previously been “forced out” of the Las Vegas Police Department. True or false, that statement is political speech about a public official subject to the highest level of First Amendment protection. However, the district court found that he violated the condition against defamation, revoked his release, and added a new condition that he may not “disparage” anyone online. Represented by the federal defender, Mr. Chaker appealed to the Ninth Circuit. Joined by the Cato Institute, Electronic Frontier Foundation, First Amendment Coalition, and Marion B. Brechner First Amendment Project of the University of Florida, and co-counseling with the Wilmer Hale law firm, we filed an amicus brief arguing that the district court committed multiple First Amendment violations. The condition against disparagement is unconstitutional because it threatens speech of public concern for no legitimate reason related to deterrence and rehabilitation, not least because it is excessively vague. Both the original condition against defamation and the new condition against disparagement are void on their face because they unconstitutionally discriminate based on viewpoint. Even assuming the condition against defamation is valid, the district did not require the stringent proof constitutionally necessary to show defamation of a public official.
Stern v. City of Encinitas (direct) – The city of Encinitas stringently restricts the right to post temporary yard signs in residential areas, prohibiting more than two signs except during the 30 days immediately prior to an election. This restriction substantially burdens the right to freedom of speech in what the Supreme Court has recognized is an “important and distinct medium of expression.” The right to comment on candidates or issues transcends the immediate run-up to an election, and campaigns depend heavily on building support through yard signs long before elections. The restriction is not justified by legitimate interests in traffic safety and aesthetics, given that the city has readily available alternatives to protect those interests. For example, the city can—and does—regulate the size and placement of such signs. In addition, the city is discriminating, intentionally or not, against residents of limited means by severely curtailing the right to use a cheap, convenient, and effective means of communication. Representing an Encinitas resident, Peter Stern, we sent a letter to the city requesting that it amend the sign ordinance to comply with the First Amendment. After we were unable to settle the case without litigation, we filed suit on July 30, 2015. The city has answered the complaint, and we expect to seek a preliminary injunction against the two-sign cap in the near future.
Jacobson v. Department of Homeland Security (direct) – As part of the federal government’s ongoing militarization of the U.S.-Mexico border region, the Border Patrol runs an aggressive program of checkpoints on freeways and rural roads throughout the Southwest. In the rural community of Arivaca, Arizona, community members launched a checkpoint monitoring campaign to observe, photograph, and video record the actions of Border Patrol agents at a nearby checkpoint. The campaign arises from longstanding concerns about harassment and civil rights violations committed by Border Patrol agents at the checkpoint. Border Patrol responded by harassing and retaliating against the residents and forcing them to observe from such a large distance that they cannot effectively monitor checkpoint operations. As part of our Border Litigation Project, together with the ACLU of Arizona and the law firm of Covington & Burling LLP, we filed suit in Arizona federal court on November 20, 2014 to hold Border Patrol accountable for violating the First Amendment. On December 23, 2014, we asked the court to issue a preliminary injunction against further First Amendment violations while the case is pending. The motion for preliminary injunction was argued in Tucson on April 21, 2015, and we are waiting for a decision.
Gill v. U.S. Department of Justice (direct) – On July 10, 2014, the ACLU of California, along with Bingham McCutchen LLP and Asian Americans Advancing Justice – Asian Law Caucus, filed a complaint for declaratory and injunctive relief in federal court alleging that the federal government’s “suspicious activity reporting” program targets constitutionally protected conduct and encourages racial and religious profiling. Plaintiffs are five United States citizens – two photographers, one white man who is a devout Muslim, and two men of Middle Eastern and South Asian descent. Each plaintiff engaged in innocuous and lawful activity, some of which was protected by the First Amendment, yet all were reported as having engaged in “suspicious activities.” As a consequence, reports about them were entered into counterterrorism databases, and they were subjected to unwelcome and unwarranted law enforcement scrutiny and interrogation. On January 8, 2015, the court held a hearing on the government’s motion to dismiss the case for lack of standing, failure to state a claim, and improper venue. By order issued February 20, 2015, the court denied the government’s motion in its entirety. The parties continue to meet and confer on discovery and future litigation timelines. A status conference is scheduled for September 2015.
City of San Jose v. Superior Court (amicus) – For several years, California courts have been grappling with the question whether electronic communications relating to official business are covered by the California Public Records Act (CPRA) when they are sent or received on non-official devices or accounts. To allow governments to circumvent CPRA obligations simply by routing official business through non-official devices or accounts would gut public disclosure law by curtailing if not eliminating disclosure of informal emails and other communications that provide critical insights into governmental operations beyond the often sanitized contents of formal reports. Yet that is exactly what the Sixth District Court of Appeal did in holding that such communications are not “public records” as defined in the CPRA. Together with Electronic Frontier Foundation, the California ACLU affiliates submitted an amicus curiae letter to the California Supreme Court on May 23, 2014, in support of granting review of that decision. By order dated June 25, 2014, the California Supreme Court granted review and depublished the Court of Appeal’s decision. The case will now proceed to eventual briefing and decision, and we expect to submit an amicus curiae brief in support of reversing the Court of Appeal.
Askins v. Department of Homeland Security (direct) – This case is about protecting the fundamental First Amendment right to hold government accountable at the border. Ray Askins is an activist concerned about environmental issues at the border. While standing on a public street in Calexico, he took photographs of the port of entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a human rights activist who photographed male Customs and Border Protection (CBP) agents frisking female travelers as they were preparing to leave the United States. In both cases, border enforcement agents detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. Together with Morrison & Foerster, we filed suit on October 24, 2012, arguing CBP violated the First and Fourth Amendments. On April 12, 2013, the court issued an order denying our motion for preliminary injunction. On September 30, 2013, the court granted in part and denied in part the government’s motion to dismiss, holding that CBP’s policy against photography on port of entry property did not violate the First Amendment on the facts presented but giving us permission to amend the complaint to state additional facts relevant to the First Amendment issue. The government moved to clarify or reconsider the court’s order. On April 17, 2014, the court denied reconsideration of its decision allowing us to amend but ordered further briefing on the question whether plaintiffs committed a violation of any federal statute or regulation that would justify their detentions. By order issued January 29, 2015, the court found that applicable regulations justified plaintiffs’ detentions. We are considering whether and how we can amend the complaint in response to the court’s orders.
Community Coalition of South Los Angeles v. Los Angeles Unified School District (direct) – The Local Control Funding Formula (LCFF), enacted on July 1, 2013, is California’s new education finance system. It is expected to increase state education funding by $18 billion over the course of eight years and is intended to direct a greater portion of the state’s education funding to high-need students than the former system. ACLU supported the reform and has been actively involved in shaping the regulations adopted by the State Board of Education (SBE) to implement LCFF. The mechanism for distributing funding to districts was overhauled, replacing “categorical programs” that restricted use of certain funds to specified uses and establishing a single per-pupil funding formula for every district instead of the former mosaic of different formulas used to derive different “revenue limit” apportionments for each district. The new formula includes a “supplemental grant” (20 percent over the base amount) for high-need students who are English learners, low-income students, or foster youth, plus a “concentration grant” for each such student when the overall percentage of their enrollment in the district equals or exceeds 55 percent. Each district must adopt a Local Control Accountability Plan (LCAP) specifying how LCFF funds will be used. This test case, filed July 1, 2015 by ACLU of Southern California and joined by the other California affiliates, challenges the LCAP adopted by Los Angeles Unified School District because its method of calculation diverts funds from “supplemental” and “concentration” grants designated for high-need students to “base” funding that can be used for any purpose. If allowed to stand, the Los Angeles LCAP would become a model for how other districts could divert funds from high-need students.
D.J. v. State of California (direct) – One of every four public school students in California is an English learner. The California Constitution and numerous federal and state laws mandate the delivery of effective English language instruction to English Learner students. Each year, the state distributes state Economic Impact Aid and federal Title III funds for English Learner services to districts that report they are not providing the language instructional services required by law to all eligible students. The state has taken hundreds of millions of dollars from the federal government and represents that, in fact, every eligible student receives English Learner services. However, a review of the facts, including districts’ own public reporting, showed that thousands of children were not receiving any services. This affiliate joined with ACLU of Southern California, Asian Pacific American Legal Center (now Asian Americans Advancing Justice), and Latham & Watkins LLP to file suit seeking to compel the state to ensure that all districts provide appropriate services to all English learner students. After a trial, the court entered judgment in our favor September 16, 2014, ordering the state to demonstrate how it will ensure districts provide appropriate services to English Learner students, with a report due in June 2015 to evaluate the effectiveness of the state’s response. On November 15, 2014, the state appealed the court’s ruling. The state’s opening brief is currently due September 25, 2015.
Williams v. State of California (direct) – The ACLU, as part of a large coalition of civil rights groups, sued the State of California in 2000 alleging that California was negligent in assuring equal access to public education, as public schools serving the poor children and children of color were lacking in basic resources. On August 13, 2004, a settlement was reached with the state, approved by the Court on March 23, 2005, that required all California public schools to be clean and functional, and all public school students to have qualified teachers and instructional materials. This affiliate is currently working on implementing the settlement in our territory.
Miller v. Dignity Health (new case) (direct) – Rachel Miller lives in Redding, California. She is scheduled to deliver her second child by Caesarean section at Mercy Medical Center, owned and operated by Dignity Health, a Catholic-affiliated network of hospitals. Ms. Miller and her husband do not want more children, and her obstetrician therefore recommended that she undergo a common sterilization procedure, known as tubal ligation, immediately following her C-section, which is the optimal time to perform the procedure. The procedure is covered by Ms. Miller’s insurance. However, the hospital refused to allow the procedure for religious reasons. Ms. Miller does not have reasonable alternatives to Mercy Medical for her delivery. Although there are three hospitals in Redding, only Mercy Medical has a labor and delivery ward. Outside of Redding, the only other hospitals in a 70-mile radius with labor and delivery wards are also Catholic. With the national ACLU, the California ACLU affiliates sent a demand letter to Dignity Health on behalf of Ms. Miller, explaining that a corporation may not refuse to allow doctors to perform a medically indicated procedure in these circumstances, and to refuse the procedure violates anti-discrimination statutes. After receiving the letter, the hospital agreed to allow Ms. Miller to obtain the tubal ligation, making litigation unnecessary in this case, which is now closed, though the ACLU continues to monitor the issue of religious refusals to provide appropriate medical care.
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The ACLU of San Diego & Imperial Counties fights for individual rights and fundamental freedoms for all through education, litigation, & policy advocacy.