News & Commentary

In late June 2011, I read a brief newspaper article about the Missouri Court of Appeals’ decision in State v. McNeely, which would have reversed a trial court ruling suppressing evidence from a blood alcohol test conducted on Tyler McNeely without consent and without a warrant.  But, because of the novelty of the constitutional issue involved, the Court of Appeals also decided to transfer the case to the Missouri Supreme Court for further review.  Because blood draws are unquestionably searches under the Fourth Amendment to the United States Constitution and because the default Fourth Amendment rule is that the government must have a search warrant before it conducts a search, I decided to ask the lawyers involved in the case for permission to submit a friend of the court brief.  The lawyers agreed, and – over the course of the next month – one of my excellent summer law clerks, Alex Barrett, then heading into his second year of law school at Boston University, and I worked hard on our brief.  In early August 2011,  I filed our friend of the court brief  with the Missouri Supreme Court on behalf of the ACLU Foundation of Kansas & Western Missouri and the ACLU of Eastern Missouri.  In our brief, we supported Mr. McNeely and argued that a DWI arrest is not such an unusual or “exigent” circumstance as to justify dispensing with the warrant requirement before conducting an invasive search that requires the piercing of a person’s veins in order to obtain evidence in the form of a blood sample.On January 25, 2012, the Missouri Supreme Court entered a thorough opinion affirming the trial court and holding – as we had argued – that a DWI arrest is not the kind of exigent circumstance that justifies a per se exception to the warrant requirement.  In other words, the court held that law enforcement must ordinarily obtain a warrant before subjecting a DWI arrestee to a blood draw for the collection of blood alcohol evidence.After the prosecutor filed a timely Petition for Certiorari, which is the way most cases get to the Supreme Court, Mr. McNeely’s lawyer, Steve Wilson, called to ask me whether the ACLU would be interested in handling the case at the Supreme Court.  Mr. Wilson indicated that he was very pleased with the friend of the court brief we had filed in the Missouri Supreme Court.  I told Mr. Wilson that the ACLU’s National Legal Director, Steven R. Shapiro, makes all of the ACLU’s decisions about cases we take on in the Supreme Court, and I promised to ask Mr. Shapiro about the McNeely case immediately.  I then contacted Mr. Shapiro’s office, and he set up a conference call involving several ACLU lawyers.  We discussed the issues involved, and Mr. Shapiro decided that the ACLU should take the case.Because the Supreme Court has almost unfettered discretion to take or leave cases brought to it on petitions for certiorari, our first order of business was to try to persuade the Supreme Court not to take the case for review.  The advantage of a certiorari denial would have been that the state court’s decision in favor of our client would have remained in place.  The National ACLU Legal Department drafted a brief opposing certiorari and filed that brief on July 25, 2012.  Nonetheless, on September 25, 2012, the Court granted the state’s petition for certiorari, thus setting us on the road to the United States Supreme Court.Although the National ACLU’s Legal Department did the lion’s share of the work on the Supreme Court brief and although we played a minor role on the ACLU’s Supreme Court team, simply being involved in that process even marginally was exciting and highly educational.   I was amazed and impressed with the thoroughness of Steve Shapiro’s approach to the briefing process.  He left no stone unturned.  For example, my office’s relatively minor assignment in the preparation process was to review over 200 law review articles dealing with warrantless blood draws and related issues.  In that effort, I received invaluable help and support from volunteer lawyer Leslee Friedman, who meticulously reviewed the law review articles I had identified and did additional searches to find those articles I had missed.  We also helped with the proof-reading process.Finally, on January 9, 2013, the day of oral argument arrived.  I travelled to Washington, DC, for the argument, and I happened to be seated next to the press gallery, just a few feet away from the bench and specifically Justice Sotomayor’s seat.  While waiting for the fun to begin, I had the chance to meet several reporters whose work I admire, including Pete Williams of NBC News, Adam Liptak of The New York Times, and Nina Tottenberg of NPR.  When the Justices entered the courtroom, the first order of business was to deal with motions for admission to the Court’s bar, and – on motion of my ACLU of Eastern Missouri counterpart, Tony Rothert – Chief Justice Roberts granted my motion for admission.    After that, the Court took up Missouri v. McNeely, and the Justices grilled first the prosecutor and the Assistant Solictor General and then Steve Shapiro during an intense hour of intellectual fencing.  Once the ordeal by fire was over, we left the courtroom, and Steve Shapiro and Steve Wilson held a news conference on the sidewalk outside the Court.In a decision issued on April 17, 2013, we won!  By an 8 to 1 margin, the Court soundly rejected the State’s argument that drunk-driving cases create a per se exigency that automatically takes all such cases out of the Fourth Amendment’s warrant requirement.  Specifically, the Court held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  The judgment of the Missouri Supreme Court is affirmed.”The entire experience of working on this case and of being an observer and minor participant in the Supreme Court process was a great honor and professional thrill for me.  

On March 28, 2013, the ACLU received a letter from an inmate at the Vernon County Jail in Nevada, Missouri, complaining about a policy banning all newspapers and other periodicals from the jail.  Because that policy is a blatant violation of the First Amendment right of prisoners to receive information, Legal Director Doug Bonney immediately called the jail and scheduled a visit with the inmate for Monday, April 1.After visiting the inmate and returning to the office that day, Legal Director Doug Bonney faxed a letter to Vernon County Sheriff Jason Mosher indicating that the jail’s ban on newspapers and other periodicals was unconstitutional and demanding that the jail drop the unconstitutional policy by Friday morning, April 5, or face a lawsuit.On April 4, the jail’s lawyer contacted Legal Director Bonney, and the jail agreed to drop the ban on inmate subscriptions.  From now on, inmates at the Vernon County Jail will be able to receive subscription materials – including newspapers and magazines – directly from publishers.

The Kansas Legislature has advanced 2 new abortion restriction measures that are now headed to Governor Brownback’s desk. The “Anti-Choice Omnibus Bill” (HB2253) includes a declaration that life begins “at fertilization,” forces doctors to give women false information regarding an abortion-breast cancer link, prohibits employees or volunteers of abortion providers from teaching sexuality education in schools, bans sex-selection abortions, and prohibits women from claiming medical expenses related to the performance of an abortion on their state income taxes. The “Let Doctors Lie” bill (SB142) protects physicians who intentionally keep important information regarding serious genetic or congenital abnormalities from patients if they believe this information will lead the patient to obtain an abortion. 

On Friday, February 22, 2013, the Kansas Supreme Court issued its opinion in Frazier v. Goudschaal, a case raising important issues for lesbian and gay parents and their children.   The Court ruled that, when a same-sex couple has children together, Kansas parentage laws apply equally to women and non-biological parents, and that courts must consider the reality of who a child’s parents are in order to protect the best interests of children.  Significantly, the Court also ruled that an agreement to co-parent and share custody is enforceable if it is in the best interests of the children.Marci Frazier and Kelly Goudschaal were in a same-sex relationship and decided to have children together through insemination. Kelly was the birth mother for their two children.  After the children were born, Marci and Kelly raised them for years as co-parents. Marci and Kelley gave the children hyphenated last names, and the two mothers signed a written agreement saying that they both intended to be parents and share custody of the children. Unfortunately, the relationship between Kelly and Marci broke down in 2008. They co-parented the children for a period of time after separation, but then Kelly cut off contact between Marci and the children.After Marci went to court to try to see the children again, a Kansas trial court granted joint custody to the two women. Kelly appealed this order and argued that Marci was not a parent and had no right to seek custody. The Kansas Supreme Court upheld the lower court’s ruling and explained that both women could be legally recognized as parents under Kansas law.With this decision, Kansas joins a number of other states in ruling that when two people bring a child into the world and raise that child as co-parents, the law should recognize that both people are the child’s parents, regardless of gender or biology. These courts have recognized that a child’s need for family stability depends on the existence of a legally protected relationship with both parents. This ruling is significant not only for same-sex parents, but also for many kinds of families where non-biological parents are raising children.The ACLU Foundation of Kansas and Western Missouri partnered with the ACLU LGBT Project and the National Center for Lesbian Rights in submitting a friend of the court brief to the Kansas Supreme Court in support of Marci Frazier.  Rose A. Saxe, Senior Staff Attorney with the ACLU LGBT Project, with the help of Cathy Sakimura of the National Center for Lesbian Rights wrote our amicus brief, and Legal Director Doug Bonney served as local counsel.

Bob Niedermeyer lives in a single family home in Brookside and is a Libertarian.  During and after the recent presidential election season, he displayed four campaign signs in support of Gary Johnson, the Libertarian Party’s presidential candidate, in his front yard but not in the public right-of-way. In early January, an enforcement officer with the City of Kansas City’s Planning Department sent Mr. Niedermeyer a ticket charging him with violating the City’s sign ordinance “in that a political sign . . . [was not] removed . . . after notice of violation having been given . . . Such signs are prohibited 2 weeks after such election.”In a letter dated January 16, 2013, ACLU of Kansas Legal Director Doug Bonney asked City Prosecutor Lowell Gard to dismiss Mr. Niedermeyer’s ticket because the City’s interpretation of the sign ordinance discriminates against political speech in violation of the First Amendment.  Mr. Gard responded by e-mail within an hour of receiving the ACLU’s letter and dismissed the ticket.  The ACLU also sent a copy of the letter to City Attorney William Geary asking that the City provide appropriate training for the City employees who are charged with enforcing the City’s sign ordinance. ACLU Letter to Lowell Gard, January 16, 2013

A new proposal limiting surveillance by drones will be debated by Missouri lawmakers, but the ACLU thinks it may not go far enough.The bill would require police to get warrants to gather evidence before sending unmanned aircraft over farmland or homes. Doug Bonney, legal director of the local chapter of the ACLU, likes the bill, but says it could be broadened because technology is leading us down a slippery slope."Governments are engaging in surveillance of people in their homes and in their yards with cameras fixed to trees or light poles and that kind of thing," says Bonney.Drones used by law enforcement have come down in price and generally courts have ruled aerial surveillance without a warrant is legal. But Bonney says he's worried that privacy is rapidly being written out of existence and he'll be watching the legislation carefully."ACLU watching legislation on surveillance in Missouri" KMBZ, January 4, 2013

The American Civil Liberties Union and the Drug Policy Alliance’s 2006 report argued that drug testing is not worth the cost.Schools risk false-positive drug tests, they say. The tests take dollars away from other prevention programs. They can undermine trust and drive away students who might otherwise have gotten help in other school programming.“Nothing prohibits it,” said Doug Bonney, the legal director for the ACLU of Kansas and Western Missouri. “But it is a colossal waste of money.”

May 17, 2012Governor Sam BrownbackCapitol, 300 SW 10th Ave., Ste. 241-STopeka, KS 66612-1590Dear Governor Brownback,I write to today on behalf of the American Civil Liberties Union (ACLU) of Kansas and Western Missouri, representing thousands of members and activists throughout the State of Kansas who seek to preserve and expand individual freedoms and civil liberties guaranteed under the United States an Kansas Constitutions. Respectfully, the ACLU asks that you veto House Substitution for Senate Bill 79 (H Sub SB 79). I have outlined our concerns with this bill below.

As 2011 comes to end, we’re taking a look back at the year in criminal justice. Over the next few days, we’ll run a series of blog posts on the developments, good and bad, that have shaped our justice system – from overincarceration and sentencing policy to the treatment of prisoners and capital punishment.Read the series here.It is said that you can tell a lot about a society by how it treats its most vulnerable members. In the United States, a good measure might be how we treat those who come in contact with our criminal justice system, for they are often the very same. In 2011, the American Civil Liberties Union made the fight against overincarceration a top organizational priority with the launch of our Safe and Fair Campaign. It was the perfect time to do so: after decades of “tough on crime” policymaking, there is now an opening to shift to being smart on crime, and to make policy based on facts and evidence, rather than emotion and politics. America’s criminal justice system should keep communities safe, treat people fairly, and use fiscal resources wisely. It should use prison as a last resort. While we are having some success in breaking our addiction to mass incarceration, we still have a long way to go.The good news: