News & Commentary

In a recent opinion piece, Kansas Secretary of State Kris Kobach defended his track record as a national proponent of anti-immigrant laws. He asserted that the anti-immigrant laws he’s authored and espoused across the country have done “remarkably well” in court. A review of these cases shows otherwise. Indeed, just last week, his record suffered a serious blow when the full Fifth Circuit Court of Appeals and a unanimous three-judge panel of the Third Circuit struck down anti-immigrant ordinances he authored in Farmer’s Branch, Texas and Hazleton, Pennsylvania. Although a divided Eighth Circuit panel recently upheld another of these ordinances in Fremont, Neb., the clear trend is away from his anti-immigrant approach.In his opinion piece, he claimed a “score” of “2 wins — 0 losses — 2 draws,” appearing essentially undefeated. Even apart from the Farmers Branch and Hazleton decisions, the anti-immigrant policies he promotes have been litigated many times, far more than the four court cases he discusses. For example, he conveniently excludes several failed lawsuits he brought challenging laws that promote immigrant integration, such as Kansas’ law allowing in-state college tuition for all Kansas high school graduates. After a federal appeals court dismissed his lawsuit here, he filed a similar one against California’s in-state tuition law, which the California Supreme Court rejected unanimously. He raises the issue year after year in the Legislature and every time, he scores a loss. This, in the Republican controlled Legislature in his home state.For the cases he doesn’t ignore, he obscures the results. For example, he calls the Supreme Court decision overturning provisions of SB 1070, Arizona’s infamous anti-immigrant law — the hallmark of his career — a “draw” even though the Court struck down three of the four sections of the law that it reviewed.Mr. Kobach would have us believe that the single provision the court allowed was the only one that mattered. In the SB 1070 case, the Supreme Court struck down warrantless arrests of undocumented individuals, the criminalization under state law of work by the undocumented and criminal punishments for immigrants who fail to carry immigration papers at all times. And, the court limited the scope of the one provision it permitted, known as “show me your papers,” making it clear that the police cannot detain individuals just to inquire about immigration status. In other words, much of the anti-immigrant law that put Arizona in the national spotlight has now been declared unconstitutional by the Supreme Court.Similarly, Mr. Kobach categorized the Eleventh Circuit Court of Appeals decision on Alabama’s HB 56 as a “draw” even though it too rebuked his fundamental approach. The court said, “We are convinced that Alabama has crafted a calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state.” This is Mr. Kobach’s underlying theory of driving the undocumented to “self-deport,” which the court determined is an unconstitutional, “thinly veiled attempt to regulate immigration”— a power held solely by the federal government.Mr. Kobach’s faulty legal reasoning has brought only harm to communities that have relied on it. Yet he repeatedly asks Kansans to trust his expert legal opinion on controversial matters, whether it’s defending the voter identification law he authored, or advocating for more restrictive laws against immigrants. Kansans deserve better. We should trust our own instincts instead, supporting common sense immigration reform and integrating immigrants through sound policy.

The ACLU of Kansas and Western Missouri is proud to launch the 4th Edition of the Kansas/Missouri LGBT Rights Handbook. The primary purpose of the handbook is simply to provide information.  Through the process of writing and updating it, we realize that, while progress is being made a great deal of work lies ahead.  The ACLU will continue participating in this crucial struggle to secure the civil rights and civil liberties of the LGBT community.4th Edition LGBT Handbook

When Lawrence Police Chief Khatib appeared before the City Commission to request approval for using grant funds to install permanent surveillance cameras along Massachusetts Street in Lawrence, the ACLU of Kansas & Western Missouri and allies were there to raise concerns about the implications for loss of privacy and civil liberties that resulted in the Commission tabling the request and directed the Chief Khatib to develop guidelines for the use of cameras before taking further action.In the following months the ACLU organized a well attended public forum on the use of surveillance cameras and mobilized members to attend a meeting called by the Police Chief to review his draft of proposed guidelines.We have now learned that Chief Khatib, responding to concerns raised at these events, has decided to not take any further steps towards installing surveillance cameras.  This issue could well come up again in the future, but for the time being the combination of community participation and a police chief open to hearing their concerns has netted a significant victory for civil liberties in Lawrence.

This summer, the ACLU of Kansas & Western Missouri is collecting and reviewing the inmate mail policies in place in Kansas’ jails.  In May, Summer Law Clerk Janet Kearney sent open records requests to the jails in Kansas’s twenty largest counties asking for copies of the jails’ mail policies, inmate handbooks, and grievance procedures.  We have now received responses from most of the jails.On June 5, 2013, the ACLU received the requested policies from the Riley County Jail in Manhattan, Kansas.  The jail’s Inmate Handbook provides, in pertinent part, that “[n]ewspapers and magazines are also not allowed in the facility and will be placed in your property.”On June 10, 2013, the ACLU received the requested policies from the Labette County Jail in Oswego, Kansas.  The Labette County Jail’s policy on “Inmate Correspondence” provides, in pertinent part, that “[n]ewspapers and or magazines are also not allowed.  No newspaper and/or magazine clippings, or computer generated graphics or e-mails will be allowed.”Banning newspapers, magazines, and other periodicals from the jail violates the First Amendment to the United States Constitution. Because that policy is a blatant violation of the First Amendment right of prisoners to receive information, Legal Director Doug Bonney immediately sent letters to Riley County Police Department Director Brad Schoen and Labette County Counselor Fred W. Johnson demanding that the jails drop the unconstitutional ban on newspapers, magazines, and other periodicals by Friday, June 14, 2013, or risk being sued by the ACLU.On June 13, 2013, the Assistant Director of the Riley County Police Department, which operates the jail, advised the ACLU that the Department has removed the language from its Inmate Handbook “that effectively banned the possession of newspapers and magazines by inmates of the Riley County Jail.” . Riley County Jail Newspaper Ban - Demand Letter

ACLU

The City of Anthony, KS, is set to host the Muddy Water Music Festival this weekend.  In the run up to approving the permits for the Festival, the City Commission got a bee in its bonnet about dirty words used by bands that perform at the Festival.  So, at the City Commission’s regular meeting on May 6, 2013, the Commissioners approved a motion that, among other things, made granting the permit for the Festival contingent on “the artists play[ing] with reserved language in regards to foul words.” By adopting that motion, the Commission established an unconstitutional condition for the grant of the permit and thus violated the First Amendment’s Speech Clause.  The Commission’s act proves the wisdom of the Supreme Court’s observation that “the risks of freewheeling censorship are formidable.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). Because of the clear unconstitutionality of the City’s action and of its ordinance purporting to outlaw “the use of profane or indecent language” where beer is sold, the ACLU today sent the a letter to the City Administrator demanding that the City repeal the unconstitutional ordinance and assure the Festival’s sponsors and the holder of the CMB license that the City will not enforce the ordinance or the unconstitutional condition set by the Commission in granting the permit for the Festival.Letter to Anthony, KS News Coverage

Doug

 

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.