CIVIL LIBERTIES UNDER FIRE
California Governor Vetoes Racial Profiling Bill
The ACLU affiliates in California condemned Governor Gray Davis's veto of a bill requiring law enforcement to collect data regarding the race and ethnicity of all drivers stopped by the police. The "California Traffic Stops Statistics Act," authored by Senator Kevin Murray, passed overwhelmingly in the state legislature with the support of a wide coalition of civil rights groups, the American Bar Association, the California Attorney General, and numerous minority law enforcement organizations.
"By vetoing this historic bill, Governor Davis is turning his back on California's communities of color," said Ramona Ripston, Executive Director of the ACLU of Southern California. "For decades, motorists have been stopped by police simply because of the color of their skin. This bill would have been a small, but important step, in putting an end to racist police practices throughout the state."
In his veto message, Governor Davis tried to take credit for "ordering" the California Highway Patrol to collect similar data. But in fact, the Highway Patrol had already publicly volunteered to collect this data, following similar moves by state police agencies in Florida, New Jersey, Michigan, Oregon, and elsewhere. Governor Davis' belated statement encouraging voluntary data collection by law enforcement agencies comes almost four full months after President Clinton issued the same challenge, the ACLU said.
Thirty-four California agencies have already answered the President's challenge with voluntary data collection programs, but hundreds of other California agencies--including those with some of the most severe police-community relations problems in the state--have stubbornly refused.
"Any agencies still in denial on this issue are simply not going to respond to the Governor's timid encouragement," said John Crew, Director of the ACLU of Northern California's Police Practices Project. "That is why a comprehensive statewide bill was crucial. His veto amounts to a `wink and a nod' to law enforcement that they don't have to take this issue seriously. Crew said it was "disingenuous" for Governor Davis to claim that requiring statewide data collection on traffic stops would set a "bad precedent" of the state placing mandates on local agencies.
For decades, he said, the state penal code has required local law enforcement agencies to collect and report a dizzying array of statistics on various activities. This bill would have simply added four new categories of data on traffic enforcement practices for just two years to a detailed statistical report long-published by the state on an annual basis.
"Decades ago, southern sheriffs like Bull Connor argued that local officials should be left to voluntarily address any local civil rights problems on their own," Crew said. "We are stunned that Governor Davis would be claiming--in 1999--that it sets a `bad precedent' for the state to require local agencies to even study a crucial and widespread civil rights problem."
The ACLU's California affiliates said that they would continue to take calls on their statewide hotline 1-877-DWB-STOP. (The Spanish language hotline is 1-877-PARALOS, 1-877-727-2567.) Since October 1998, more than 2,000 people have called to report their stories of race-based police traffic stops.
School Strip Search Ruling Ignores Students' Rights
While ruling that school officials and police officers violated the Constitution when they strip-searched an entire class of fifth graders, a Georgia judge today said that none of the adults involved could be held liable for their actions.The ACLU of Georgia, representing the 14 students and their families in their lawsuit, expressed disappointment in the ruling and said it is now considering an appeal of Judge Carnes' ruling. The ACLU will also seek an order from the judge barring future unconstitutional strip searches of children in the Clayton County School System.
According to the ACLU's lawsuit, a female teacher forcibly stripped some of the girls and a male officer who searched the boys partially stripped himself in search of a missing $26. "What should I tell my clients?" said Gerry Weber, Legal Director of the ACLU of Georgia. "Where is the remedy for what they have suffered? Surely someone should be held responsible."
In legal papers submitted to the court, the ACLU said that officials at the Clayton County School District and Police Department should be held responsible for the searches because the police department and school district had no policies or training regarding strip searches of children, the school district's assistant principal approved the searches, the police department and school district should not have exposed the children to an officer with a shoplifting arrest and a teacher with a recent forgery arrest, and the police department and school district ratified the searches after they occurred and took little or no action to rectify the violations of the students' rights.
In her 91-page order, United States District Court Judge Julie Carnes ruled that the strip searches were unconstitutional but refused to allow a jury to address the issue of damages. She said that the school district and police department were not responsible for the strip searches and that those who had conducted the searches could not be sued because their actions were not "clearly" unconstitutional.
"It seems a shame that in this time of concern for children, a time when we are trying to teach them compassion, non-violence, and respect for others, that our justice system is telling them that they have no remedy when their rights are violated," said Debbie Seagraves, Executive Director of the ACLU of Georgia. "What kind of lesson are we teaching them with this decision?"
Nation's First Mandatory
Welfare Drug Testing Program
Saying that Michigan's poorest families should not be treated like criminals, the American Civil Liberties Union of Michigan today filed a federal class-action lawsuit to halt the nation's first statewide drug testing requirement for welfare recipients.
"Mandatory drug testing of a broad swath of the adult population has never in our nation's history been proposed or enacted by a state government, much less approved by a court," the ACLU said in its complaint. A constitutional ban on Michigan's program could send a strong warning to other states, the ACLU said.
The ACLU filed its class-action lawsuit on behalf of all Michigan welfare recipients, including named plaintiffs Tanya L. Marchwinski and Terri J. Konieczny, both single mothers on welfare, and Westside Mothers, a 500+ member advocacy organization created for and by families in need. The national ACLU's Drug Policy Litigation Project and local attorneys are assisting in the lawsuit.
"Forcing parents to choose between providing for their children and giving up their privacy rights is a giant step backward for public policy in Michigan," said Kary Moss, Executive Director of the ACLU of Michigan and an attorney in the case. "The Fourth Amendment guarantees that no individual in this country can be subjected to a search by the government unless there is reasonable suspicion that they have committed some crime," she added. "Welfare recipients may be poor, but that's not a crime-not yet, anyway."
Refusal to submit to random drug testing or failure to comply with a mandatory "substance abuse treatment plan" means denial of income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children. (Adults without children are not eligible for welfare in Michigan.)
The mandatory urine testing program, authorized under (but not required by) Congress' punitive "welfare reform" law of 1996, ignores the less restrictive approaches of other states, including testing only when there is suspicion of drug use and voluntary programs for substance abuse and mental health problems.
"This program only hurts families," said Selma Goode, the founder of Westside Mothers. "Whether or not substance abuse drug treatment is mandatory, the fact is that Michigan has no adequate drug therapy programs for needy parents with children--and that is exactly who this law is going to affect. The state is willing to spend money on drug testing, but not on drug treatment. I think they've got their priorities mixed up."
Despite Congress' open invitation to conduct the intrusive searches, Michigan is the only state now actively seeking to implement urine testing. In Oregon, officials quickly ended a drug testing program after finding that anger over the tests impeded treatment and because the testing did nothing to address the far more significant problem of alcoholism. Florida and Louisiana have considered such programs too, but Florida shelved its plans after threat of an ACLU lawsuit, and the Louisiana legislature has not yet appropriated the funds needed to implement a program.
Michigan officials have claimed that the tests are necessary in order to prepare people on welfare for the realities of the working world. But according to a July 1999 University of Michigan study, Michigan's welfare population has "unusually high levels of some barriers to work, such as physical and mental health problems, domestic violence, and lack of transportation, but relatively low levels of other barriers, such as drug or alcohol dependence."
"The emotionally charged myth of the 'drug-addicted welfare mother' is not supported by empirical data," said Graham Boyd, director of the national ACLU's Drug Policy Litigation Project. "In fact, a recent federal study shows that the percentage of welfare recipients using, abusing, or dependent on alcohol or drugs is relatively small and is in fact consistent with the general population."
The nation's highest court has also looked askance at suspicionless testing. In two recent constitutional challenges to government drug testing of public employees, the Supreme Court ruled that only under very narrow circumstances may government employers impose a drug test without suspicion of drug use, Boyd noted.
The ACLU seeks an immediate halt to Michigan's program and asks the court to declare it unconstitutional under the Fourth Amendment's protection against unreasonable searches and seizures.
The case is "Marchwinski et al, v. Family Independence Agency, et al." Attorneys in the case are Kary Moss and Graham Boyd of the ACLU; Prof. Robert A. Sedler of Wayne State University Law School in Detroit; and David R. Getto and Cameron R. Getto of Southfield, as cooperating attorneys.
--The ACLU of Michigan's brief is available online at: <www.aclumich.org\briefs\welf930.htm >.
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