State Attorney General Refuses to Investigate NYPD Surveillance of Muslims in PA

In August 2011, the Associated Press (AP) began publishing a series of investigative reports about an intelligence-gathering program by the New York Police Department (NYPD) that specifically targeted American Muslims. The AP reported that the NYPD had monitored about 250 mosques, universities and businesses, without any evidence of wrongdoing.  In February 2012, the AP reported that the NYPD was monitoring Muslim college students at over a dozen universities far beyond the New York city and state limits, including at the University of Pennsylvania.  In light of these disturbing reports, the ACLU-PA and Muslim Advocates, in coalition with 20 civil rights, student, faith-based, and civic groups, sent a letter to Pennsylvania Attorney General Linda Kelly requesting that her office undertake an immediate investigation of the NYPD’s surveillance of law-abiding Muslim communities in Pennsylvania. 

The Attorney General refused our request.  In a letter to the ACLU-PA, the Office’s Civil Rights Enforcement Section claimed that it lacked any legal authority to investigate the NYPD’s disturbing and discriminatory actions and that there was no “evidence” the NYPD breached anyone’s civil or constitutional rights in the commonwealth.  The Office later confirmed that its decision is not appealable.

The Office’s disavowal of any authorization to investigate NYPD’s practices in Pennsylvania is not only deplorable but inconsistent with its own mandate.  The Attorney General’s own website states that the Civil Rights Enforcement Section is authorized to issue reports and publicize findings concerning civil rights abuses in the commonwealth.  Indeed, the Office uses an informal set of criteria to determine whether to intervene in any particular matter.  Among those criteria are:  the extent of pervasiveness of the discrimination; the degree to which the discriminatory treatment or incident sets forth a novel issue or an issue of importance in the commonwealth; and the extent to which a particular situation, if not addressed, could escalate into a more serious problem.  The Office states that it “will review these and other factors in determining” whether its intervention is appropriate. 

The NYPD’s targeting of Muslim communities in Pennsylvania for surveillance without any evidence of wrongdoing is pervasive discrimination in violation of the U.S. and Pennsylvania Constitutions.  Singling out University of Pennsylvania students for monitoring based solely on their religious beliefs and practices or associations infringes upon core First Amendment rights to freedom of religion, speech and assembly and Equal Protection rights to be free from discrimination on the basis of religion, race, ethnicity, and national origin.  Wholesale targeting of an entire faith community is a clear violation of civil and constitutional rights in our commonwealth that could escalate if not properly investigated. 

Our Attorney General’s response is even more suspect when compared to the principled actions taken by leaders in other states:  In response to a request to investigate the NYPD’s surveillance in New Jersey, the Office of the New Jersey Attorney General stated that it is “thoroughly examining the underlying facts and circumstances relating to both the nature and scope of NYPD’s operations in New Jersey.”  The NJ Attorney General’s Office emphasized that it “take[s] this matter very seriously” and was “collaborating with the Department of Justice to ensure that a comprehensive fact finding review is conducted.”  We applaud this thoughtful and coordinated action. 

The NJ Attorney General is not alone in expressing grave concern over the NYPD’s practices.  Attorney General Eric Holder stated that reports that the NYPD conducted broad surveillance of Muslims outside New York City were “disturbing” and that the Justice Department was reviewing the matter.  Moreover, just last week, Rep. Rush Holt (D-N.J.) introduced a resolution condemning the NYPD’s “unreasonable, suspicion-less surveillance and investigations of mosques, college campuses, restaurants, businesses, and individuals without evidence of wrongdoing or criminality.”  The resolution calls upon the Justice Department to investigate whether the NYPD violated the Constitution or any federal laws and whether any agency of the federal government facilitated NYPD profiling or surveillance against members of the Muslim American community.  The NYPD's targeting of faith-based communities, says the resolution, “undermines the Nation's commitment to religious liberty and equal protection of the law" and "stigmatize[s] innocent members of the Muslim community merely because of their religion."  Holt was joined by several other members of Congress in introducing this resolution, including Reps. Judy Chu (D-Calif.), Keith Ellison (D-Minn.), Michael Honda (D-Calif.), Jesse Jackson, Jr. (D-Ill.) and Jan Schakowsky (D-Ill.). 

Targeting entire communities for investigation based on religious, racial or national origin stereotypes is not only wrong, it is a waste of law enforcement resources and produces flawed intelligence.  Attorney General Linda Kelly’s refusal even to acknowledge that the NYPD’s practices could be a violation of civil or constitutional rights of law-abiding Muslims in the commonwealth is shameful and risks jeopardizing the rights of all Pennsylvanians. 

--Seema Saifee, ACLU-PA Legal Fellow 

A swab in the cheek while the State Police cracks

Today the Pennsylvania Senate Law and Justice Committee and the House Judiciary Committee held a joint hearing in Gap, Lancaster County, on the plans by the Pennsylvania State Police to close its barracks in Ephrata and to downgrade the status of Troop J, the local PSP headquarters, to a substation. The latter move would lead to numerous services of the state police moving elsewhere.

PSP Commissioner Frank Noonan testified and was followed by several local leaders. Noonan said that the state police is currently 435 troopers short of its full complement, statewide, and expects to be at 500 short by the time the next class of cadets graduates from the academy. The locals, including the chairman of the county commissioners, the district attorney, and the chief of police in the city of Lancaster, protested PSP's planned closure.

Could PSP use $13 million? That's Noonan's estimated cost of Senate Bill 775, a bill to collect DNA from people who have not been convicted of a crime but who have been arrested for a felony or one of several designated misdemeanors. We oppose this bill because taking a DNA sample from someone is a search, and in order to conduct this search, the government needs a finding of probable cause that it will produce evidence of a crime. The high state court in Maryland recently came to the same conclusion. DNA collection from people who have not been convicted of a crime turns innocent-until-proven-guilty on its head.

The pricetag isn't the only significant practical problem with this bill. PSP's DNA caseload will increase from 23,000 samples per year to 121,000 samples per year, according to an article published in the Philadelphia Inquirer in February. Under current law, in which DNA is taken from those convicted of a felony or one of the designated misdemeanors, it takes eight months to analyze a DNA sample. The wheels of justice could come to a grinding halt if SB 775 becomes law.

Incredibly, in this environment, the House Judiciary Committee is rumored to be taking up SB 775 before the end of June. While local leaders gnash their teeth over the closure of a nearby state police barracks and while PSP leaders decry their shortage of troopers, the legislature may take up this bill to place a new and expensive burden on the state police.

How many troopers could the state hire with $13 million?

It's Time to Reform Indigent Defense in Pennsylvania

Last month, the ACLU of Pennsylvania filed a lawsuit against Luzerne County because adult defendants are not receiving constitutionally required counsel due to an underfunded the Office of the Public Defender (OPD).  The attorneys are so overworked that they rarely have time to meet with clients before hearings, investigate clients' cases, or adequately prepare for trial.  The situation had grown so dire by December 2011 that the OPD started declining representation to individuals charged with less serious crimes.  Over 300 individuals with pending criminal charges in Luzerne County are now facing the criminal justice system without an attorney when they are constitutionally entitled to one.

Today our attorneys are in court seeking a preliminary injunction that would authorize filling vacancies in the Luzerene OPD, increase the budget for the OPD, and provide private lawyers for those 300 criminal defendants who face criminal trials without counsel.

The right to an attorney--no matter one's ability to afford one--has long been established. This past March marked the 49th anniversary of the Supreme Court's decision in Gideon v. Wainwright, where the court declared that individuals with pending criminal charges have a fundamental right under the 6th Amendment to the U.S. Constitution to legal representation even when they cannot pay for it.  Despite this ruling, many people are forced to navigate the criminal justice system effectively unrepresented because public defender offices across the nation are overworked and underfunded.  A lack of representation can mean that no counsel is present or that the attorneys are so under-prepared that their efforts are essentially meaningless.

In Pennsylvania, we have witnessed the startling consequences of the failure to adequately fund public defender offices so that they can provide the representation required by the U.S. Constitution.From 2003 to 2008 during the infamous "kids for cash" scandal, nearly 50% of the juvenile defendants who appeared in court in Luzerne County did not have attorneys because the Public Defender's Office lacked the resources to represent them.  This lack of representation coupled with two corrupt judges resulted in at least half of these juveniles being sent to detention facilities, many for offenses that didn't warrant such harsh punishment.

The reason that many of Pennsylvania's counties have a poor track record when it comes to providing constitutionally required counsel is because indigent defense (legal representation for individuals with pending criminal charges who cannot afford an attorney) is solely funded by the individual counties.  Pennsylvania is the only state that does not provide at least some state funding for indigent defense.  This leaves fundamental rights to the competition and whims of local political battles over meager resources in cash-strapped counties.  Clearly, it is time for the General Assembly to step in and vindicate the constitutional rights of indigent defendants in Pennsylvania by providing at least some funding for county public defender offices.  

For an in-depth look at the state of indigent defense in Pennsylvania, please see the December 2011 report of the Joint State Government Commission's Task Force and Advisory Committee on Services to Indigent Criminal Defendants entitled A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania:.

--Hilary Emerson, ACLU-PA Legal Fellow

Breaking the Silence

By guest blogger Erik Eagle, Brownsville Area High School student

This year as the president of the newly formed Brownsville Area High School Gay Straight Alliance (GSA)*, I have had the honor of being the student organizer for the Day of Silence. I managed to bring the Day of Silence to my school despite opposition from the administration, which tried to infringe upon our rights by forbidding us from using the school’s PA system to explain the event and wearing T-shirts with messages about the Day of Silence. If it were not for the help of the ACLU of Pennsylvania, their efforts to block us might have been successful.

Brownsville Area High School students (from left) Daniel Boger Jr., Erik Eagle , Marissa Calvaresi, Katherine Diamond and Kimberly Kennedy. Photo courtesy of John F. Brothers/HeraldStandard.com

Although the school made assurances that they would allow the Day of Silence, when I sought pre-approval for these activities from the administration, all of my requests were denied.  At the same time the school allowed another student organization to do the exact same things for another event. It was only after receiving a letter from the ACLU-PA explaining our rights that the administration allowed us to proceed.

The Day of Silence, recognized on April 20 this year, is a student-led action that began 17 years ago at the University of Virginia. On that day, students take a vow of silence to bring attention to the silence faced by LGBTQ youth who are bullied; the students' silence is meant to echo that silence. With 90% of LGBTQ students reporting being harassed and 30% of LGBTQ students being physically accosted at school, this is a cause that is intended to make schools a safer place for those students.

I personally have encountered students who have made remarks such as "Why remain silent? Shouldn't you speak out against the bullying?" or "Being silent never accomplished anything, the Day of Silence is pointless." I respect these opinions, but at the same time I feel that it is paramount to understand that the Day of Silence is not expected to make immediate change. The point of the Day of Silence is to get people's attention and to make them think about why the day of silence is necessary. By grabbing people's attention in such a strange way, it piques their interest to the point that someone who would brush off the subject of anti-LGBTQ bullying will now want to engage you in a conversation about it. I have been told by everyone who participated in our district that they saw this effect almost immediately.

*Note: The GSA itself was only recognized as a student organization and allowed to meet on school grounds after the intervention of the ACLU of PA.  

Voter ID's "soft rollout" did not "work well"

Yesterday afternoon the Department of State released a statement in which Secretary of the Commonwealth Carol Aichele claimed that the "soft rollout"- a dipping of the toes into the pool, if you will- on voter ID "seemed to work well."

Around the same time that the department released its statement, I was at a polling place in Cumberland County that had this sign posted.

A volunteer who was working the polls for a candidate said that at least four people walked up to the sign and nearly turned around until the volunteer explained that they don't need ID to vote in this election. We also heard that another polling place in Cumberland County had a similar sign posted, and that at least one Republican voter didn't vote yesterday because of the sign.

Meanwhile, four blocks from Secretary Aichele's Harrisburg office at a polling place at St. Michael's Lutheran Church, this sign was posted. 

I saw the same sign at another polling place in Dauphin County. If you can't read the text on the white paper, it says, "BE PREPARED TO SHOW PHOTO IDENTIFICATION." Elsewhere, we heard anecdotes of some poll workers insisting on seeing ID.

 

This is what the Department of State means by "seemed to work well." In other news, war is peace, ignorance is strength, and slavery is freedom.

This is what voter suppression and intimidation looks like. In an election in which voters were not required to show ID, polling places were telling voters that ID was "required" and that they better "be prepared" to show ID.

Now, the voter ID supporters have insisted that no one will be turned away on Election Day because the law includes a provision that allows voters without ID to vote by provisional ballot. They then have to show the county a copy of their ID within six days. That's a soft form of disenfranchisement and is incredibly cumbersome.

But signs that tell voters that ID is "required" contradict that awful part of the law. The ACLU of Pennsylvania did not actively blanket the state to watch how voter ID was implemented yesterday. These anecdotes fell into our laps. What kind of signs should we expect to see in November when the law is scheduled to go into effect? Perhaps something like this?

Finally, Secretary Aichele's statement included this concluding sentence:

"Any voter who does not have an acceptable form of photo ID can get one at any PennDOT driver license center free of charge."

That hasn't been our experience. See my colleague Ngani Ndimbie's account of her recent experience at PennDOT in Pittsburgh. Now we've even heard that PennDOT is not issuing free IDs to people with outstanding fines or to people who had an ID that expired within the last year. Where in the law does it say that you can't get an ID to vote because you didn't pay a parking ticket?

The first month of the voter ID law has been a debacle. If Secretary Aichele and Governor Corbett want this law to withstand a legal challenge, the commonwealth will have to do a better job in court than its done so far in implementing this disaster of a law.

When I say "ID law" you say "poll tax"

Have you ever bullied a PennDOT employee into giving a man the free ID that he deserved? Until Wednesday afternoon I would have said, "No." More on this later.

Wednesday, April 18 was Pittsburgh's voter ID action, held at noon at the Smithfield Street PennDOT Driver's License Center in downtown Pittsburgh. The action was organized by the Protect Our Vote coalition and modeled after the event held in Philadelphia shortly after the voter ID law was signed by the governor. 

Driving down to the rally, I wasn’t expecting much other than what we put in the media advisory: a set of people getting free IDs, advocates holding signs, and a press conference. But it has been said that one has be an optimist to do the work of a community organizer. Perhaps that's why I thought that PennDOT would be far more prepared to respond to the demand for free, state-issued, non-driver photo IDs for voting purposes. At the very least I figured, since our coalition of organizations and activists had been aggressively advertising for one and a half weeks,  PennDOT would respond by putting their most polite, seasoned, and trained staff to work that day to prove us wrong.

...Did I mention that I'm an optimist?

On the day of the action people seeking free IDs for the purpose of voting each filed into the DMV with an advocate. So why would someone need an advocate to get a free non-driver photo ID? Because more than a month since the law passed, PennDOT employees were not trained, were not courteous, and were not ready.

Here are just a couple examples of misinformation from PennDOT employees:

* Two people were forced to pay for their non-driver IDs because their IDs had not yet been expired for a year. So, while their IDs would be more than a year past expiration on November 6th and thus invalid for voting, they had to pay for IDs on Wednesday, April 18th. 

* A couple from Wilkinsburg who had lost their non-driver photo IDs were turned away. These citizens of the commonwealth (both currently unemployed) were told that they could not get a free ID for voting purposes because they had lost their previous IDs.

I personally helped a man who had been turned away for no reason. My conversation with a PennDOT employee went like this:

Me: I'm sorry, could you explain why this gentleman can't get an ID?

PennDOT: The IDs are primarily for people who have never before had an ID in Pennsylvania. 

Me: He needs this ID to be able to vote in the November election and he has all of the required documents…

PennDOT: There are a number of other IDs that one can use to vote in the November election. Student ID, state employee ID…

Me: [To the person I'm helping] You're not a student are you? An employee of a college or university? A member of the US armed forces? 

Slightly embarrassed, exhausted Pennsylvanian: Um, no.

We went on like this for a little longer before the PennDOT employee finally let the man go through. At this point I was certain that a new PennDOT training manual must include a picture of a dragon guarding a treasure and a caption that says, "When a Pennsylvanian asks you for a free ID for voting, remember that state issued IDs are precious. Always think: WWDD? What would a dragon do?"

Sheesh.

I left the rally with a stack of intake forms and a furrowed brow. On the drive back I was fuming. Why were they making this so hard? Why weren't they ready? And if that's how I felt, I can guarantee that the people who came down to get voting IDs also felt…taxed. Certainly emotionally, some physically, and for a good number, financially. 

- Ngani Ndimbie, ACLU-PA Community Organizer

The End Racial Profiling Act: Giving Us a Way to Fight Back

For years, members of my family, as well as my friends and acquaintances, have come to me for help with their run-ins with the police. They know I have represented many victims of racial profiling. They also know that I'm more than just a civil rights attorney — I'm someone who understands what they've gone through.


I may fight racial profiling in the courtroom, but I also live with it in my everyday life. Just last August, I was pulled over twice in the span of 48 hours, when I was driving from Oakland, Calif., to Philadelphia to begin my new job as executive director of the ACLU of Pennsylvania.

The trip, my first cross-country drive, was amazing. I was able to visit some national parks for the first time, such as Yosemite and Mount Rushmore, and to appreciate the beauty of our country in a way that traveling by plane does not often allow. But I was also wary, as I always am, of being stopped by the police and had been warned by friends to be especially careful in Michigan and Ohio.

Their warnings proved prescient. On the trip, I was pulled over by a Michigan state trooper. I had spotted him in my rear-view mirror and knew that I had been obeying all traffic laws, so I was not sure why he pulled me over. He didn't seem to know why either, because when I asked, he fumbled around for a response that was unintelligible. We both knew he had no reason, so when I shared with him that I had once litigated racial profiling cases for the ACLU, he let me go.

But my triumph was short-lived. A day or two later, while driving in Ohio, I was pulled over again, this time for not coming to a complete stop in the parking lot of a fairly empty shopping center. The officer could barely contain his glee while writing me a ticket, and started asking probing questions about who I was and where I was traveling. I cut him off quickly, accepted the ticket and continued on my way. 

Thousands of minor traffic laws are violated every day, and most are ignored by the police. Rarely, however, do Black men receive the benefit of this discretion.

Still, I consider myself relatively lucky to be able to escape those instances with only a sense of fury and a ticket. My cousin, Ron, wasn't so lucky.

One recent afternoon in Wilmington, Del., narcotics officers with the local police approached Ron near his home, ordered him out of his vehicle and slammed him against a truck. They threw him to the ground and two police officers held his hands and used their knees to press on his shoulders. Another officer sat on his legs, while the fourth officer kicked him. They punched him in the face. A canine unit was called to the scene to search his car, without his permission. The officers never bothered to ask Ron his name, hog-tied and arrested him and took him to the police station, where he was strip searched.

No contraband was found in Ron's car. Ron had done nothing wrong, yet he was charged with resisting arrest and failure to stop for police sirens. There were no sirens, and turns out, the narcotics officers simply had the wrong guy, which they admitted later.

Ron, who is now in his mid-twenties, says he has been stopped by the Wilmington police approximately 20 times since he started driving at age 15. In fact, he was stopped again just weeks after this brutal incident allegedly for running a stop sign. He was let go without a ticket. Ron says that in eight of the 20 times he has been pulled over, officers had their guns drawn.

When my family and friends come to me seeking advice about how to respond to their encounters with the police, I am not always optimistic that I can help them. I've litigated these cases for many years, and I know that part of the problem is the very high burden of proof in racial discrimination cases.

That is why Congress needs to pass the End Racial Profiling Act, to make it easier to bring these cases. We have to have a way to fight back against those who have made it their job to target minorities for abuse or mistreatment.

-Reggie Shuford, ACLU-PA Executive Director

*Some details have been altered to protect privacy.

This post originally appeared on the national ACLU Blog of Rights as part of its series on ending racial profiling.


Take action. Urge your member of Congress to pass the End Racial Profiling Act, legislation sponsored by Sen. Ben Cardin (D-Md.) and Rep. John Conyers, (D-Mich.) which would, among other things, provide training to help police avoid responses based on stereotypes and unreliable assumptions about minorities.