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This Week’s Citations at Capitol Abridge Our Right to Freely Assemble

11 Sep

The Wisconsin State Capitol Police began ticketing protesters in the Capitol Rotunda last week for holding up signs without a permit. According to a Department of Administration spokesperson, on Monday police issued more tickets both for “unlawful display of a sign and not having a permit.” The citations were served at the protesters home to “avoid confrontation and maintain order at the Capitol.”  

Since the extraordinary events of February 2011, the American Civil Liberties Union of Wisconsin has stepped up its efforts to protect the free speech rights of all Wisconsin residents at the Capitol and our volunteer legal observers are now at the Capitol Rotunda every day during the noon hour.

Today, in response to the State Capitol Police Chief’s new enforcement strategy, Chris Ahmuty, Executive Director of the ACLU of Wisconsin made the following statement:

David Erwin, the State Capitol Police Chief since July 2012, has had a rocky start.  His on-again, off-again, on-again enforcement of regulations governing events and protests in the Capitol Rotunda suggests problems. Either he lacks an understanding of our constitutional rights or is willing to abridge the rights of all Wisconsin residents to peaceable assembly and free speech at the Capitol. 

Monday’s tickets are unconstitutional. It is ludicrous to say that it is illegal to hold up a sign or that groups as small as four people need to apply for a permit 72 hours in advance if they are promoting any cause. 

The police served the tickets at the protesters homes. This suggests that the police know the identity of many of protesters who regularly exercise their rights at the Capitol. It also suggests that this new enforcement effort is a high priority for the Capitol Police. The ACLU believes that there are better uses for the Capitol Police force’s limited resources. 

In a related matter, in an interview posted on wisconsinreporter.com on September 10, 2012 and on the eve of the anniversary of September 11, remarks from Chief Erwin have exposed another problem. According to the site, Erwin said, “And so we have a group of people that come here, and last week they were holding signs and they are part of this group that, for lack of a better word, are terrorizing people at this Capitol.” 

It is unclear what group of people he’s talking about; it may just be people who allegedly are disrespectful or call others names. Regardless, in our post-9/11 world, it is inappropriate to accuse someone of terrorizing others in this loose way. It is hard to imagine former Capitol Police Chief Charles Tubbs making such an accusation. Erwin admits that Tubbs did a great job during the large-scale protests as evidenced by the small number of arrests and the fact that no injuries occurred under Tubbs’ leadership.  Perhaps Erwin needs to learn how to defuse situations rather than engage in name calling. 

Do Four People Make a Rally? ACLU of WI Asks in Response to Miller-Erwin Letter Exchange

31 Aug

On August 28, Wisconsin State Senator Mark Miller sent a letter to Capitol Police Chief David Erwin expressing his concerns that the citizens of Wisconsin should have a free and open access to the Capitol building. In a letter of response by Capitol Police Chief David Erwin on August 30, Chief Erwin outlines why he believes permit requirements for political protests are reasonable.

Ultimately the ACLU of Wisconsin believes the new rules issued by the Wisconsin State Department of Administration, including the requirement for groups as few as four people to secure a permit for a “rally… for the purpose of actively promoting any cause,” are not reasonable. Particularly if the rules are applied to the Solidarity Sing Along which takes place at a reasonable time (the hours between noon and 1:00 p.m. are defined in the DOA’s rules as not being normal working hours) and place such as in the rotunda, where state of Wisconsin has long allowed the public to hold rallies of all sizes.

“Chief Erwin said the permit process has been in place for decades,” said ACLU of Wisconsin Communications Director Stacy Harbaugh. “However, I have been organizing volunteer legal observers to witness protests at the Capitol over the past six years and it has been my experience that Capitol Police have asked for voluntary compliance in filling out permits and in practice have only required permits for protests that require extra staffing, closed streets, access to building electricity and other logistical needs. There has typically been reasonable accommodation for protests large and small, planned or spontaneous.”

The Constitution allows “reasonable time, place and manner” regulations. But such restrictions on the use of space must be content-neutral. By requiring permits for “rallies” of four or more people, the DOA and Capitol Police must look at the content of the event to determine whether or not a group in the Capitol is a “rally” promoting a cause versus a gathering of four people who want to talk about where to get lunch.

In addition, any restriction must be narrowly tailored to serve a significant government interest. Chief Erwin suggests that permits are required for police to adequately accommodate public safety interests, but it is unreasonable to suggest that a group as small as four would overwhelm the police force. Further, the First Amendment requires and the DOA’s own rules allow for defined, spontaneous events. It is the responsibility of the Capitol Police to have staffing plans in place to have the flexibility to protect the safety of all announced and unannounced visitors to the building.

The participants of the Solidarity Sing Along have worked with the Capitol police and staff to accommodate multiple users of the Capitol rotunda. This relationship can and should continue to meet the needs of police to make narrowly tailored, content-neutral space management decisions.

As for the public safety concerns outlined in Erwin’s letter, we believe it is the responsibility of the Capitol Police to ensure that the Capitol building is both a safe place to work and for demonstrators to engage in peaceful speech activity in the rotunda.  To threaten to enforce a permit requirement against peaceful, cooperative protesters on the basis of safety concerns arising from the alleged actions of a few individuals would punish those engaging in protected speech activity. If criminal harassment or intimidation is occurring against Capitol workers or singers alike, it is the responsibility of police to address it, not crackdown on peaceful protest.

The ACLU of Wisconsin will continue to coordinate volunteer legal observers to be witnesses of events at the Capitol over the weekday noon hour and monitor the enforcement of administrative rules.

Racial Justice Advocates Ask Sen. Kohl to Support the End Racial Profiling Act

17 Jul

On Monday, July 9, a dozen Wisconsinites went to U.S. Senator Herb Kohl’s office to discuss the problem of racial profiling. They shared stories about their experiences living in Southeastern Wisconsin and described their concerns with race-based traffic stops and other actions by law enforcement they felt were discriminatory. 

ACLU of Wisconsin members were among those who visited Kohl’s office to ask for his support of the End Racial Profiling Act (ERPA). The End Racial Profiling Act of 2011 (S. 1670 and H.R. 3618) would prohibit and attempt to ban racial profiling based on race, religion, ethnicity and national origin at the federal, state and local (including tribal) levels. The House version of ERPA includes gender as a protected category.

Contact Senator Kohl’s office and ask him to be a co-sponsor of the End Racial Profiling Act.

Followers of the Forward for Liberty blog may have already read our statements about how Milwaukee residents deserve professional policing after controversial allegations of illegal strip searches came to light. It is our position that racial profiling creates second-class citizens in Milwaukee and anywhere in Wisconsin where race is a factor in police stopping people on the street or in their cars. We worked to encourage the state legislature to pass a law requiring police to keep data on the race and ethnicity of people pulled over in traffic stops, but that law was quickly repealed by Governor Walker last year.

Some of the advocates who visited Kohl’s office are a part of the Face the Truth campaign which is an effort by the Rights Working Group to get meaningful action taken to stop discriminatory policing across the nation. The campaign is being endorsed by the American Civil Liberties Union along with a coalition of over 100 national, state and local civil liberties, human rights, civil rights, immigrants’ rights and racial justice organizations.

Here is more about racial profiling from the Rights Working Group’s website:

What is racial profiling?

Racial profiling is the use of race, ethnicity, religion, or national origin by law enforcement agents as a factor in deciding whom to investigate, arrest or detain, except where these characteristics are part of a specific suspect description. It is a degrading practice, is pervasive across the United States and continues largely unchecked, violating constitutional and international human rights:

- African American, Native American and Latino/Hispanic individuals are stopped and searched much more often by law enforcement, for example, when “driving while black or brown” than whites;

- Since September 11, 2001, members of Arab, Muslim, and South Asian communities have increasingly and disproportionately been placed under surveillance, searched, interrogated and detained in the name of “national security” and have often times been labeled “terrorism suspects” when in reality many have only been charged with misdemeanors or minor immigration violations, if they have been charged at all;

- In recent years, law enforcement has singled out members of a third population under the guise of immigration enforcement—disproportionately harassing, interrogating, physically abusing and detaining individuals perceived to be Latino or Hispanic, including U.S. citizens and lawful permanent residents.

By focusing on arbitrary factors unrelated to criminal activity rather than on specific indicators of criminal behavior or specific information about a criminal suspect, law enforcement agents decrease the hit rate on catching criminals. They also lose the trust of community members who believe agents to be biased or unjust. As a result, community members become less likely to assist with criminal investigations or seek protection from police when they themselves are victimized, which makes everyone less safe.

What has been done recently to stop racial profiling?

The U.S. Department of Justice issued guidance prohibiting the use of race and ethnicity by federal law enforcement agencies in 2003 but this guidance is not enforceable, it does not address profiling based on religion or national origin, it does not cover surveillance activities, and it leaves gaping loopholes that allow racial profiling for “national security” purposes and at U.S. borders. The Department of Justice should revise these guidelines and apply them to anywhere federal agents act in partnership with state or local law enforcement agents and to any agency that receives federal funds.

The Secure Communities program and the Criminal Alien Program were established by former President George Bush in 2008 and expanded under President Obama. These programs involve state and local police in the enforcement of federal immigration laws and have formally (and informally) resulted in pre-textual arrests of people whom the police perceive to be “foreign,” including citizens and lawful permanent residents; police stop these individuals for other alleged, often minor offenses, as a pretext for checking immigration status. Programs like these should be eliminated if they result in racial profiling.

Arizona’s Anti-Immigrant Law: What’s at Stake When the Supreme Court Hears SB 1070

26 Apr

This week the infamous Arizona law that legalized racial profiling and criminalized individuals who do not carry proof of their citizenship status at all times reached the U.S. Supreme Court. The ACLU, along with a coalition of civil rights organizations, have challenged Arizona’s SB 1070 because it invites unequal treatment of individuals by law enforcement, conflicts with federal law and violates basic individual freedoms.

This info graphic helps to explain what is wrong with the Arizona law, where copycat laws were passed in other states and what’s at stake in the SCOTUS decision. Read on for the latest update from the ACLU’s Immigrants’ Rights Project. Report from the Supreme Court: SB 1070:

On April 25,  the Supreme Court heard arguments in one of the big cases of the term, Arizona v. United States. Several justices, including Justice Stephen Breyer, expressed serious concerns about the law’s impact on civil liberties, as they recognized that it might lead to prolonged detention while an officer investigates a person’s  immigration status.

In response to those serious civil liberties concerns, Arizona was forced to retreat. Arizona was not defending S.B. 1070 as it was written by the state legislature, but rather an entirely different and fictional law that merely notifies the federal government that it has detained someone whose legal status it deems to be suspect.

But make no mistake: even that narrow reading of the law would result in a serious violation of the rights of citizens and lawfully present immigrants. As we heard in court today, there’s no easy way for a citizen who happens not to have their ID on them to avoid being detained for an hour or more on the side of the road while an officer demands that they prove their right to be here.

Tellingly, Arizona did not step up to defend what the state legislature actually did in S.B. 1070. The law, on its face, implements an Arizona state immigration enforcement policy of zero tolerance and maximum harshness. But the federal immigration law that Congress passed recognizes that immigration status is actually far more complicated under federal law. Under federal law, the executive branch can permit someone who is applying for asylum, or seeking other kinds of legal status, to stay in the U.S. while their status is decided. But under Arizona law, they are subject to detention and criminal prosecution, and they take that risk every time they leave their homes and venture out onto Arizona’s streets.

Chief Justice John Roberts asked today whether Arizona v. United States is a case about racial profiling. And although the federal government lawsuit is about the limits on state power, racial profiling is a central issue in the case, as chief law enforcement officials around the country have stated. It’s simply impossible to enforce laws like S.B. 1070 without relying on false and illegal stereotypes. And because that’s true, U.S. citizens and lawful immigrants are caught in the dragnet. Ultimately, it’s not only up to the Supreme Court to decide if S.B. 1070 will stand. The American people must decide whether we will tolerate a nation with such invidious laws.

This blog post was written by Cecillia Wang from the ACLU’s Immigrants’ Rights Project and was originally posted on the ACLU’s Blog of Rights.

ACLU of Wisconsin goes to residents for information concerning Milwaukee police strip searches

2 Apr

The American Civil Liberties Union of Wisconsin has been trying to investigate the policies and practices of the Milwaukee Police Department regarding strip searches.  The ACLU’s investigation began after the MPD in March acknowledged that Milwaukee police officers may have been conducting unauthorized strip searches and illegal body cavity searches on the public streets.

On March 28, 2012 ACLU made a public records request to the MPD for copies of documents such as orders, memos and report that may help us to assess whether the department is following its own strip search and body cavity search procedures.  The department has not yet produced the documents requested or denied our request.

Because of the delay on the part of MPD and the public interest in this matter, the ACLU of Wisconsin has begun seeking alternative sources of information.

The ACLU is asking citizens for copies of any strip search authorization reports that MPD may have issued to them.  MPD procedures require MPD give the subject of a strip search a copy of a Strip Search Authorization Report.  The police ask the subject of the search to sign and affix a fingerprint to the report.

The ACLU is publicizing their request by means of social media and flyers distributed on the street, in public places, and through community organizations. While it is impossible to know how many Strip Search Authorization Reports the MPD issued by asking citizens, it should be possible to learn relevant information about MPD search practices.  The ACLU has promised to respect the privacy of those who submit copies of forms. The ACLU hopes that more information from the MPD will be forthcoming.  The ACLU will share the facts regarding any possible pattern or practice of improper strip searches with appropriate authorities and the public.

Milwaukee residents living in every neighborhood deserve high quality professional police service

2 Apr

Milwaukee residents living in every neighborhood deserve high quality professional police service. No one, regardless of where they live, should have to put up with police misconduct. Recent allegations  that several officers in District Five carried out unauthorized strip searches and illegal body cavity searches need to be investigated carefully, fairly, and comprehensively. While it is important to determine whether or not individual officers violated department policies or state law or civil rights laws, it is equally important that the department evaluate its own policies, practices, and strategies to see if they may have undermined police service and civil liberties.

It is in the interest of residents and the department that the department responds to the alleged incidents of police misconduct with candor, transparency, and self-evaluation. Without violating the due process rights of the officers involved and regardless of the outcome of investigations into their conduct, the department can learn from this controversy and provide better service in the future.

The department must consider what impact its own policies, practices, and strategies may have on the delivery of police services.

For instance, incredible as it sounds, if the officers were truly ignorant of the policies or the differences between a pat down or frisk, a strip search, or a body cavity search, then the department has to explain how its training and supervision failed. Is their training forgotten or ignored when officers detain residents on our public streets?

The department must also evaluate its proactive policing strategy to see if it makes incidents of police misconduct more likely to occur. Under this strategy the Milwaukee Police Department made 240,000 traffic and subject stops in 2010. Traffic stop figures through October 2011 show the department will have made a similar number of stops in 2011, according to the Milwaukee Journal Sentinel.

This extraordinary number of stops obviously increases the opportunity for interactions between officers and residents to go awry. What’s more as Milwaukee Police Chief Flynn told the newspaper, “Yes, of course we are going to stop lots of innocent people.”  The department should evaluate what message it is sending to officers when its proactive policing strategy disregards a person’s innocence. The message at best says civil liberties are expendable.

We pointed out in an op ed to the Milwaukee Journal Sentinel last month that the department should also revisit its decision to create the Gang/Drug Unit when the Metropolitan Investigations Division, formed in August, 2010. It appears that the implicated officers including a sergeant belonged to District Five’s anti-gang unit. Many police managers across the country have moved away from special gang and drug units, especially after revelations of widespread abuse by such units of the Los Angeles Police Department. Perhaps, there is a legitimate use for such units, but it appears the type and level of supervision given to Milwaukee’s anti-gang unit was deficient.

Finally, because metropolitan Milwaukee is a hyper-segregated area along racial and income lines, one cannot address policing without addressing civil rights. In the light of the department’s inability to use traffic stop data to identify possible racially biased policing, it is imperative that the department clarify how it is identifying biased officers. We don’t know if these District Five officers are biased, but bias could be a contributing factor. The department needs to be more aggressive in identifying and remedying individual or systemic bias.

The Milwaukee Police Department has an opportunity to evaluate its policies, practices and strategies following the allegations regarding misconduct by officers from District Five. If it simply investigates the officers, it will be setting Milwaukee up for more frustration. Chief Flynn has the capacity to exercise leadership. He can demonstrate that the department will address possible systemic problems. If so, this controversy may be an opportunity to further improve police community relations.

If you have been the target of racial profiling in Milwaukee or in Wisconsin, tell the ACLU of Wisconsin your story.

Warrantless GPS Tracking is a Violation of Fourth Amendment Rights: SCOTUS Decision Cheered by Privacy Defenders

23 Jan

Today, the U.S. Supreme Court concluded that if police attach a Global Positioning System tracking device to a car, the Fourth Amendment requires that they get a warrant to do so. The decision, United States v. Jones, protects privacy rights against one intrusive way the police use GPS technology and answers a question the Wisconsin Supreme Court sidestepped in State v. Sveum in 2010. Read more about this privacy victory in the ACLU’s Blog of Rights.

“Police should have probable cause that a crime has been or is likely to be committed before using GPS tracking technology,” said ACLU of Wisconsin Executive Director Chris Ahmuty. “The ACLU of Wisconsin agrees that without a judge’s agreement, police use of warrantless GPS tracking would be a violation of our Fourth Amendment rights. The details of our private lives are revealed by our movements. Allowing police the power to obtain information on the location of anyone’s car and movements, for any reason or for no reason at all, without a valid warrant, is unconstitutional.”

In February 2010, the ACLU and the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief (PDF) with the Wisconsin Supreme Court in State of Wisconsin v. Sveum, urging the Court to hold that attaching a GPS device was a “search or seizure” requiring a warrant under the Wisconsin constitution as well as the Fourth Amendment. The brief warned that approving warrantless GPS could allow police to engage in fishing expeditions to obtain a detailed picture of someone’s personal associations by identifying the churches, bars, protests or doctor’s offices a person visited.

In its decision in July 2010, the Wisconsin Supreme Court sidestepped the question of whether there are any constitutional limits on police use of global positioning system devices to track people in their cars. Instead, the state’s high court decided that a court order obtained by the police satisfied the warrant requirement of the Fourth Amendment. Today’s unanimous decision by the U.S. Supreme Court emphatically answers the question the Wisconsin courts left open: the Fourth Amendment protects privacy against intrusive GPS tracking.

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ACLU of WI: Racial profiling creates second-class citizens

7 Dec

Milwaukee police last year made nearly 200,000 traffic stops. Police Chief of Edward Flynn acknowledges that his officers are “going to stop lots of innocent people.” What’s more a recent Milwaukee Journal Sentinel Watchdog Report found a racial gap in the 46,000 traffic stops Milwaukee police made in the first four months of 2011. The Chief explains the racial gap by pointing to his targeted policing strategy which uses traffic stops to disrupt criminal activity.

The Chief’s explanation falls short. Attributing racial disparities to a conscious departmental policy not only downplays the existence of biased policing, but by encouraging officers to make so many traffic stops, the policy masks illegal racial profiling.

The Journal Sentinel report found that the greatest racial disparity in traffic stops occurs in Police District 1, which includes downtown and parts of the east side, which have mostly white residents. A more probable explanation in this district than the effects of targeted policing is the phenomena known as “race out of place” stops. In other districts, the notion that police are responding to suspect descriptions isn’t credible when the description du jour appears to be “young black male”.

The Journal Sentinel report also found that black drivers were much more likely to have their vehicles searched than white drivers. Unfortunately, the report doesn’t state how often police used the commonly abused practice of consent searches. It did find that the hit rates for contraband were approximately 22% for both black and white drivers.

Community leaders must demand to know what the Chief is doing to eliminate bias, in addition to exhorting his officers to be fair and treat all motorists with respect. If the Chief’s policing strategy has rendered traffic stop data collection and analysis less useful as a management tool, how is the department determining the extent to which bias may be occurring? How is it remedied?

It has been suggested that the number of complaints filed by citizens about police actions is a measure of how officers treat motorists. Citizen complaints do not give us the same quantitative information as traffic stop data. Individual motorists may complain about rude treatment, but they can’t know how many black or Hispanic drivers are stopped and searched compared to white drivers. There is also reluctance on the part of offended drivers to file complaints when the complaint process is daunting to most ordinary citizens. The ACLU of Wisconsin is collecting stories about biased policing online at www.aclu-wi.org/story.

In serious discussions about using traffic stop data to address biased policing, no one I know claims that the data alone will prove that a particular officer or shift or agency is biased. Officers who do not act contrary to rules prohibiting racial profiling should have nothing to fear. Black and Hispanic drivers on the other hand do have something to fear from racial profiling – second class police service and citizenship.

This “Another View” op-ed originally appeared in the Milwaukee Journal Sentinel on December 7, 2011. Read the MJS editorial in support of Chief Flynn’s policies on the Milwaukee Journal Sentinel opinion page.

Madison School Board Drug-Dog Policy Raises More Questions Than Provides Answers

27 Sep

Last night the Madison Metropolitan School District Board approved a school search policy that expanded the powers of police, upon request of school officials, to sweep the campuses of middle and high schools. The vote was 5 to 1 with a dissenting vote from Board President James Howard who expressed his concerns with the presence of police dogs in middle schools. That idea was also shared by board member Marj Passman who ultimately cast a “yes” vote despite her concerns about students’ rights.

The ACLU of Wisconsin’s Stacy Harbaugh was there to speak about the civil liberties implications of the policy. Here’s what she said:

The last time I was in front of the board to talk about the expansion of the school’s police/K9 policy, I shared some of the bad stories of poorly-written or poorly-implemented policies that prompted litigation in other schools when drug-dog searches started making news around a decade ago (read more about ACLU litigation and drug-dog opposition in New Mexico, South Dakota, South Carolina, Washington). Clearly this policy-as-written takes into consideration the mistakes of the past.

However, I feel that this proposed policy still brings up more questions than it provides answers.

1. What if it doesn’t work? Will the number of drug incidents be the only determining factor for success? Varying studies show that drug-sniffing dogs can either miss the presence of illegal drugs OR give false alerts when drugs aren’t actually present (read more in the Chicago Tribune about racial bias in the use of dog searches in traffic stops and the University of Massachusetts, Dartmouth study that echoed a couple of decades of the documentation of evidence that our paper currency can trigger dog alerts due to widespread cocaine residue). What happens if students bring drugs into school that the police dogs miss or if drug use shifts to a form that is harder for drug-sniffing dogs to detect such as prescription drugs? Will students then become desensitized to the sweeps and lockdowns? Is anyone considering a sunset provision?

2. At what point will we know this is too much? What does “periodic” mean? Will articulated suspicion trigger a Principal to contact police for a K9 sweep or will they just happen on a Principal’s whim? At what point will parents and students have a right to say that the presence of police and drug dogs in their schools have gone too far?

3. Will students be targeted for further search? If a police dog alerts, will students be pulled out of class to be searched? When banned items are confiscated and an “a police investigation conducted,” will students be informed of their right to remain silent? To call a parent? To an attorney? Students don’t give up 4th and 5th Amendment rights when they go to school, but their rights aren’t written into this policy.

4. What is the complaint procedure for false alerts? Even the most well-written policies could be poorly implemented. What is the complaint mechanism for students who are targeted for embarrassing and anxiety-producing searches by school officials and possibly police officers if a dog falsely alerts to the students’ locker or vehicle?

Finally, I would like the board to find a policy that respects civil liberties and avoids the lockdown. School lockdowns should be used only in emergencies such as bomb or weapons threats. Otherwise, the lockdown is a very punitive approach that is the opposite of supportive, nurturing atmosphere our schools should be.

What would this policy look like in practice if students knew drug-dog sweeps were possible or that they had happened, but were not aware of the presence of police dogs while they were in class? How can we ensure that the classroom learning experience of students who aren’t breaking the rules remains unaffected? The other side of “deterrent” or “prevention” is intimidation. And lockdowns intimidate all students, including innocent ones.

Ultimately, what does this teach our youth about their rights?

There were about eight other people who shared their thoughts during the public comments section of the meeting. Two supportive individuals decried the increase of drugs in school and in the community. One mother who also worked as a police officer told the board that she was equally concerned about the presence of drugs in school (and the potential for gun violence that comes with drug trade) as she was that students didn’t seem to think the policy was a big deal or that there could be human bias in the decision to bring in drug dogs to schools with a more diverse student body. Other policy opponents raised questions about how students whose families with more financial resources would better survive getting busted rather than not having equal treatment in the criminal justice system.

Ultimately, the policy-as-written doesn’t present an immediate violation of student privacy rights. Hopefully the school system will do as much diligence in reporting on the impact of K9 sweeps (including keeping data on how many students are pulled out of class for additional searches even if dogs falsely alert) as they did in reporting back on their engagement strategy to gather community feedback.

At some point in the future our community will scratch its head and wonder why there are so many young people in our criminal justice system. We will ask ourselves why it seemed like a veritable school-to-prison pipeline was constructed one decision and one policy at a time. We will wonder why we sought out a law enforcement solution to eliminating drugs when trends in drug availability and abuse were so clearly tied with an increase in poverty and a decrease in access to health care (neither of which our public schools have the power to fix). And in the future, we may look admirably at other school districts’ policies that took huge risks to ease up on zero-tolerance and find commonsense solutions to addiction and criminalizing youth.

The school board’s decision was also covered on madison.com.

(Also read about what happened when a drug dog alerted to a Pennsylvania student’s car, the car was searched and the student expelled, not for drugs, but for having work-related knives locked in his vehicle - this editorial says that zero-tolerance shouldn’t mean zero thought)

Selling your DVDs and CDs in Madison? Police Want Your Photo and to Know What You’ve Been Watching

16 Sep

The Madison city council’s Public Safety Review Committee met on Wednesday to consider a change to the law governing the licenses of secondhand dealers. The ordinance change would create an electronic reporting system where secondhand dealers, such as used bookstores or pawn shops, would report daily to police what was sold and would include a digital picture of the person who brought in the items. The list includes things like jewelry and electronics but it also includes recorded materials such as CDs, DVDs and audiobooks.

Whenever a change to this law comes up, the ACLU of Wisconsin’s Madison Area Office pays attention. In 2007, a campus-area alder suggested that used book dealers report their book buy-backs to police after a rash of textbook thefts. Bookstores objected saying that the reporting would be burdensome and costly. Police said they needed more tools to fight crime. The idea of electronic reporting came back in 2009 when Madison police held a listening session with stakeholders and explained the need for modernization but also heard concerns about data security, cost and customer privacy.

This proposal is an example of how whenever the government has access to a list of what we read or what we watch or the websites we visit, the ACLU must respond. Remember how librarians fought back when the Patriot Act would have required them to offer our library records for inspection? They protected our right to read because it was a core privacy issue. Our choice to posses any expressive material, be it a book or a CD or a film on DVD, is something we may choose to keep private. Especially if that material is controversial.

Government inspection of lists of such materials, even after they have been sold to a secondhand dealer, can create a profile of an individual’s personal selection or possession of intellectual or entertainment choices. We have a First Amendment protected tradition in this country to allow people to pursue and exchange information anonymously, even if that information is controversial. The only exception to this is in the realm of child pornography, although in the surveillance culture of post-9/11 America, the government now labels some information sharing as suspicious activity. The infrastructure for intelligence gathering has grown exponentially in the past ten years and our government literally has more data than it knows what to do with despite the estimated 2,000 private companies it has hired to data mine all of the cell phone records, suspicious activity reports and other bits of surveillance it has gathered from innocent people in the homeland. Our government does not need another database to spy on our personal choices.

Also whenever the government imposes on the First Amendment or the privacy rights of individuals, it has the responsibility to prove a compelling justification for that imposition. Police say theft, particularly related to drug use, justifies the need for this database. But requiring secondhand dealers to maintain electronic records and digital photographs of media sales specific to sellers and turn those records over to police daily treats all customers as potential criminals without suspicion that any particular person has stolen the CDs, DVDs, audiobooks or other media. The best way to balance fighting crime and protecting privacy is through individualized investigations by police who obtain warrants to search dealers’ own records. Database hacking or fishing expeditions or through electronic lists of who sold what would become easier and no less unacceptable under this proposed ordinance change.

Madison residents should ask their Common Council Alder to support an amendment that exempts “audio tapes, compact discs, laser discs, records, videotapes, digital video discs, portable media players or other similar audio or audio-visual recording devices,” “computer games” and digital pictures of customers who sell them from the daily electronic reporting to local police. Such an amendment would allow secondhand dealers and the city to comply with state law without compromising innocent people’s rights to privacy and freedom to exchange expressive materials.

Read the proposed ordinance online.

Madison residents can find their city council representative’s contact information on the city’s website.

While thinking about controversial materials, remember that September 24 through October 1 is Banned Books Week. We take one week out of the year to acknowledge how the work to defend our right to privacy and our right to read happens 365 days a year. Join us in Madison for a Banned Books Week kick off happy hour at Mickey’s on Friday, September 23 from 5:30 – 7:30 p.m. We will co-host a reading of banned books at Woodland Pattern Book Center in Milwaukee on Wednesday, September 28 with a reception starting at 6:30 p.m. Both events are free, but donations are welcome.

ACLU of WI Urges WI Senate to Reject Hasty Move to Repeal Racial Profiling Data Collection Law

23 Feb

The American Civil Liberties Union of Wisconsin is dismayed legislators are seeking to repeal a new tool for police managers seeking to identify and address possible racial profiling in officer initiated traffic stops. Today the Senate Committee on Transportation and Elections voted to send SB-15 to the full Senate for a vote to repeal our state’s new traffic stop data collection system.

On January 1, 2011 most law enforcement agencies across Wisconsin began collecting data from traffic stops and searches which includes the actual or perceived race or ethnicity of the motorists they stop. The intention of the new traffic stop data collection system is to make it possible determine if a law enforcement agency or one of its units is disproportionately stopping minority motorists. If so, the agencies’ leaders would be able to investigate and determine the degree to which the disparity may be the result of biased policing.

At the public hearing on the bill to repeal traffic stop data collection, it was clear there was a lot of confusion about the new system. The ACLU of Wisconsin testified at the bill’s public hearing on February 16, 2011 urging legislators to address problems with implementation rather than denying that biased policing can happen here. Very small agencies may not have the computer capacity to automatically load most of the data requested at the time of a traffic stop — however — that is no reason to scuttle a useful and manageable way to address a real problem for law enforcement all across our state.

To give up on a data collection system, that like most other data systems, is bound to have glitches during startup, suggests that opponents of data collection do not take bias in policing seriously. Wisconsin residents from across Wisconsin during a series of listening sessions in late 2009 told of their well-founded concerns. Wisconsin law enforcement officials, community leaders, and national experts were involved in the development of the new system for the Wisconsin Office of Justice Assistance. If the Senate votes to repeal traffic stop data collection, it will send the wrong message. Rather than being problem solvers, they will be moving against the mainstream of law enforcement professionals nationwide who are committed to eliminating bias in policing.

Privacy Rights: Selling a Book to a Resale Shop in Greenfield? "Say Cheese!"

14 Sep

The City of Greenfield Common Council approved a ordinance in April that puts the civil liberties of sellers of books and CDs to resale shops in jeopardy. While it may be well-intentioned, Greenfield’s ordinance (PDF) threatens the privacy rights of anyone trying to sell a long list of used items, including books and CDs, at commercial, resale establishments.

Common Council resolution No. 2695 re-wrote the pawnbrokers’ ordinance. It requires all types of secondhand article dealers to electronically record information in a database about used items and the people who sold the items to the store. The stores would then have to report this information daily to the Greenfield Police. And most troubling from a civil liberties perspective, the merchants have to take photographs of the seller and provide them to police as well.

The ACLU of Wisconsin is concerned that the new ordinance treats all sellers as potential criminals even though there is no particular suspicion that they have done anything wrong and there apparently is little, if any, evidence that the items they are selling (like used books, exercise equipment or baby clothes) are items that are typically “fenced.” It is especially troubling that “expressive materials,” such as used books or films on DVD or video, when sold will result in a record of the sellers’ tastes and opinions.

The Greenfield Common Council is likely to take another look at this new ordinance as soon as the Tuesday, September 21, 2010 meeting at 7:00 p.m. Check the council’s online calendar for the meeting’s agenda and location. Alders have heard complaints from area businesses and need to hear from residents about why this ordinance is too broad to implement.

For residents of Greenfield, please contact Mayor Michael Neitzke and your Council member to encourage them to amend the ordinance so that it will not threaten civil liberties. The City Clerk’s Office can provide you with the name of your alderperson and their contact information. Contact the City’s Clerk’s Office at 414-329-5219. You can find a complete listing of alderpersons online.

Email us at liberty@aclu-wi.orgif you have contacted your alder and he or she is willing to fix this overboard and intrusive ordinance.