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ELON – The American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) today announced the successful resolution of a federal lawsuit filed on behalf of John W. Paylor, a resident of Elon and a 55-year-old grandfather who was shot twice with a Taser by Elon police officers on June 18, 2006. The officers had surrounded the home of Mr. Paylor in order to serve him with a misdemeanor arrest warrant for using profanity on a public highway and for reckless driving. A videotape of the incident shows that Mr. Paylor was unarmed, in his underwear, and presented no threat to the officers. Nevertheless, an Elon police officer shot Mr. Paylor with a Taser, causing him to fall from his porch. Then, while Mr. Paylor was lying on the ground, unable to move from the shock of being tased and from the fall down his steps, the officer tased him a second time. Mr. Paylor has sustained permanent physical scarring from the incident. The ACLU-NCLF filed a lawsuit against the Elon Police Department and the individual Elon police officers involved on behalf of Mr. Paylor for excessive use of force in March 2009.    

A settlement agreement was finalized and executed this morning, and cooperating attorneys for the ACLU-NCLF have filed papers in court ending the lawsuit. Under the terms of the settlement agreement, the Elon Police Department will implement measures designed to prevent excessive and unnecessary use of Tasers in the future. In particular, Elon police officers will undergo improved annual training on a new Taser policy and on Elon's more general use-of-force policy.  Elon's new Taser policy must be consistent with policies in place in other North Carolina localities that include protections the ACLU believes are important to safeguard against excessive use of Tasers. For example, these policies prevent the use of Tasers against individuals, such as Mr. Paylor, who are not actively resisting officers. These policies also prohibit the use of Tasers against individuals, such as Mr. Paylor, who could potentially receive a secondary injury resulting from falling off an elevated location, and they also limit the number of times an individual can be tased.  Other settlement terms include the following: (1) the officer who tased Mr. Paylor will undergo additional use-of-force and Taser training at the North Carolina Justice Academy; and (2) the Elon Police Chief will instruct all officers that anyone with a personal interest relating to the subject of a misdemeanor warrant shall refrain from serving such warrant in person, unless safety or exigent circumstances require that person to be present. Additionally, the Elon Police Department made a $50,000 settlement payment to Mr. Paylor for his physical, emotional and constitutional injuries.

"I am happy with this outcome," said John Paylor. "What these officers did to me was wrong, and my hope is that this settlement will prevent others from having to suffer what I suffered at the hands of Elon police."

The lawsuit named as defendants certain individual police officers of the Elon Police Department, including Officer Harold T. Dunn, and contended that the officer used his Taser to retaliate against Mr. Paylor for a verbal exchange that occurred between him and Mr. Paylor the day before. The lawsuit further alleged that the other officers who were present failed to intervene to stop Officer Dunn's unlawful actions and therefore likewise violated Mr. Paylor's constitutional right to be free from excessive force. Finally, the lawsuit contended that the Town of Elon bears responsibility for its failure to properly train its officers in the use of Tasers and for a pattern and practice of permitting its police officers to employ Tasers in an excessive and reckless manner. After the lawsuit was filed, other Elon residents came forward and described instances in which they too had been tased unnecessarily by the Elon Police Department.

"We are happy with the settlement, as this was a flagrant abuse of authority by members of the Elon Police Department," said attorney Mark J. Prak, Cooperating Attorney for the ACLU-NCLF, who represented Mr. Paylor. "John Paylor did nothing to deserve this treatment as the police videotape clearly demonstrates. This was a case of an officer abusing his position as a police officer to satisfy his own ego."

The ACLU-NCLF is a founding member of the North Carolina Taser Safety Project, a coalition of nonprofit organizations advocating for the proper use of Tasers by law enforcement and for better training for officers on the weapons' potential risks. These risks are especially pronounced when used on certain vulnerable populations, such as children, the elderly, the disabled, obviously pregnant women, and people in certain situations that place them at greater risk of harm, such as people standing atop a flight of stairs – as Mr. Paylor was here – who are at risk of injury from falling if shot with a Taser. The Taser Safety Project produced a report in 2008 which can be found online at http://acluofnc.org/files/NotThereYet.pdf.
 
"Tasers are becoming increasingly common in North Carolina and across the country," said Katy Parker, Legal Director for the ACLU-NCLF. "It is important that as officers employ these potentially deadly weapons, they do so only when necessary and that they exercise restraint. These weapons are not toys."

Mr. Paylor was represented by Mark J. Prak, Charles E. Coble and Charles F. Marshall of Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. in Raleigh, North Carolina, and C. Scott Holmes of Brock, Payne & Meece, P.A. in Durham, North Carolina, as Cooperating Attorneys for the ACLU of North Carolina Legal Foundation, as well as by Katherine Lewis Parker, Legal Director of the ACLU of North Carolina Legal Foundation. A copy of the settlement agreement is available upon request.

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SIOUX FALLS, SD – The American Civil Liberties Union filed an amended class action lawsuit in federal court today to restore the voting rights of American Indians who were illegally disfranchised in the 2008 presidential election. The lawsuit was filed in the U.S. District Court for the Western District of South Dakota on behalf of Kim Colhoff, Eileen Janis and others, who attempted to vote in the election but were improperly removed from the voter rolls due to felony convictions. Because state law only disfranchises individuals sentenced to prison and both women were just sentenced to probation, election officials unlawfully took away their voting rights.

"Felony disfranchisement laws in South Dakota have a disproportionate impact on American Indians, who represent the majority of those convicted of felonies at the federal level," said Robert Doody, Executive Director of the ACLU, South Dakota Chapter. "Worse still, it's clear that confusion regarding the South Dakota felony disfranchisement laws has resulted in legitimate voters, even those who haven't been incarcerated for felony convictions, being purged from the rolls or denied the ability to register to vote or cast their ballots."

The lawsuit charges that South Dakota officials' illegal disfranchisement of individuals with felony convictions has had a disproportionate and negative impact on American Indian voters who are overly represented in South Dakota's criminal justice system. The lawsuit also contends that the removal of individuals' names from the state and county voter registration lists based on felony convictions for which they were sentenced only to probation violates their rights to equal protection and due process under the federal and state constitutions, the Help America Vote Act, the National Voter Registration Act and Sections 2 and 5 of the Voting Rights Act. The lawsuit names Secretary of State Chris Nelson, Shannon County Auditor Sue Ganje and members of the state board of elections as defendants.

The ACLU originally filed the lawsuit in February 2009 on behalf of Colhoff and Janis. The amended lawsuit filed today represents a class of individuals in South Dakota with felony convictions who were denied the right to vote despite the fact that they were never incarcerated.

Colhoff and Janis, both residents of Pine Ridge, South Dakota, registered to vote for the first time in 1974 and 1984, respectively, and remained on the voter rolls until early 2008, after they were each convicted of a felony offense and sentenced to five years probation but no jail time. Despite the fact that South Dakota only disfranchises those sentenced to prison, Colhoff and Janis were removed from the voter rolls without any notice and denied the right to vote at their polling places when they attempted to vote in the 2008 presidential election. In front of several other voters, election officials refused to allow Janis to cast either a regular or provisional ballot.

"I will never get the chance to go back and make my voice heard," said Janis. "It deeply disturbs me that my right to vote was taken away because of administrative incompetence. No one should be denied a ballot just because election workers don't understand the rules. It's really hard not feeling like a second-class citizen when one of my most fundamental rights has been stolen from me."

"What happened to our clients represents the tragedy that occurs when election officials do not know how to administer the law," said Nancy Abudu, senior staff attorney with the ACLU Voting Rights Project. "Not only did election administrators take away their constitutional rights, but they robbed them of the opportunity to participate in this historic election."

Attorneys on this case are Abudu, Bryan Sells and Laughlin McDonald of the ACLU Voting Rights Project; Doody of the ACLU, South Dakota Chapter; and cooperating attorney Patrick Duffy.

A copy of today's proposed second amended complaint in Janis v. Nelson is available at: www.aclu.org/racial-justice-voting-rights/janis-v-nelson-second-amended-complaint-pending-court-approval-requesti

An ACLU report providing a historical overview of systemic discrimination against American Indians, limiting their ability to participate in local, state and national elections, can be found at: www.aclu.org/votingrights/minority/41203pub20090930.html

More information about the ACLU Voting Rights Project is available at: www.votingrights.org

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SAN FRANCISCO – The American Civil Liberties Union sent a letter to Fresno City College today demanding that the school ensure that all its health science classes teach unbiased and medically accurate information. According to students at the college, lectures by Professor Dr. Bradley Lopez, who teaches an introductory health class, often present religiously-based and anti-gay views as “science” or “fact.”

“I feel very let down by my school,” said Jacqui Mahaffey, a 24-year-old student who took Professor Lopez’s class. “I signed up for health science because I was interested in the subject, but what I got was hateful lecturing based on Professor Lopez’s personal beliefs. I am in school to learn, not to be indoctrinated with one professor’s religious views and anti-gay beliefs.”

The ACLU letter includes several examples of Professor Lopez teaching sectarian views and personal bias as “fact.” In recent lectures, Professor Lopez:

• Presented a slide listing “homosexual facts,” including that homosexuality is a “biological misapplication of human sexuality” and said that the “recommended treatment” is “psychological counseling” or “hormone supplements.”
• Presented LGBT people as a burden on and/or threat to society, claiming, for example, that anything but a heterosexual union provides a “one-sided foundation for raising children.”
• Presented bible passages as “empirical” evidence that life begins at conception in support of his assertion that abortion is murder and “the leading cause of death in this country” (because there are over a million abortions a year).
• Followed a slide on climate change in a presentation on “environmental health” with a slide containing a Biblical quote about the world ending in fire, and said “that is the real global warming we should be worried about.”
• Repeatedly referenced the Bible and used it as a teaching tool, for example assigning as homework a question as to Jesus’ genetic makeup.

“The college class room of a state school should be a welcoming environment for all students, and courses, especially health courses, should be based on objective and medically accurate information, not religiously-based bias,” said Elizabeth Gill, a staff attorney with the ACLU of Northern California. “While Professor Lopez is free to talk about his religious beliefs outside of the classroom, Fresno City College has an obligation to protect its students from religious indoctrination and anti-gay bias presented as ‘science’ or ‘fact.’ Professor Lopez’s health class fails students in both regards.”

The letter sent by the ACLU charges that because the classes are being taught at a publicly funded college, Professor Lopez’s lectures violate federal and state constitutional protections guaranteeing the separation of church and state. To satisfy its legal obligation to combat anti-gay bias, the letter also urges the school to mandate accurate and unbiased health instruction.

The ACLU’s letter, which is available here, gives the college until February 15 to explain how it intends to address the problem.

ACLU Says More Information Needed On Policy That Grants President Power To Target Americans Abroad

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NEW YORK – Director of National Intelligence Dennis Blair acknowledged in a congressional hearing on Wednesday that the U.S. may, with executive approval, deliberately target and kill U.S. citizens who are suspected of being involved in terrorism. The American Civil Liberties Union expressed serious concern about the lack of public information about the policy and the potential for abuse of unchecked executive power.
 
The following can be attributed to Ben Wizner, staff attorney with the ACLU National Security Project:

"It is alarming to hear that the Obama administration is asserting that the president can authorize the assassination of Americans abroad, even if they are far from any battlefield and may have never taken up arms against the U.S., but have only been deemed to constitute an unspecified 'threat.' This is the most recent consequence of a troublingly overbroad interpretation of Congress's 2001 Authorization for the Use of Military Force. This sweeping interpretation envisions a war that knows no borders or definable time limits and targets an enemy that the government has refused to define in public. This policy is particularly troubling since it targets U.S. citizens, who retain their constitutional right to due process even when abroad."

The following can be attributed to Jonathan Manes, legal fellow with the ACLU National Security Project:

"The American people have a right to know more about a policy that grants the president the unilateral authority to approve the killing of U.S. citizens. It is essential that more information be made available about who can be targeted for killing, who makes these decisions and on the basis of how much evidence, and whether lethal force can be used if arrest or capture are possible or have not been attempted. While there is little doubt that a U.S. citizen fighting for an enemy army could lawfully be killed on the battlefield in the course of fighting, this policy goes far beyond the ordinary parameters of battlefield combat. It appears to allow for the deliberate targeted killing of American citizens far away from any active hostilities, as long as the executive branch determines unilaterally that they meet a secret definition of who the enemy is."

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SAN FRANCISCO – The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights today filed a friend-of-the-court brief in Perry v. Schwarzeneggerurging Judge Vaughn Walker to strike down Proposition 8 as unconstitutional.

The following is a statement by James Esseks, Director of the Lesbian Gay Bisexual Transgender Project of the ACLU:

“The Constitution of the United States demands that all Americans be treated equally. Proposition 8, which says same-sex couples may not marry, plainly does not do that. It is unconstitutional, and the court should strike it down as plaintiffs ask.
 
“Prop 8 is deeply offensive to the American ideal of equality. The laws of California are clear that same-sex couples deserve the same treatment under the law as heterosexual couples. Prop 8 calls same-sex couples "partnered" instead of "married" simply to say same-sex couples are not as good. But the Constitution doesn't allow the law to demean anyone like that.  The court should strike it down.”
 

A copy of the brief filed today is available here.

Bill Mirrors Amendment Defeated Last Year

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WASHINGTON – Late Tuesday, Senator Lindsey Graham (R-SC) introduced a bill that would prohibit the use of Justice Department funds to prosecute the accused 9/11 plotters in federal court. Representative Frank Wolf (R-VA) introduced a companion bill in the House that would do the same thing.

Senator Graham attempted to attach a nearly identical amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act in November. That amendment was defeated by a vote of 54-45. The cosponsors of the bill introduced in the Senate today were the same senators who voted for Graham's failed amendment last fall. The proposal has not picked up any additional supporters.

Both the Senate and House bills would obstruct the Obama administration's plans to prosecute the 9/11 suspects in federal court, reopening the possibility that they would be tried in the discredited military commissions system instead. The American Civil Liberties Union strongly believes that the appropriate place to try terrorism suspects is in federal criminal court, and that the military commissions are a second class system of justice which should be shut down for good.

The following can be attributed to Christopher Anders, ACLU Senior Legislative Counsel:

"This is a case of déjà vu, with the same senators introducing the same legislation that was rejected by the Senate less than three months ago. The Senate already rejected this proposal, and there is no reason to play out the same scenario over and over again. Congress should stop trying to interfere with criminal prosecutions and let experienced Justice Department prosecutors go forward with criminal trials of the alleged September 11 plotters. The U.S. has successfully tried and convicted more than 200 international defendants on terrorism crimes in federal courts. We see no reason for Congress not to dismiss these bills as easily as Senator Graham's amendment was dismissed last year."

The following can be attributed to Ben Wizner, staff attorney with the ACLU National Security Project:

"Despite pressure from Congress and other sources, the Obama administration should stay the course and try the 9/11 suspects in federal courts, where they belong. The administration made the correct decision when it announced that the 9/11 suspects would be brought to justice in our federal courts, and reversing course due to political pressure would be a miscarriage of American justice. The Constitution does not include an on-off switch. Terrorists are criminals, not warriors, and the U.S. should try all terrorism cases in federal courts where they belong.

"Our federal courts are more than capable of handling sensitive security issues while preserving American values and legal standards. On the other hand, even with recent improvements, the military commission system is designed to ensure convictions rather than fair trials, and still fails to ensure basic due process guaranteed by U.S. and international law."

Maryland Court Orders State Police To Turn Over Racial Profiling Records

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ANNAPOLIS, MD – The Maryland Court of Special Appeals today ordered the Maryland State Police (MSP) to release records of investigations into racial profiling complaints against police personnel. The decision by the full court overrules part of a decision by the Circuit Court of Baltimore County concluding that these records are "personnel records" under the Maryland Public Information Act (MPIA) and exempt from disclosure.

"Despite ongoing efforts to combat it, there can be no denying that racial profiling by police continues to persist in communities across the nation," said Reginald T. Shuford, senior staff attorney with the American Civil Liberties Union's Racial Justice Program. "Hopefully today's decision will set a powerful precedent for transparency that will enable any police department that illegally and unconstitutionally targets people of color to be held accountable."

The ruling comes in a lawsuit filed on behalf of the Maryland State Conference of NAACP Branches (NAACP) by the ACLU charging the MSP with violating the MPIA by improperly withholding documents showing whether it has meaningfully investigated complaints of racial profiling in the wake of a federal consent decree in the ACLU's "Driving While Black" litigation.

"The Court of Special Appeals has reinforced the fundamental right of the public to information that allows them to hold government agencies accountable and ensure that bad public policies, such as racial profiling, are addressed and not perpetuated," said Deborah Jeon, Legal Director for the ACLU of Maryland.

In 2003, the NAACP and the MSP entered into a consent decree stemming from racial profiling litigation initiated in the early 1990s. Despite the consent decree, however, there continued to be complaints from African-American motorists alleging racial profiling, and the data gathered continued to show large disparities between whites and non-whites in traffic stops and searches by the MSP. People of color were stopped and searched much more often, even though the MSP did not find drugs or other contraband on them any more frequently than when searching whites.

A key provision of the 2003 consent decree was an agreement by MSP to make the process of filing racial profiling complaints more user-friendly for motorists. MSP also agreed to thoroughly investigate all complaints.

"The ruling handed down by the Court of Special Appeals today is a true victory for the Maryland State Conference NAACP, the ACLU and for the citizens of Maryland," said Gerald Stansbury, president of the Maryland State Conference of NAACP Branches. "There have been reports of racial profiling all over the country, and this ruling will give us the ability to determine if and when reports and complaints of racial profiling are thoroughly investigated and handled appropriately."

Data collected in Maryland since 2003 shows that racial disparities regarding who is being searched by the MSP on Interstate 95 persist. Data from 2008 shows that minorities were about 70 percent of those searched on I-95, while whites comprised 30 percent of those searched. These percentages are almost exactly the same as for 2002, the year prior to the 2003 Consent Decree.

Since 2003, approximately 100 official complaints alleging racial profiling have been filed by minority motorists. The MSP has confirmed that not a single one of these complaints has been sustained following the requisite internal investigation. Thus, since 2003, no MSP trooper has ever been found to have engaged in racial profiling, and no disciplinary action has ever been taken against a trooper for racial profiling.

In February 2007, the NAACP, represented by Venable LLP and the ACLU, filed a request under the MPIA to obtain the investigative records created in connection with the racial profiling complaints filed since 2003. The NAACP asked for the records with all information identifying the motorists and the troopers redacted. The point was not to target particular troopers, but rather to see whether the MSP was truly investigating the complaints and taking seriously its responsibility to eliminate racial profiling by its troopers.

The MSP refused to turn over the documents, even in redacted form, saying that they were "personnel records" exempt from disclosure under the MPIA. In September 2007, the NAACP filed suit, and in June 2008, Baltimore County Circuit Court Judge Timothy Martin ruled that the records should be disclosed in redacted form, and that doing so would not violate the personnel records exemption of the MPIA. Rather than turn over the records, the MSP appealed the ruling. In the appeal, the Attorney General, on behalf of the MSP, took the position that the investigative records are "personnel records" exempt from disclosure and that they may never be disclosed – even in redacted form.

"This is not simply a victory for the NAACP, it is a victory for the principle of open government," said Seth Rosenthal of the law firm Venable LLP. "The court correctly found that the law requires, rather than prohibits, the state police to disclose to the public exactly what it does to investigate complaints of racial profiling by its troopers."

Attorneys on the case include Shuford of the ACLU Racial Justice Program, Jeon of the ACLU of Maryland and Rosenthal, Robert Wilkins and Brian Schwalb of the law firm Venable, LLP.

A copy of today's decision is available online at: www.aclu.org/racial-justice/maryland-state-police-department-v-maryland-state-conference-naacp-branches-decision 

Additional information about the ACLU Racial Justice Program is available online at: www.aclu.org/racialjustice

First Hearing In Federal Court About The Patentability Of Human Genes

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NEW YORK – In the first hearing in federal court about the patentability of human genes, the American Civil Liberties Union and the Public Patent Foundation (PUBPAT), a not-for-profit organization affiliated with Benjamin N. Cardozo School of Law, asked the court today to rule that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid. The groups charge that the patents stifle diagnostic testing and research that could lead to cures and that they limit women's options regarding their medical care.

"Allowing patents on genetic material imposes real and severe limits on scientific research, learning and the free flow of information," said Chris Hansen, an attorney with the ACLU.

The lawsuit, Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al., was filed on May 12, 2009 in the U.S. District Court for the Southern District of New York on behalf of breast cancer and women's health groups, individual women and scientific associations representing approximately 150,000 researchers, pathologists and laboratory professionals. The lawsuit was filed against the U.S. Patent and Trademark Office, as well as Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the genes, BRCA1 and BRCA2. The lawsuit charges that patents on human genes violate the First Amendment and patent law because genes are "products of nature" and therefore can't be patented.

"Patenting human genes is like patenting e=mc2, blood or air," said Hansen.

"The patent system was designed to reward and encourage human ingenuity. But genes are naturally-occurring parts of our bodies, not inventions," said Daniel B. Ravicher, Executive Director of PUBPAT and co-counsel in the lawsuit. "Patents on human genes should never have been granted in the first place. Genes are identified, not invented."

Mutations along the BRCA genes are responsible for most cases of hereditary breast and ovarian cancers. Many women with a history of breast and ovarian cancer in their families opt to undergo genetic testing to determine if they have the mutations on their BRCA genes that put them at increased risk for these diseases. This information is critical in helping these women decide on a plan of treatment or prevention, including increased surveillance or preventive mastectomies or ovary removal.

The patents granted to Myriad give the company the exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes and to prevent any researcher from even looking at the genes without first getting permission from Myriad. Myriad's monopoly on the BRCA genes makes it impossible for women to access alternate tests or get a second opinion about their results and allows Myriad to charge a high rate for their tests.

Because the ACLU's lawsuit challenges the whole notion of gene patenting, its outcome could have far reaching effects beyond the patents on the BRCA genes. Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer's disease, muscular dystrophy, colon cancer, asthma and many other illnesses.

"The patents on the BRCA genes restrict women's access to genetic testing and interfere with their medical care," said Sandra Park, staff attorney with the ACLU Women's Rights Project. "We hope that at the conclusion of this lawsuit, the court declares the patents unconstitutional and invalid."
 
Several major organizations, including the American Medical Association, the March of Dimes and the American Society for Human Genetics, filed friend-of-the-court briefs in support of the ACLU and PUBPAT's case. Prominent medical researchers and academics, including Nobel Prize winners Joseph Stiglitz and Sir John Sulston, have also stated their support.

Today's argument is on the ACLU's motion for summary judgment, asking the court to rule in favor of the ACLU's clients without a trial, and on the defendants' cross motions.

Attorneys on the case include Hansen and Aden Fine of the ACLU First Amendment Working Group; Park and Lenora Lapidus of the ACLU Women's Rights Project; and Ravicher and Sabrina Hassan of PUBPAT. Tania Simoncelli, the ACLU's science advisor, provides expert guidance on the case.

More information about the case, including an ACLU video featuring breast cancer patients, legal documents and plaintiff and supporter statements and declarations can be found online at: www.aclu.org/brca

Defense Secretary and Chairman of the Joint Chiefs Also Announce Plan to Make Short-Term Changes in Enforcement

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WASHINGTON - During an historic hearing today in the Senate Armed Services Committee, Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff, Admiral Michael G. Mullen, called for an end to the discriminatory "Don't Ask, Don't Tell" policy. The policy, passed by Congress and signed by President Clinton in 1993, states that openly lesbian and gay individuals pose "an unacceptable threat to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability," and prevents gay and lesbian individuals from serving openly in the military.