A settlement agreement has been proposed in a federal civil rights lawsuit filed by the American Civil Liberties Union last year against the Whatcom County Jail and the Whatcom County Sheriff’s Office, according to a press release sent Tuesday from ACLU’s Washington chapter.
Filed in U.S. District Court for the Western District of Washington, the ACLU’s lawsuit, Kortlever v. Whatcom County et. al, challenged Whatcom County’s refusal to provide people access to MAT even though it provides other clinically appropriate medications to inmates. Singling out a group of people because of their disability and denying them access to medical services to which they would otherwise be entitled is prohibited under the Americans with Disabilities Act. Whatcom County’s willingness to change its policies means that the court will not have to decide whether the previous policy was unlawful.
The lawsuit, filed in June 2018, alleged the jail had a policy for giving medication, such as buprenorphine (Suboxone or Subutex) or methadone, to pregnant women suffering from opioid use disorder, but had no policy for non-pregnant individuals, essentially forcing them to go into withdrawal once they were booked, according to court records.
Under the settlement, the Whatcom County Jail now will provide people in the jail with medication-assisted treatment (MAT) services to treat opioid use disorder, according to a press release sent Tuesday from the sheriff’s office.
Opioid use disorder is classified as a disability under the Americans with Disabilities Act, and also is a recognized substance use disorder. A person qualifies as having opioid use disorder if they meet two or more criteria that reflect impaired health function over a 12-month period. The disorder is a chronic condition and is often accompanied by changes to brain chemistry, the ACLU release stated.
Please contact my office if you, a friend or family member are in jail and face criminal charges. Being incarcerated brings a considerable strain on family, mental health, employment and quality of life. A competent defense attorney can argue a motion to release the defendant or reduce bail. For more information, please read my Legal Guide titled, “Making Bail.”
Great article by of Curbed describes how the Ninth Circuit’s Martin v. City of Boise, held that city law enforcement cannot arrest or punish people for sleeping on public property unless they provide adequate and relatively accessible indoor accommodations.
The Martin case, which originated in 2009 when six residents sued the city, argued that laws against sleeping in public and qualifying that action as Disorderly Conduct were unconstitutional, specifically discussed reasonable and accessible spots for everyone. That means having beds accessible for the disabled and for pregnant women and families. An important argument in the Martin case concerned faith-based services that required those staying there to pray in a certain manner. Judges declared spots that coerced religious observation were not accessible to all.
The April 1 decision by the Ninth Circuit Court of Appeals, which covers nine states in the western U.S. including California and Washington, rejects a petition to challenge a September ruling on the case. The 2-1 decision by a panel of three judges means that the earlier decision by the court stands, an affirmation of the theory that criminalizing people for camping of sleeping in public without any place to go is illegal.
“The government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”
~Ninth Circuit Court of Appeals
The ruling means unless there is enough shelter space for the homeless population of a city such as Seattle or San Francisco, city officials can’t enforce anti-vagrancy laws or prohibitions against camping in public parks or sidewalks. The court can’t force cities to build adequate shelter space or homeless housing, but it can make it unconstitutional for them to criminalize homelessness until that burden has been met.
Reporter Patrick Sisson wrote that Eve Garrow, a homelessness policy analyst and advocate for the American Civil Liberties Union (ACLU), expects that advocacy groups such as her own will soon engage in proactive public education campaigns to ensure municipalities are aware of the Martin decision and the group’s interpretation of the court ruling.
“I do believe if cities and counties continue to enforce in a way that’s now clearly unconstitutional, advocacy organizations will engage in litigation to protect the civil rights of these people,” she says.
The legal reasoning grew out of an interpretation of the Eighth Amendment and its prohibition on cruel and unusual punishment, according to Ms. Garrow.
“You’re criminalizing someone for behavior that’s unavoidable,” she says. “Everyone has to sleep.” In effect, she says, municipal laws that ban sleeping in public are making it illegal to be poor.
Steve Berg, vice president of programs and policy for the National Alliance to End Homelessness, says the decision has gotten a lot of attention, and will hopefully accelerate the movement towards more supportive housing and services.
“There are still too many people in local governments who think the right answer to homelessness is arresting people,” he says.
Good decision, Ninth Circuit.
Excellent article by Steven Robert Allen , Director of Public Policy, ACLU of New Mexico discusses how a federal judge declared “Policing for Profit” – better known as “Civil Asset Forfeiture” – unconstitutional.
For those who don’t know, Civil Asset Forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.
“With civil asset forfeiture, police literally accuse your stuff of a crime, and you as the owner have to prove that your stuff is innocent.” – Steven Robert Allen, ACLU
Here’s an example: In 2010 Stephen Skinner and his son Jonathan, both African-American, were on a road trip to Las Vegas, Nevada, for a vacation when they were pulled over by New Mexico State Police for going 5 mph over the speed limit. The trooper searched their rental car and found several thousand dollars in cash and coins in their luggage that the two men had set aside for gaming at the casinos. The trooper called Skinner, then in his late 50s, “boy” and released him with a warning that “it’s not over.”
And sure enough, it wasn’t.
As they passed through Albuquerque, police and federal agents pulled them over on a pretext once again, went straight to their luggage, and confiscated their cash with no justification other than the racist assumption that two black men traveling with a big wad of cash must have come by it illegally. Neither Stephen or Jonathan were ever actually accused of a crime, much less convicted. Yet now the cops had their vacation money, and this money grab was perfectly legal.
In his article, Mr. Allen writes that most people who have property seized in this manner give it up as lost. The cost of hiring an attorney to argue before a judge that your property is “innocent” or, in other words, was not criminally acquired or used in the commission of a crime, often exceeds the value of the property. This is big business for police departments across the United States, who rely on these seized assets to pad their budgets. The Institute for Justice, a libertarian public interest law firm, estimates that in 2014 alone the Department of Justice took in $4.5 billion in forfeited assets. The assets taken in annually by local and state police departments are doubtless even higher.
In 2015, the ACLU of New Mexico, in collaboration with the Institute for Justice, the Drug Policy Alliance, and the Rio Grande Foundation, helped pass a bill that abolished civil asset forfeiture, requiring police to obtain a criminal conviction in court before they can take a person’s property. The bill also requires that any forfeited assets must go into a state general fund to reduce the profit motive inherent in this law enforcement practice. The bill passed unanimously, and New Mexico now has the strongest protections against civil asset forfeiture in the nation.
One person, Arlene Harjo, finally filed a lawsuit against the department with the help of the Institute for Justice, and, last week, she won. A federal judge handed down a landmark ruling that Albuquerque’s vehicle seizure program violates residents’ constitutional rights by taking their property before they’ve been convicted of a crime.
“This is a major moment in the fight against the unjust practice of civil asset forfeiture,” writes Allen. “Not only will New Mexico law enforcement agencies be forced to comply with our state prohibition against the practice, but this victory establishes an important legal precedent that victims of civil asset forfeiture can use to fight back nationwide.”
And indeed, the problem is not just in New Mexico. In 2015, the ACLU sued an Arizona county attorney and county sheriff challenging that state’s civil asset forfeiture laws, which create perverse and unconstitutional incentives for law enforcement to build multimillion-dollar slush funds that they get to control.
My opinion? This is excellent work from the ACLU and a wonderful decision from the federal courts. More than anything, this ruling out of New Mexico is a powerful reminder that brave individuals can still take a stand against systems of injustice, crack their foundations, and bring them tumbling to the ground. All it takes is a few people like Stephen Skinner and Arlene Harjo who say, “Enough. Not today. No more.”
Excellent article by Denver Pratt of the Bellingham Herald says the American Civil Liberties Union (ACLU) filed a federal civil rights lawsuit Wednesday against the Whatcom County Jail and the Whatcom County Sheriff’s Office for allegedly denying inmates with opioid use disorder access to medication.
The lawsuit filed in Seattle in the U.S. District Court for the Western District of Washington alleges the jail’s policy of refusing to provide access to medication assisted treatment to treat opioid addiction violates the Americans with Disabilities Act (ADA).
Pratt reports that Opioid Use Disorder is classified as a disability under the ADA, and is also a recognized substance use disorder. A person qualifies as having opioid use disorder if they meet two or more criteria that reflect impaired health function over a 12-month period.
The lawsuit alleges that the jail has a policy for giving medication, such as buprenorphine (Suboxone or Subutex), or methadone, to pregnant women suffering from opioid use disorder, but has no policy for non-pregnant individuals, forcing them to go into withdrawal once they’re booked.
The lawsuit was brought on behalf of two inmates who were receiving medication assisted treatment before they became incarcerated. However, the ACLU is seeking class-action status for all non-pregnant people incarcerated who have Opioid Use Disorder.
“Defendants’ policy and practice of denying medications to treat opioid use disorder to non-pregnant individuals is both dangerous and discriminatory,” according to the complaint filed in the case.” It singles out a particularly vulnerable group of disabled people, forces them to suffer unnecessarily from painful opioid withdrawal, and subjects them to an increased risk of relapse and overdose death.”
Whatcom County Sheriff Bill Elfo said Thursday he believed several other jails in Washington state are under scrutiny by the ACLU for opioid treatment. He said the county had not been served with the lawsuit yet as of Thursday afternoon, but noted the ACLU has 20 days to do so.
Elfo said the 2019 opening of a new 32-bed crisis triage center for people suffering from mental health and substance use disorders will provide an alternative to taking people who use opioids to jail, and give them access to treatment.
“This is something that’s been asked for for 20 years. I’m glad it’s something that’s finally on the horizon,” he said.
The project will expand the current Crisis Triage Center and will be on Division Street in Bellingham. It will cost up to an estimated $9.5 million.
First, kudos to Ms. Pratt for her excellent and timely reporting.
Second, lawsuits like this reveal the pressing need for Whatcom County to construct a new jail. A larger facility with upgraded services would not only better serve the needs of the incarcerated defendants, but also the jail staff and police officers who work there on a daily basis.
I’ve heard the arguments against a new jail. Clearly – and unfortunately – the community has voted down numerous proposals. What most people don’t understand, however, is that the current jail is decrepit, unsafe and virtually inhumane. As a result, we see riots and suicides happen at the jail with unsettling frequency.
Good luck to the ACLU. Hopefully, they’ll be instrumental toward making positive changes happen for the inmates and hardworking jail staff here in Whatcom County.
Excellent article by Agatha Pacheco discusses how a birpartisan group of lawmakers is continuing to push for change in a law that legislators, civil-rights groups and others say disproportionately burdens the poor and communities of color.
Senate Bill 6189, which is sponsored by Sen. Joe Fain, R-Auburn, would decriminalize the charge of third-degree driving with a suspended license (DWLS-III), a misdemeanor. Under current state law, those caught driving with a suspended license due to unpaid traffic tickets or because they didn’t show up for court hearings can be jailed.
The bill has been referred to the Senate’s Law and Justice Committee but not yet scheduled for a hearing. Sen. Jamie Pederson, D-Seattle, who chairs the committee, said he agreed the issue is important, but with a short legislative session and many bills to review, he was hesitant to say if he will schedule a hearing on a proposal that in the past hasn’t been successful.
According to a 2017 report by the American Civil Liberties Union of Washington, Driving While License Suspended Third Degree is the state’s most commonly charged crime. SB 6189 would remove its misdemeanor status and make the charge a traffic infraction with a $250 penalty. The penalty would be reduced to $50 if a defendant could show he or she got the license reinstated.
According to Pacheco, unpaid traffic infractions can pile up quickly, with some people accumulating thousands of dollars in fines that must be paid off to reinstate their license, said Rick Eichstaedt, executive director of the Center for Justice, which operates a program in Spokane that helps people reinstate a suspended license.
The Washington Association of Sheriffs and Police Chiefs has opposed previous efforts to decriminalize DWLS-III, but Executive Director Steve Strachan said the organization recognizes the financial burden the law has caused. The association wants to work with legislators to find a balanced solution to DWLS-III where accountability still exists and abuse of the system is discouraged, Strachan said.
Fain, the Auburn lawmaker, previously worked in the King County Prosecuting Attorney’s Office and said he witnessed a deluge of DWLS-III cases that made it difficult to focus on more important cases, such as drunken driving.
In 2009, in conjunction with King County District Court, the prosecutor’s office stopped charging stand-alone DWLS-III cases, but Fain said prosecutors still spent a lot of time handling such cases tied to other crimes.
“I want to spend more of my time on things that will actually improve public safety,” Fain said. “I think individuals, especially lower-income people, living paycheck to paycheck need to be able to go to work and pay their fines,” Fain said, “so you want to make sure you’re not inhibiting a person’s ability to comply with the law.”
Pacheco correctly states that DWLS-III charges are the least serious of the DWLS charges. First- and second-degree driving with a suspended license are charges aimed at habitual offenders and those who lost their licenses due to drunken-driving or reckless-driving convictions.
Co-sponsor Sen. David Frockt, D-Seattle, said fines and the possibility of jail time under the current law effectively criminalize poverty and hurt communities of color.
“Putting people into this cycle where people get fined and they can’t pay and get further fined,” said Frockt, “there’s other alternatives.”
Pacheco says that if a measure is passed, Washington would join a handful of states that have decriminalized driving with a suspended license, including Oregon, Wisconsin and Maine, according to the National Conference of State Legislatures.
In 1993, Senate Bill 1741 made driving with a suspended license due to unpaid traffic infractions a misdemeanor.
My opinion? I hope the legislature decriminalizes DWLS-III. These charges essentially hook people into the criminal justice system for failing to pay traffic fines. The charges also expose people to a search incident to arrest with the very real possibility of police finding illegal contraband which may lead to heavier charges. Also, a DWLS-III conviction makes it difficult for people to get to work and further holds back those working their way toward paying off fines and avoiding more fines or jail time. Please contact me if you, a friend or family member is charged with DWLS III.
“Under this statute, the State properly charged Gray for his actions. When he was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person. Gray is a “natural person” and therefore a person for purposes of the statute. He was also under the age of 18, making him a minor under the statute as well. He stated he was attracted to T.R., and when he sent the picture he included the phrase “Do u like it, babe?,” indicating an attempt to arouse the recipient. The picture he transmitted was, therefore, a visual depiction of a minor engaged in sexually explicit conduct because it was a picture of a minor’s genitals designed to sexually stimulate the viewer. This falls squarely within the statute’s plain meaning.”
“There is a long-standing and well-accepted rule that when a legislature enacts a criminal law to protect such a specific class, we cannot interpret that law to permit prosecution (and potential revictimization) of members of that protected class for their own exploitation—unless the legislature explicitly says so. The legislature did not say so here. Hence, the general rule applies,” said Justice McCloud. “Gray, the depicted minor, cannot be prosecuted under this statute for disseminating pictures of himself.”
According to Relyea, downtown business owners are telling city leaders they need help. They’re tired of people sleeping in the doorways of their buildings, lighting fires in their alcoves, and having to clean up after those who leave behind stolen bicycles, trash, feces and drug paraphernalia such as used needles.
That, and a rise in antisocial behavior and unseemly loitering, is making some people who visit and work in downtown Bellingham feel unsafe.
Relyea reports that Bellingham residents reported feeling less safe when walking alone downtown during the day and night than previously, according to a recent survey of residents’ views about issues facing the community. The March 12 deadly shooting in downtown also raised a great deal of concern about safety downtown.
According to Relyea, Bellingham Police Department statistics showed a nearly 2.5 percent increase in overall incidents from 2013 and 2016 in downtown – going from 3,688 to 3,778 responses that were both criminal and non-criminal in nature. For 2016 alone, 53 percent of the incidents police responded to in the downtown were non-criminal in nature.
Criminal incidents would be arrestable offenses such as assaults, robbery and rape. Non-criminal could include responding to people with mental problems, someone violating the sitting and lying ordinance, or someone who was drunk.
Relyea reports that business owners want to help those who want to be helped. This means opening a bigger shelter for the homeless, getting them into housing, finding them jobs and helping people struggling with mental health and addiction.
Bellingham Mayor Kelli Linville said prevention was important to her, and the city spends up to $450,000 a year toward such efforts, including for the Homeless Outreach Team, community paramedic and intensive case management.
An upcoming project called Whatcom GRACE (for Ground-Level Response and Coordinated Engagement) also could help, by reaching out to those being called “familiar faces” – people who tend to fall through the cracks over and over, and who have a number of needs such as housing, behavioral health and substance abuse. They’re also the ones who come into contact with a number of organizations.
Apparently, police believe it’s a safety issue to not have people blocking sidewalks where there are pedestrians. However, the ACLU and homeless advocates said such laws target people who are visibly poor and homeless, and could be unconstitutional.
“For some people, including myself, restricting and limiting people from sitting down is not a well-aimed tool. For one thing, sitting down is sometimes a perfectly fine and normal thing to do. In addition, our police tell me it is difficult to enforce and easy to avoid,” he said.
“For example, people can move just a little distance, such as where the alleyway or a driveway cuts through, and then they are technically not in violation because it is not a ‘sidewalk’ under the definition,” Lilliquist added. “It seems like a lot of work, and some hostility, to get at something that is not the heart of the problem.”
First, don’t criminalize homelessness. That’s not the answer, and only leads to violating people’s constitutional rights. Second, if anything, divert more resources to addressing mental health and substance abuse.
Interesting article by Claudia Rowe of the Seattle Times describes a report from the American Civil Liberties Union (ACLU) saying says that police officers patrolling school hallways brings significant costs to the learning environment and finances of our schools.
“We were surprised by the degree to which officers have almost unfettered ability to enforce in school discipline,” said Vanessa Hernandez, youth policy director at the ACLU who wrote the “Students Not Suspects” report. “That’s a pretty dangerous road to go down, to have student discipline in an educational environment handed to a law enforcement agent, and it really sends a troubling message to students about how we perceive them.” The advocacy organization examined data from the 2013-14 through 2015-16 school years in more than 100 districts.
Thirty years ago, few schools used police to respond to misbehavior. But in recent decades the number of officers patrolling the halls has ballooned — from fewer than 100 nationally in the late 1980s, to an estimated 17,000 today. Yet no state agency systematically tracks police in schools, or the impact on students. Most commonly, officers are contract employees who report to their police departments, not district administrators.
In Washington, Hernandez added, at least 3,400 kids were either arrested on campus or referred to law enforcement for prosecution during in the 2013-14 school year, which is the most recent data available.
In a time when state lawmakers are wrestling with a multibillion dollar hole in funding for education, schools are spending millions on police officers, the report found.
Seventeen districts pay the entire cost of their school police, covering salaries, benefits and even, in two cases, leasing patrol cars. On average, schools contribute about $62,000 annually for each full-time officer, and up to $125,000 at the high end.
Other approaches, like restorative justice and trauma-informed teaching, have been shown to reduce disciplinary incidents by addressing the underlying causes of misbehavior, and the ACLU suggests that money for police might be better spent on school psychologists, social workers or teaching assistants.
Yet momentum has moved in the opposite direction. Nationally, 24 percent of elementary schools and 42 percent of middle- and high schools routinely hire police officers, according to the report.
But not all schools have police officers. In high-poverty schools — whether urban or rural — police are a much more routine presence. In small-town Walla Walla, for example, the alternative school where 80 percent of kids are low-income, has an officer. But the regular comprehensive high school, where only 45 percent of students are low-income, does not. Even the tiny Liberty district, with about 450 students, has a police officer on staff, the ACLU found.
Apparently, the most commonly charged crime in Washington State – Driving While License Suspended in the Third Degree (DWLS III)- shouldn’t be a crime at all, the state chapter of the American Civil Liberties Union argues in a new report.
In “Driven to Fail: The High Cost of Washington’s Most Ineffective Crime – DWLS III” the report describes the costs of enforcing this law, explores how it burdens individuals and communities, and calls for policies that address the harm of driving with a suspended license without criminalizing it. According to the ACLU, taxpayers spend more than $40 million a year to prosecute cases of DWLS III.
“Not every social problem needs to be treated as a crime,” said Mark Cooke, the ACLU of Washington’s Campaign for Smart Justice Policy Director. “DWLS III enforcement costs taxpayers millions of dollars, yet does little to improve public safety. The crime is largely punishing people for being poor, not because they are scofflaws or dangerous drivers,” said Cooke.
Typically, a DWLS III charge comes about this way: A driver receives a ticket for a moving violation (such as speeding or rolling through a stop sign) and for various reasons does not follow through by paying the ticket or showing up in court to contest it. Hundreds of thousands of people in Washington have had their license suspended for not responding to a ticket for a moving violation. Those who continue to drive once their license is suspended may be arrested and charged with DWLS III.
The report estimates that Washington taxpayers have spent more than $1.3 billion enforcing this crime between 1994 and 2015. These costs stem from the filing of nearly 1.5 million DWLS III criminal charges, resulting in nearly 900,000 convictions. In 2015, there were nearly 40,000 DWLS III charges filed, costing taxpayers $42,199,270. The report also shows that the law is applied unequally across the state and disproportionately impacts people of color, the young, and the poor.
The report recommends that the crime of DWLS III should be taken off the books. Short of that, law enforcement, prosecutors and courts can exercise their inherent discretion and treat DWLS III as a civil offense and offer relicensing programs. Civil remedies and relicensing can be more effective and use fewer criminal justice resources. The data in the report also shows that some jurisdictions, such as the cities of Yakima and Seattle, have started to treat DWLS III as a non-criminal offense.
My opinion? It’s no mystery that DWLS III allows police to arrest people with suspended licenses. However, most don’t know that it allows police to search people’s vehicles after arrest. Therefore, any contraband, guns or other illegal items found in people’s cars can be lawfully seized. Additionally, the defendant will face unlawful possession charges for whatever contraband found during the search. In my opinion, this is the essence of an unlawful pretextual search. And for that reason, DWLS III should be a civil infraction which circumvents the need for arrest and searches. It should not be a crime.