ACLU-NC Calls on Governor Perdue to Respect the Rule of Law -- On October 29, 2009, the scheduled release date for Bobby Bowden and the other inmates whom the Department of Correction (DOC) deemed to have completed their prison sentences, the American Civil Liberties Union of North Carolina (ACLU-NC) urged the Governor and the state’s Attorney General to uphold the Due Process guarantee under both the U.S. Constitution and the North Carolina Constitution that has been a fundamental principle of our constitutional democracy since the founding of this nation. Governor Beverly Perdue and Attorney General Roy Cooper ordered the DOC not to release the inmates as previously scheduled and to go back through their records over the past several decades and recalculate the sentence reduction credits that had been awarded for good behavior, work release, and furthering their education. As a result, Carlos E. Mahoney, President of the ACLU-NC and Jennifer Rudinger, Executive Director of the ACLU-NC, issued the following statement:

“We understand that the next step in this process, as ordered by the Court of Appeals last year and as approved by the state’s Supreme Court earlier this month, is for Mr. Bowden and the other inmates who are similarly situated to go before a trial court judge and show that they have been awarded enough credits during their more than three decades of incarceration to qualify for release. And if the Governor and Attorney General believe that some of those credits were improperly counted, they may certainly argue to the court that a recalculation is necessary. But the right to Due Process guaranteed under both the North Carolina and United States Constitutions prohibits the State from retroactively changing the rules that were applied by the DOC and deducting credits now that were properly calculated under the rules that existed at the time they were awarded. At the time in question, the Secretary of the DOC was granted the clear statutory authority to establish the rules for awarding sentence reduction credits. The inmates followed those rules and were awarded credits as deemed appropriate by the DOC. So the State can double-check the math, but Due Process requires that they cannot now change the rules retroactively.

Our Governor and Attorney General have sworn an oath to uphold the laws as they were actually written at the time they were applied, not as they wish they were written. We remind them of their oath and call upon them to respect the rule of law rather than sacrifice the Constitution for political expediency.”

Immigration Customs Enforcement 287(g) Agreements with Local Sheriffs -- We are continuing to investigate a growing phenomenon in North Carolina, where local sheriffs are contracting with U.S. Immigration and Customs Enforcement (ICE). To date, seven NC counties and one city have entered into Memoranda of Agreement (MOA) with ICE, so that certain of their deputies can be trained to act as federal immigration agents. Counties with current MOAs include: Alamance, Cabarrus, Cumberland, Gaston, Henderson, Mecklenburg and Wake. The City of Durham has also entered into an MOA with ICE, making Durham the first city in North Carolina to participate in 287(g). Additionally, we recently learned that other counties are participating in a program called “Secure Communities,” which provides jails with equipment that uses inmates’ fingerprints to check immigration status and criminal records, then automatically alerts immigration officials to inmates who are in the country illegally. Counties participating in Secure Communities include Buncombe, Cumberland, Duplin, Gaston, Harnett, New Hanover, Orange and Wake. We are concerned that we will see an increase in DWI and license checkpoints in these counties, such as we have seen in 287(g) counties. We believe such checkpoints are being set up to catch more undocumented immigrants. We have also received complaints of racial profiling at checkpoints. Accordingly, we have sent out public records requests to all thirteen 287(g) and Secure Communities counties, as well as all major cities and towns in those counties, seeking information regarding checkpoints and compliance with the North Carolina “racial profiling” statute. We are currently receiving responses to those requests and beginning our review of the documents.

Pena v. Porter -- In January 2008, the ACLU-NCLF filed an amicus brief in a police misconduct case in which a Hispanic plaintiff alleges that he was shot by Clayton, NC police officers who targeted plaintiff’s property for a search and ultimately employed excessive force, all because of the officers’ discriminatory beliefs about Hispanics. Oral argument occurred on September 24, 2008 and went well. On March 13, 2009, the Fourth Circuit Court of Appeals ruled in favor of Mr. Pena, finding that the search of his property was unreasonable under the 4th and 14th Amendments and that the jury should decide whether the shooting constituted an unreasonable seizure. Unfortunately, the court refused to agree with our argument that both the search and shooting were improperly racially motivated and therefore in violation of Section 1981, a civil rights law that protects individuals from discrimination based on race. However, the evidence of the discriminatory intent will get in at trial and should help Mr. Pena with regard to winning his case and possibly recovering punitive damages.

Taser Incident in Elon -- On June 18, 2006, officers with the Elon Police Department surrounded the home of John Paylor in order to serve him with a misdemeanor arrest warrant. Even though Mr. Paylor did not actively resist or pose any threat to the officers, one of the officers shot Mr. Paylor twice with a Taser, causing Mr. Paylor to fall off his porch onto his concrete sidewalk. We filed suit on Monday, March 30, 2009. On January 13, 2010, the ACLU-NCLF announced a successful settlement on behalf of Mr. Paylor. 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.

Durham Suspension Case -- On January 16, 2007, the ACLU-NCLF joined with members of the Leandro coalition in filing an amicus brief in a Durham school suspension case. The complaint alleged that several children were suspended based on a vague gang policy implemented by Durham County Schools. The lower court granted the defendant school officials’ motion to dismiss the complaint. Our brief related specifically to two issues: (1) the vagueness of the Durham County Schools gang policy; and (2) the lack of procedural due process provided to the one of the suspended students. The amicus brief was filed on March 30, 2007, and the Court of Appeals issued its decision on October 21, 2008. Although the COA affirmed dismissal on several counts of the complaint, it reversed on the gang policy issue and seemed to take its analysis directly from our brief. The gang policy issue was our coalition’s main concern, and we considered this a huge success for our efforts to combat the school-to-prison pipeline problem in Durham County Schools. However, the North Carolina Supreme Court granted the school system’s petition for discretionary review. Our education coalition assisted at the Supreme Court level and submitted an amicus brief on Monday, April 13, 2009. On January 29, 2010, the Supreme Court issued its ruling, in which it ruled against the plaintiffs on all issues except the gang policy issue. On that issue, the Supreme Court found that it should not have granted the petition for discretionary review. Accordingly, that claim survived, which we consider a great success. The case now goes back to the trial court on the gang policy issue.

Johnston County Sheriff’s Office Racial Profiling Investigation -- On September 8, 2008, The News & Observer in Raleigh published a story that detailed several interviews between N&O reporter Kristen Collins and Johnston County Sheriff Steve Bizzell, in which Sheriff Bizzell made several overtly racist comments about members of the Latino community. In light of these alarming comments, ACLU-NCLF led several coalition partners in launching an investigation of the Johnston County Sheriff’s Office, in an attempt to determine whether these racist beliefs are being implemented in the enforcement of the law by JCSO. We sent a public records request to JCSO on September 9, 2008. We sent another public records request to the North Carolina State Bureau of Investigation on September 15, 2008. A team including Katy Parker, Rebecca Headen and Marty Rosenbluth of the Southern Coalition for Social Justice are currently reviewing records provided by the SBI in response to the 9/15/08 request. On October 14, 2008, we traveled to the Johnston County Sheriff’s Attorney office to review documents provided by JCSO in response to the 9/8/08 public records request. We requested copies of all produced documents and then became engaged in a dispute with JCSO regarding that production, specifically with regard to the amount of money they have charged for copying the documents. The parties engaged in mediation on February 6, 2009 and arrived at an agreement as to fees. The County delivered the documents on February 12, 2009, and we are in the process of reviewing those documents.

Orange County Sheriff’s Office Confiscation of Property of Homeless Individuals -- The ACLU-NCLF has been working for several months on behalf of two homeless individuals in Orange County, who were harassed and had their personal property confiscated by Orange County sheriff’s deputies in July 2007. The deputies informed the individuals, Barbara Sims and Taz Herbert, that they had “three minutes” to gather their belongings or the items would be confiscated. Nevertheless, the deputies failed to wait even three minutes before taking Ms. Sims’s and Mr. Herbert’s items, including two sleeping bags, a grill and clothing received from a local church. On August 14, 2007, the ACLU-NCLF, along with the UNC School of Law Civil Legal Assistance Clinic, sent a letter to the Orange County Sheriff, seeking information about the matter and outlining concerns about the actions of its deputies. The two groups sent a follow-up letter on November 29, 2007, detailing settlement demands. The County agreed to most of the demands set forth in the demand letter, including compensation in the amount of $1,000 ($500 apiece) to cover the cost of replacing the items destroyed. The parties have been working with the individuals to resolve this matter. Unfortunately, on Saturday, May 17, 2008, Barbara Sims was killed after being hit by a car while crossing a street in Chapel Hill. The two groups issued a press release praising Barbara for her efforts to improve conditions for the local homeless community, and we continue to negotiate with OCSO on behalf of Mr. Herbert.

Asheville Police Department’s “John TV” -- Asheville Police Department has implemented “John TV” – a plan to disseminate the names and photos of individuals arrested on prostitution charges. Specifically, the photos, names, and cities of residence of individuals charged with prostitution and solicitation of prostitution will now appear online in a newly created police blotter posted on the City of Asheville’s website. Apparently, the information will also air on the Asheville Channel Bulletin Board (Charter cable channel 11). Additionally, APD has initiated a plan to send postcards to the owners of vehicles that are spotted cruising in areas known for high prostitution and drug activity. The ACLU-NCLF sent a letter to Assistant City Attorney Curt Euler on March 6, 2008, outlining the concern that this program likely violates individuals’ due process rights, by imposing punishment before conviction. Asheville declined the ACLU-NCLF’s request to revise its programs. Accordingly, the ACLU-NCLF is seeking potential plaintiffs who might be interested in challenging this program.

“Video Access to Justice” Program Being Considered in NC -- The ACLU-NCLF recently learned that a task force has been convened by the North Carolina Bar Association to discuss the advantages and disadvantages of the use of videoconferencing during various stages of criminal trials in North Carolina. Specifically, the task force is studying whether and how video cameras can be used so that prisoners can appear in court proceeding via video. This will save money and increase security (so say the proponents), as prisoners will not need to be transported to various courthouses for their appearances. The ACLU-NCLF has serious concerns about the constitutionality of this proposed program – especially as applied to various court appearances, such as a probable cause hearing. On July 16, 2008, the ACLU-NCLF sent a letter to the task force, outlining its concerns.