National Lawyers Guild

Law For The People 2014

CLE Materials

TABLE OF CONTENTS
VOLUME I
Wednesday, September 3
Environmental Human Rights ................................................................................................ 4
Thursday September 4
Military Discharge Upgrading and Discharge Review......................................................... 343
50 Years After Freedom Summer ........................................................................................ 516
Friday, September 5
Workshops I
Fighting For Chicago: Combating Economic Restructuring, Gentrification,
and Other Policies That Exclude the Poor and People of Color ................................... 806
Federal Criminal Defense: Raising Creative Defenses in Phone Stash House
Ripoff Cases and Analyzing Ways to Reduce Federal Drug Prison Sentences.............. 827
Should An Intersectional Analysis of Oppression Include Exploitation of
Non-Human Animals? ................................................................................................ 1126
VOLUME II
Workshops II
Countering the New McCarthyism: Trends in Repression of the Palestinian Rights
Movement in the U.S. ....................................................................................................... 4
Immigration Detainers .................................................................................................. 216
Organizing for Human Rights Accountability in the US: Using the UN &
New International Human Rights Laws to Promote Justice ......................................... 541
Saturday, September 6
Major Panels I
Why Inequality Matters: Fighting Wage Disparity & Income Inequality -

How We Are Fighting Back.......................................................................................... 571

Deportation is Death: Issues Facing Queer/Trans Immigrants ..................................... 650
Pursuing Accountability & Reparations for Torture.................................................... 1286
VOLUME III
Major Panels II
Sex Work and the Failure of Anti-Trafficking Policies ..................................................... 4
Guilty Until Proven Innocent: How Federal Law Enforcement
Circumvents Constitutional Rights ............................................................................... 185
Sunday, September 7
Workshops III
FOIA - How to Successfully Bring Sunshine to Records the
Government Doesnt Want You to See ......................................................................... 461
First Defense for All: Ending the False Confession Epidemic ...................................... 745
Dead or in Prison: Indigenous Resistance to Resource Extraction ................................ 819
Military Sexual Assault: Advocacy in Reporting Assaults &
Countering Retaliation .................................................................................................. 900
Workshops IV
Stopping the School-to-Prison Pipeline: Using Restorative Justice to
Stop the Criminalization of Black and Latino Youth in Chicago
Public Schools ................................................................................................................ 928
Surveillance Self Defense for Legal Workers and Lawyers ............................................ 987
Immigration Status for Victims of Workplace Crimes ................................................ 1031

Sex Work and the Failure of Anti-Trafficking Policies: the Struggle Against
the Criminalization of Women and LGBT People of Color
Women of color, including transgender women of color, are perpetually profiled as sex workers,
and they disproportionately suffer from laws that criminalize sex work. The phenomena in which
transgender women of color are targeted and arrested for sex-related charges even when not
engaging in sex work is so well known it has been dubbed walking while trans. The CLE will
discuss how these patterns of criminalization operate, and it will explore the content of laws that
criminalize sex work in the U.S. and internationally, including laws pushed by the mainstream
anti-human trafficking movement, including End Demand and the Anti-Prostitution Pledge.
The CLE will educate lawyers and legal workers about the lived realities of women of color and
LGBT people of color who are engaged in sex work or profiled to be. The presenters will discuss
legal, political and organizing strategies to challenge the laws the criminalize sex work and that
serve to criminalize and incarcerate women and LGBTQ people of color, including efforts by a
coalition of organizations in NYC seeking to pass legislation to preclude police and prosecutors
from using peoples possession of condoms against them in criminal proceedings as well as
challenges to the vague laws that serve to criminalize LGBTQ people (e.g., loitering for the
purposes of prostitution and manifestation of prostitution).
Presenters:
Aziza Ahmed, Associate Professor of Law at Northeastern University School of Law
Shira Hassan, activist and the former Director of Young Womens Employment Project in Chicago
Monica Jones, activist and organizer with Sex Workers Organizing Project in Phoenix, Arizona
Andrea J. Ritchie, attorney and co-director of Streetwise and Safe (SAS) in NYC
Kristina Dolgin, law student and organizer with the Sex Workers Organizing Project (Bay Area)
(moderator)
Aziza Ahmed is currently Associate Professor of Law at Northeastern University School of
Law. Prior to joining the Northeastern faculty, Professor Ahmed was a research associate at the
Harvard School of Public Health Program on International Health and Human Rights. She came to
that position after a Women's Law and Public Policy Fellowship with the International Community
of Women Living with HIV/AIDS (ICW). Aziza has worked on human rights and social justice
issues in South Africa, Namibia, the Caribbean, India and the United States. She has worked with
and for various United Nations agencies, international and domestic non-governmental
organizations. Professor Ahmed served as a member of the Technical Advisory Group on HIV and
the Law convened by the United Nations Development Programme (UNDP). She teaches
Reproductive and Sexual Health and Rights, International Health Law, and Property Law. She
holds a law degree from the University of California Berkeley, a masters of science in population
and international health from the Harvard School of Public Health, and a BA from Emory
University.
Shira Hassan is an activist, community organizer, youth empowerment leader and consultant of
Middle Eastern Descent, who has focused on the experiences of girls, boys, transgender and queer
youth involved in the sex trade and street economy since 1995. From 2006 through 2011, Shira
served as the Director of the Young Women's Empowerment Project in Chicago, a youth run
member based social justice organizing project led by and for young women, girls and transgender

youth of color with current or former experience in the sex trade and street economy. Shira has
trained and spoken nationally on the sex trade, harm reduction, self injury, group work and
healing & transformative justice. She received her Masters in Social Work from New York
University in 2002.
Monica Jones is a Black trans activist and sex worker rights advocate who lives in Phoenix,
Arizona. She was recently arrested, charged and convicted of violating a vague anti-prostitution
statute in Arizona the day after publicly speaking out against Project ROSE, a college social work
agency that has teamed up with local law enforcement officials to conduct mass detentions and/or
arrests of individuals they believe are engaging sex work. Monicas recent arrest and conviction
has garnered national attention through her courageous activism and willingness to speak out
against the profiling she and other transgender women of color have faced, spawning a national
organizing campaign working to free Monica Jones.
Andrea J. Ritchie is a Black lesbian police misconduct attorney and organizer based in New York
City. She has engaged in extensive research, writing, speaking, litigation, organizing and
advocacy on profiling, policing and physical and sexual violence by law enforcement agents
against women and LGBT people in the US and Canada over the past decade. She currently
coordinates Streetwise and Safe (SAS), a leadership development initiative aimed at building
knowledge, community and power among LGBT youth of color with experience of gender, race,
sexuality and poverty-based policing and criminalization in the context of quality of life
initiatives and the policing of sex work and trafficking. In 2009, she served as Director of the Sex
Workers Project. As a member of the national collective of INCITE! Women of Color Against
Violence from 2003-2008 she coordinated the development of INCITE! Women of Color Against
Violence Organizers Toolkit on Law Enforcement Violence Against Women of Color and
Transgender People of Color. She is co-author of Queer (In)Justice: The Criminalization of LGBT
People in the United States (Beacon Press, 2011).

Know Your Rights Manual for

the Sex Worker Community:

Criminal Law

The National Lawyers Guild

558 Capp Street
San Francisco, CA 94110
(415) 285-5067
www.nlgsf.org

This manual is a project of the National Lawyers Guild San Francisco Bay Area Chapter;
many additional individuals and organizations made valuable contributions, including the St.
James Infirmary and Just Cause Law Collective.
The National Lawyers Guild is an association dedicated to the need for basic change in the
structure of our political and economic system. We seek to unite the lawyers, law students,
legal workers, and jailhouse lawyers of America in an organization that shall function as an
effective political and social force in the service of the people, to the end that human rights
shall be regarded as more sacred than property interests. The Sex Worker Know Your Rights
Manuals are legal materials designed for sex worker community members and their
advocates to provide a set of basic, current, and locally-specific legal information about how
certain areas of substantive law uniquely affect sex workers.
This effort was inspired by Thomas Steel, tireless advocate for the San Francisco Bay Area
LGBT community and longtime friend and supporter of the National Lawyers Guild San
Francisco Bay Area Chapter. His leadership and vision enabled the work which the
Transgender Know Your Rights Manuals seek to further.
The Sex Worker Know Your Rights Manual was made possible by the Thomas Steel Fund.

Contents
USING THIS MANUAL.2
FINDING THE LAW FOR FREE3
A NOTE TO LEGAL PROFESSIONALS.4
BASIC RIGHTS ................................................................................................................................................................................ 4
OVERVIEW ...................................................................................................................................................................................... 4
INTERACTIONS WITH POLICE OFFICERS ...................................................................................................................................... 5
Undercover Police Officers ...................................................................................................................................................... 5
Stops and Searches on the Street .......................................................................................................................................... 6
Treatment and Pronouns ......................................................................................................................................................... 7
Identification ............................................................................................................................................................................. 8
Questioning ............................................................................................................................................................................... 8
Searches of the Home ............................................................................................................................................................. 9
Vehicle Searches ....................................................................................................................................................................10
Searches Upon Arrest ............................................................................................................................................................11
Transporting Arrestees...........................................................................................................................................................11
Booking ...................................................................................................................................................................................12
Getting out of Jail ...................................................................................................................................................................13
Immigration Consequences ..................................................................................................................................................14
Criminal Records ....................................................................................................................................................................15
TAKING ACTION: POLICE MISCONDUCT .....................................................................................................................................15
Sample Questioning Scenarios ..................................................................................................................................................17

RESOURCES.................................................................................................................................................................................21
California Resources ..............................................................................................................................................................21
Nationwide Resources ...........................................................................................................................................................22

This information was compiled by law students of the National Lawyers Guild, using statutory
law, case law, and the work of numerous legal and non-legal organizations across the
country, notably, the National Lawyers Guild San Francisco Bay Area chapter. While the
information here is up-to-date through June 2014, it is possible that substantive changes
have been made to the laws since it was last updated. Please keep this in mind while using
this resource. Source and reference information will be provided for most of the content in
this manual to help you verify that the information is still good before relying on it.
This manual was created for use by sex worker community members and allies, by service
providers who work with the sex worker community, and by attorneys and legal workers who
provide advocacy and legal services to members of the sex worker community. For purposes
of this manual, the word sex worker is used as an umbrella term for individuals who
exchange sexual services for money or gifts, an act that is criminalized in most of the United
States. This includes people who work as prostitutes, rent boys, escorts, street-based
workers, and sensual massage workers. Occasionally, the text will refer to individuals as he
or she or his or her. This reference does not indicate that a statement applies exclusively
to persons who identify as male or female, but instead is used for legibility and accessibility.
The information in this manual does not constitute legal advice; instead, it is meant to serve
as a resource to help understand the landscape of law in a particular area, and to help
connect readers with the current information needed to verify law or navigate a particular
situation. Although we hope that this manual assists service providers and community
members in locating information and resources, it is important to note that only licensed
attorneys are authorized to give legal advice. If you have a question of law that is outside of
the scope of information provided in this manual, you may wish to consult or refer your client
to an attorney or, if you are a client, to contact one of the legal support agencies listed in the
resource guide in the back. Many of the organizations listed in the resource guide provide
referrals to attorneys who are familiar with transgender law and working with the
transgender community.
For questions, comments, corrections, and suggestions, please contact
kmdolgin@gmail.com.
USING THIS MANUAL
This manual was created to be a first-stop reference for lawyers, service providers, and
community members who need legal information about a sex worker-specific issue or
question of law. For ease of use, the content has been divided by common problems or
needs. Case law, statutes, print and web resources, and other service organizations can be
found embedded throughout the manual, referenced in the footnotes, and listed in the
directory at the back of this manual.

This resource was created by and for people in the San Francisco Bay Area, and therefore
much of the information is specific to California and San Francisco Bay Area resources and
law. We hope that this manual will be a helpful resource to readers outside of California as
well because it includes information that is nationally relevant. However, it is important that
non-California readers pay close attention to what information appears to be specific to
California or the Bay Area, and not presume that the local information contained in this
manual will transfer to other cities and states. Non-California readers are encouraged to use
the national resources listed in the directory at the back to locate up-to-date information
about the laws and precedent in their state or city.
It is important to note that, although the researchers who assembled this information did
our best to be accurate on points of both black letter law and how the law tends to play out
in the real world, there may be inaccuracies and nothing in this manual should be relied on
as legal advice. Legal advice can only come from a lawyer. This manual is, however, a good
starting place to understand the law and how it affects sex workers and communities in
California and the Bay Area specifically.
FINDING THE LAW FOR FREE
Legal documents, such as cases and statutes, are actually public documents. This means
that everyone (members of the public) has the right to research and read these documents.
The problem is that sometimes these documents can be hard to find or access.
If a case is cited in this document and a person wants to find and read the actual case, we
can find it by following a series of steps. The first step is to avoid getting flustered by the
complicated series of numbers, letters, and punctuation that follows the name of the case.
The next step is to simply go to http://scholar.google.com/, click the Legal opinions and
journals button and type in the volume number, the journal name, and the page number
from the case citation. For example, to find the case of State v. Jordan, 742 N.W.2d 149
(Minn. 2007). We would ignore the name of the case (State v. Jordan), and copy the volume
number (742), then journal name (N.W.2d), followed by the page number (149). Those three
things are all thats needed to find the case on Google scholar. Sometimes the journal name
will be different, but as long as the right information is copied into the search bar, Google
Scholar should be able to pull it up.
Again, the information in this manual is not legal advice. We hope that sex workers and their
allies will use this manual as a first step for beginning to understand applicable law, and
identify when legal help is needed.
Many sex workers report barriers to accessing legal services for a number of reasons. The
cost of hiring a lawyer is a major issue for many, along with fears that lawyers will not be
respectful of sex worker clients, will not know enough about how laws specifically affect sex
workers, and that the court system is prejudiced against sex workers. While all of these fears
are justified, attorneys, activists, and advocates across the country are making huge strides
in increasing legal services and resources for sex workers and transgender people. Many
states have lesbian, gay, bisexual, and transgender (LGBT) bar associations that can be
helpful in locating legal information or finding lawyers who are knowledgeable about
3

transgender law and sensitive to the specific concerns of transgender clients. Many of the
organizations listed in the resource section at the end of this manual are happy to assist
individuals in finding legal services. Although legal services often seem too expensive, there
are a lot of organizations and individual attorneys committed to making justice more
accessible. You may be eligible for pro bono (free of charge) representation or fee structures
that work for you (such as contingency fees, where you only pay if you win your case).
Additionally, many attorneys are happy to meet with potential clients for free to assess your
case. This can be a good way to learn more about your options and whether it's worth it to
you to pursue legal action.
A NOTE TO LEGAL PROFESSIONALS
This manual was designed to be a resource to clients, but it is our hope that service
providers and legal professionals will also find it useful. Attorneys may find this manual to be
a helpful starting point for legal research and a useful tool for locating additional resources.
All manuals in this series contain footnotes to case law, law review articles, and statutes
that we hope will assist you. As with any compilation of research, attorneys are urged to
check all cited law before relying on it to make sure there haven't been substantive changes
and that it will apply to your client's particular case. Many of the organizations listed in the
resource section of this document provide assistance to attorneys representing clients, and
can be excellent sources for information and insight. When advocating for transgender
clients, attorneys can advocate for the use of appropriate name and pronoun for their client
in court and other proceedings.

BASIC RIGHTS
Both citizens and non-citizens alike have rights under the United States Constitution. The
Fifth Amendment gives every person the right to remain silent that is, to not answer
questions asked by a police officer or government agent. The Fourth Amendment restricts
the governments power to enter and search a person's home or workplace, although there
are many exceptions and new laws have expanded the governments power to conduct
surveillance, as well as the authority for the police to search a person or belongings. The
First Amendment protects a person's right to speak freely and to advocate for social change.
These Constitutional rights are absolute, and cannot be suspended even during wartime.1

OVERVIEW
The sex industry has been in existence throughout known history and prostitution is often
referred to as the worlds oldest profession. Sex workers vary widely by gender, sexual
orientation, race, class, and motivation. Some work indoors, others on the street; some work
independently while others have managers, support staff, or work in groups. Anti-sex work
laws are not enforced consistently against any sex workers except for the most visible, those

1 Know Your Rights!: What to Do if Questioned by Police, FBI, Customs Agents or Immigration Officers, August 2004
California: National Lawyers Guild San Francisco Bay Area Chapter, American Civil Liberties Union of Northern California,
and the American Arab Anti-Discrimination Committee, http://www.nlgsf.org/resources/, Last visited May 22, 2014.

working on the street, and those most marginalized and vulnerable, including women of
color, transgender women, and immigrant women.2

INTERACTIONS WITH POLICE OFFICERS

Prostitution laws criminalize anyone who engages in or agrees or offers to engage in sexual
conduct with another person for a fee. Generally, these laws are enforced through
undercover operations, in which police officers pose as clients and then arrest sex workers.
More often, police use vaguely worded quality of life regulations prohibiting loitering,
loitering with intent to solicit, obstructing vehicular traffic, public lewdness or nuisance, and
disorderly conduct, among many other things, to harass, detain, and arrest people believed
to be involved in sex work.3
Sex workers, as well as those perceived to be sex workers based on gender non-conformity,
experience high levels of violence from police officers. This violence includes rape, sexual
assault, and physical abuse.4 Additionally, reporting instances of sexual assault or domestic
violence against a sex worker often results in the arrest of the victim, not the abuser, leading
many sex workers to avoid interactions with police at all costs.
When dealing with the police, there are basic things one can do to stay safe, or at least
make a stressful situation safer. People are less threatening to an officer if they keep their
hands in view, don't make sudden movements, never touch the officers or their equipment,
and remain respectful at all times. Anything that detainees might do to give an officer
reason to argue that they are dangerous will work against them. Such behavior could even
lead to an aggressive reaction on the part of the police, and a charge of assault against the
detainee.
Undercover Police Officers
Sex workers are often arrested during sting operations involving undercover police officers
posing as clients. Most liberal legal advocates would consider this entrapment, an illegal
police tactic thats use could act as a defense to prostitution charges. Many courts have
found that these types of stings are legal because they define entrapment as police
encouraging an individual to do something they ordinarily would not have done. These
courts consider a defendants willingness to engage with a client, which is the officer,
constitutes a manifestation of their pre-existing intent or willingness to engage in
prostitution.5
There is no reliable way to identify undercover officers or informants. Police officers are
legally allowed to lie about being police officers. Undercover officers are allowed to engage
in criminal activity in the course of their job, including buying, selling, and doing drugs,
2 The San Francisco Task Force on Prostitution: Final Report, The San Francisco Task Force on Prostitution,
http://www.bayswan.org/1TF.html, Last visited June 13, 2014.
3 Policing Sex Work, INCITE!, http://mail.incite-national.org/sites/default/files/incite_files/resource_docs/4668_toolkitrevsexwork.pdf, Last visited June 13, 2014.
4 Id.
5 How Do the Police Avoid Entrapment when Conducting a Sting Operation?, Cramm Law Firm,
http://www.crammlawfirm.com/how-do-the-police-avoid-entrapment-when-conducting-a-sting-operation/, Last visited June
18, 2014.

getting naked and receiving massages from sex workers.6 Until March 2014, Hawaii
undercover officers were even allowed to have sex with sex workers.7
Stops and Searches on the Street
Much of what could potentially transpire between a police officer and someone on the street
is governed by the Fourth Amendment of the United States Constitution, including when an
officer may stop someone and what that officer has the authority to do after stopping
someone. Even if it appears that a person has been stopped by an officer for no reason, this
is often hard to prove, as the officer only needs to meet a relatively low standard of proof in
order to stop an individual.
An officer is prohibited from stopping someone solely based on gender presentation. An
investigative stop of any individual must be justified by some objective manifestation of fact
that the person stopped is, or is about to be, engaged in criminal activity.8 This reasonable
suspicion test, however, is easy to satisfy. A court will examine the circumstances
surrounding the stop, and officers can cite to things such as being in a prostitution free
zone, the time of day, type of clothing worn, and their own expertise to support their
findings of reasonable suspicion.9 The San Francisco Police Commission has adopted
resolutions explicitly prohibiting officers from using gender presentation as a factor to meet
this reasonable suspicion requirement.10
Just after someone has been stopped by an officer, it is a good idea to ask the officer if he
or she is free to go. If the answer is yes, that person may walk away. If the police say an
individual is not under arrest, but is not free to go, that person is being detained. Though
being detained is not the same as being arrested, an arrest could follow.
An officer is required to have an explanation for such detention. You can ask the officer for
an explanation of why you are being detained, though they may not answer your question. If
the detention is later challenged, the officer will be required to provide the court with an
explanation for the detainment. The person being detained does not have to answer any
questions (though outside of California you may be required to identify yourself). Even
though people who are being detained often feel that they are not being treated with
respect, and may be stressed out or upset, maintaining a respectful and polite tone with the
officer can go a long way toward staying safe. Especially if you are refusing to answer
questions or identify yourself, use your own best judgment about how to speak to police
officers.
Under the U.S. Constitutions Fourth Amendment and California law, the police need a
reasonable suspicion that a person is armed and dangerous in order to search their
person.11 This type of search is referred to as a frisk, or a pat down. The purpose of a
Undercover Officers, Just Cause Law Collective, http://www.lawcollective.org/article.php?id=59, Last visited June 18,
2014.
7 Hawaii Law Lets Undercover Cops Have Sex with Prostitutes, CBS News, http://www.cbsnews.com/news/hawaii-law-letspolice-have-sex-with-prostitutes/, Last visited June 18, 2014.
8 United States v. Cortez, 449 U.S. 411, 417 (1981).
9 People v. Souza, 9 Cal. 4th 224, 229, 237 (1994).
10 San Francisco Police Department, General Order 5.17(II)(A)(2)(a)
11 Cal. Pen. Code, 833.
6

frisk is for the officer's safety and therefore can only be done in search of weapons, and not
in search of drugs. An officer may pat down a person's clothing, which may include patting
the area over or near the chest, buttocks, or genitals. Grabbing at or near genitalia, however,
simply to establish a person's true sex is inappropriate and potentially unlawful, depending
on the jurisdiction. Even if the police have no other grounds for suspicion, hostility or
aggressive behavior may be enough for them to justify a search. However, consenting to a
search is not required; consent may enable the police to conduct a much broader search
than would otherwise be allowed by law.12 It is important that the person being stopped
calmly assert that they do not consent to the search; this helps ensure that any evidence
found will be inadmissible in court if the officers search is later ruled to have been illegal.
Note that if you are stopped while in a vehicle, the constitutional reasonableness of traffic
stops does not depend on the actual motivations of the individual officers involved.13
Furthermore, police officers making traffic stops may order passengers to get out of the
vehicle pending the completion of a search.14
In a study conducted by Human Rights Watch, transgender persons reported being
frequently stopped and searched by police officers due to profiling based on their gender
presentation.15 In San Francisco, detaining an individual solely based on gender
presentation violates police policy.16 However, a law banning loitering with intent to commit
prostitution is frequently used to stop or arrest suspected sex workers, with at least 168
arrests occurring in San Francisco between May and August of 2011.17 Disturbingly, prior to
October 2012, the possession of condoms was commonly used as evidence in the
prosecution of suspected sex workers. In April 2013, the San Francisco District Attorney
announced that a ban on this practice would be permanent.18
The California law banning intent to commit prostitution defines intent in an exceptionally
broad manner, and conduct that may be used as evidence of intent includes having
conversations with passersby or hailing the drivers of cars.19 It has been unsuccessfully
challenged for being overly broad and vague.20
Treatment and Pronouns
Disrespectful and unsafe treatment by police officers is particularly prevalent with
transgender community members. Acknowledging this reality, it can be difficult for detainees
to know how to increase their chances of being treated safely and respectfully, especially in
regards to pronoun use for transgender detainees. In San Francisco21 and in other
People v. Jenkins, 22 Cal. 4th 900, 974 (2000).
Whren v. United States, 517 U.S. 806, 813 (1996).
14 Maryland v. Wilson, 519 U.S. 408 (1997).
15 Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities, Human Rights Watch, July 19, 2012.
http://www.hrw.org/reports/2012/07/19/sex-workers-risk, Last visited May 22, 2014.
16 Investigative Detentions, San Francisco Police Department, General Order 5.03. http://www.sfpolice.org/modules/ShowDocument.aspx?documentid=14788, Last visited May 22, 2014.
17 Sex Workers at Risk at http://www.hrw.org/node/108771/section/5, Last visited May 22, 2014.
18 Seth Hemmelgarn, Breaking: DA Agrees to new Condoms Policy, Bay Area Reporter, Apr. 11, 2013.
http://ebar.com/news/article.php?sec=news&article=68698, Last visited May 22, 2014.
19 Cal. Pen. Code, 653.22
20 People v. Pulliam, 62 Cal. App. 4th 1430 (1998).
21 General Rules of Conduct, SFPD San Francisco Police Department, General Order 2.01, #14; SFPD San Francisco Police
Department, Department Bulletin, 03-243.
12
13

municipalities, police officers are required to avoid harsh, profane or uncivil language as well
as address a person with respect to their self-identified gender.
In San Francisco for instance, officers are instructed to respectfully ask individuals for
clarification if uncertain of what pronoun to use; e.g. do you prefer to be referred to as
she or he? This means that a person arrested in San Francisco is entitled to be treated
in accordance with a self-identified gender, regardless of anatomy, legal name, or gender
marker. Other jurisdictions may or may not have such police protocols in place, but it is
always a good idea to check just in case. If interacting with a police officer that is using the
wrong pronoun, the detained person can correct this by saying to the officer, I prefer to be
referred to by female/male pronouns. In other municipalities, it should be argued that such
treatment is necessary to maintain the rights and dignity of the detainee. The law does not
necessarily protect people against improper pronoun usage when the mistake is
inadvertent. A persistent refusal to address a detainee in accordance with his or her gender
identity, however, could be an actionable offense in a municipality such as San Francisco
with a policy regarding pronoun use in place.
Identification
After making a stop, an officer might ask the person for identification. In California, the
refusal or failure of a person to submit identification upon request cannot be the sole cause
for arrest or detention, except where the driver of a motor vehicle refuses to produce a
drivers license upon request.22 In other words, unless an individual is pulled over while
driving, it is legal to refuse to produce identification in California; and, in San Francisco at
least, an officer may not threaten arrest in order to make a person comply.23 Individuals can
also refuse to provide other personal information, such as address or immigration status. If
arrested, an individual is not obligated to provide identification, but may be released more
quickly if a name is provided, unless the individual is driving a vehicle, in which case
refusing to provide identification can result in charges.
In some states, including New Mexico and Nevada, refusing to give a name can be cause for
being detained or arrested under state law.24 Regardless of the laws in a particular state,
police do not always follow the law, and refusing to provide a name may make an officer
suspicious and lead to a person being arrested anyway. If an individual fears that providing a
legal name would lead to arrest or harassment, such as having a legal name that is
obviously not congruent with gender presentation for instance, that person can claim the
right to remain silent and, if arrested, this fact can be helpful later. Individuals should not
give any name that is not a legal name, as providing a false name can be considered a
crime. Even if the name given is the only name that person uses, it could still potentially be
considered a false name for purposes of charging the individual with a misdemeanor.25
Questioning
Questioning can occur on the street or in an interrogation room and they can take the form
of seemingly innocuous and simple questions to manipulate and intense drilling. Everyone
Cal. Veh. Code, 40302.
Investigative Detentions, San Francisco Police Department, General Order 5.03.
24 Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177 (2004).
25 Cal. Pen. Code 148.9.
22
23

has the right to talk to a lawyer before deciding whether to answer questions.26 If a person
does agree to be interviewed, that individual has the right to have an attorney present. The
lawyers job is to protect a persons rights. Once a detainee requests a lawyer, the officer
must stop questioning the detainee, and the individual should make any further contact only
through the lawyer.27 If the person does not have a lawyer, the individual can still request to
speak with one before answering questions. A detainee or arrestee should remember to get
the name, agency, and telephone number of any investigator who visits, and give that
information to the lawyer. The government must provide a free lawyer28 if the person is
charged with a crime. The National Lawyers Guild or another organization may be able to
help find a lawyer for free (pro bono) or at a reduced rate.
Some people might worry that insisting on remaining silent, requesting a lawyer, or refusing
a search will make an officer more suspicious. This is not necessarily the case. Silence can
demonstrate to officers an awareness of rights, thus providing additional incentive for the
officers to follow procedural rules to avoid accusations of misconduct. As the Miranda
warning states, anything you say can be used against you in a court of law.29 Generally
speaking, law enforcement officials are supposed to read people their Miranda rights before
questioning them.30 However, the National Lawyers Guild strongly cautions individuals that
come into contact with officers to remain silent and assume that anything they say will be
used against them in court.31 In June 2013, the Supreme Court ruled that a defendant must
invoke his or her Fifth Amendment right to remain silent in order to restrict the use of that
silence as evidence at trial.32 If you are questioned by police officers, it is a good idea to
explicitly invoke your Fifth Amendment right to remain silent with the officer by stating I am
going to remain silent. I want to see a lawyer.
Arrestees often believe that offering explanations will help resolve the problem, but it is
impossible to know how statements made in front of an officer will be interpreted later.
Often statements will result in causing more harm than good. The safest approach is for
detainees or arrestees to calmly repeat that they wish to remain silent and do not consent to
a search of their person or of their vehicle.33
Searches of the Home 34
The Supreme Court has ruled that a persons home is entitled to maximum search
protection. For a search to be legal, the 4th Amendment requires an officer to have probable
cause to believe that illegal activity is occurring inside the home and a signed search
warrant from a judge. Consent to enter is a major exception to the warrant requirement. If

Miranda v. Arizona, 384 U.S. 436, 470 (1966).

Id. at 474.
28 Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).
29 Miranda, 384 U.S. at 479.
30 U.S.C.A. Const. Amend. 5.
31 You Have the Right to Remain Silent: A Know Your Rights Guide for Law Enforcement Encounters, National Lawyers
Guild, http://www.nlgsf.org/sites/default/files/resources/KYRpamphletSF.pdf, Last visited May 22, 2014.
32 Salinas v. Texas, No. 12-246, 2013 BL 158572, *8 (May 22, 2014).
33 Know Your Rights: Dealing with Police, Midnight Special Law Collective,
http://www.midnightspecial.net/materials/dealingwithpolice.html, Last visited May 22, 2014.
34 Surveillance Self-Defense: Search Warrants, Electronic Frontier Foundation, https://ssd.eff.org/yourcomputer/govt/warrants, Last visited June 17, 2014.
26
27

consent to enter has been given, any items in plain view may be seized as evidence of
illegal activity.
If police say they have a search warrant ask them to give it to you. Read it to see that it is
signed, has the correct address, and a reasonably recent date. If you point out a flaw in a
warrant, officers may ask you to let them in anyways. Clearly and formally state that you do
not consent to a search. If officers insist on entering after you have refused to give consent,
stand aside and allow them to enter while continuing to remind them you do not consent.
Physical resistance to officers will likely result in you getting hurt and charged with resisting
arrest or assault in an officer.
Do not answer any questions during their search. Take notes during the officers search,
noting: officer names and badge numbers, names and contact information of any witnesses,
and everything you see them search or seize, to the best of your ability. Police typically
provide an inventory of what has been seized at the conclusion of a search. If not, request a
copy but do not sign any statements.
Vehicle Searches
The law allows greater authority to officers stopping people in cars. In this context, there are
certain actions a person can take to increase the chances of a safe and less confrontational
encounter with an officer. People being stopped should keep their hands where the police
can see them. If stopped while driving a vehicle, the driver is required to show license and
registration.35 A stop of a motor vehicle is considered by law to create limited exceptions to
the warrant requirement. This means that officers can conduct a search without a warrant if
they have probable cause to believe there is contraband in the vehicle, or if they believe
someone in the vehicle is armed or poses a threat to officer safety.36 If officers begin to
search the vehicle, it is best for a person to state clearly and calmly that he or she does not
consent to a search.
Often, police will request consent to a search because they do not have probable cause to
search without asking. After all, if they had probable cause, there would be no need for
consent, other than to broaden the scope of the legal search. An officer may not conduct a
full search of a vehicle without probable cause merely because he or she is issuing a
citation.37 If an officer wishes to search a vehicle to find vehicle registration or identification
documents, the officer may only conduct a limited search of locations where he or she
reasonably believes they may be found.38 Officers may separate passengers and drivers
from each other to question them, but both drivers and passengers retain the right to
remain silent. It is best to always state clearly that you do not consent to a search. The
police may search anyway, but an illegal search may lead to suppression of the evidence in
court.

Cal. Veh. Code 4462.

Knowles v. Iowa, 525 U.S. 113, 116. (1998).
37 Id. at 116-17.
38 In re Arturo D., 27 Cal. 4th 60, 86. (2002).
35
36

10

Searches Upon Arrest 39

Upon arrest an officer may conduct a warrantless search of the arrestee and the area and
objects in close proximity at about the same time as the arrest according to the Search
Incident to Arrest (SITA) doctrine. The purpose is to protect the officer by seizing any
weapons and to prevent the destruction of evidence on the person.
If police come to the door of your home or place of business with an arrest warrant, step
outside and lock the door, as they will be able to search any room you enter. If you are
arrested in a car, police are allowed to search the inside of the car, including containers, but
not the trunk. However, a car trunk can later be searched during impound inventory.
Prior to June 2014, courts were split on whether an officer could search through the
contents of a persons cellphone pursuant to the search incident to arrest. Now, however,
officers are required to have a warrant before searching the contents of an arrestees
cellphone.40
Password-protect electronic devices to prevent potentially unconstitutional privacy invasion.
For stronger protection, consider using file and disk encryption software. For more
information on how to protect your electronic anonymity and privacy visit:
https://www.eff.org/deeplinks/2014/07/protecting-your-anonymity-how-sex-workers
Transporting Arrestees 41
In San Francisco, after being arrested the arrestee is often transported to a different
destination than where the arrest took place. Transport is a stage of the process where sex
workers and transgender people are particularly vulnerable to police misconduct. The San
Francisco Police Department has enacted a policy to mitigate harm to women and
transgender people during transport. This policy, General Order 2.01, Rule 36, Transporting
of Females and/or Transgender Individuals, applies to women and any transgender
person or individual whose gender identity is indeterminate to the [officer] and not clearly
articulated by the individual. San Francisco police orders state that when officers transport
a female or transgender person, they must notify the Communications Division of the
Department of the vehicle's starting mileage, the location from which they are leaving, and
the destination. When the officer reaches the destination, that officer must immediately
notify the Communications Division with the vehicle's ending mileage.
If a female or transgender detainee is being transported and this rule is not being followed,
the detainee can self-identify to the officer, thereby making the officer aware that Rule 36
applies. An officer who does not follow this procedure could attempt to escape liability by
stating that he or she was unaware that the detainee was female or transgender at the time
of transportation because the detainee did not self-identify. Ultimately, it is the arrestee's
decision to disclose or not; arrestees may feel that disclosing prior to or during
transportation may create more risk than it will prevent, but others may feel that disclosing

Surveillance Self-Defense: Search Incident to Lawful Arrest, Electronic Frontier Foundation, https://ssd.eff.org/yourcomputer/govt/sita, Last visited June 17, 2014.
40 Riley v. California, 573 U.S. ___ (2014)
41 San Francisco Police Department, General Order 2.01, #36.
39

11

prior to transportation will increase the chances that rules will be followed and documented,
making any possible misconduct easier to prove.
It is important to remember that even when there are rules in place, these rules are not
always followed. Ultimately, individuals should rely on their best judgment in a particular
situation. Some arrestees would prefer to cooperate even when not required to in order to
de-escalate a situation if they fear retaliation by an officer, particularly if there is no one
around to witness or if the officer seems particularly aggravated. Document any suspected
violation of rules and consult your attorney or consider filing a misconduct report if you
believe your rights, as provided by these rules, have been violated. Again, individuals outside
of San Francisco should check for the rules and policies in their jurisdiction to see what, if
any, protections are offered.
Booking 42
Booking, which is the process of being admitted into detention after being arrested, can be
complicated and stressful for sex workers and transgender people. If a transgender arrestee
has not already disclosed his or her transgender status or identity, the booking process is
where disclosure might occur regardless of the arrestee's wishes. The booking process
involves paperwork where the sex on a person's driver license or state ID is recorded, and
where a person's legal name is demanded.
When an arrestee is brought to the detention center, an officer will review the individuals
legal documents to see if that person meets the admission requirements of the facility. The
general booking process has several steps where transgender or intersex status might be
disclosed whether or not the individual wants this information known. One general step is
recording of information, or the booking form. The booking form will ask for either male or
female gender as well as driver license information. Similar to a job application, the form will
request your address, work or school information, and emergency contact. The name on the
driver license is the name that an individual will be booked under. However, if the name on
your driver license is not the name that you prefer to be called, you can let the officer know
when the form is being filled out, as policy requires the police to use your preferred name. It
is possible that the officer will disregard your request, but if you feel safe and are
comfortable with voicing your preferred name, do so.
After the intake form, arrestees will usually have their mug shot taken and property
collected. The next step is often fingerprinting, which will likely connect your fingerprint to
the gender/sex indicated on the booking form. A nurse may screen the arrestee for potential
vulnerability to sexual assault and if that person has tendencies to act out with sexually
aggressive behavior. If either of these are present, the nurse will notify the Associate
Warden of Operations. Being a transgender individual is often considered within the scope
of vulnerability to sexual assault.
However, as always, be mindful of who is making the assessment and your safety during
that process. Individuals may feel that disclosing to the examining nurse is a safer choice
42 San Francisco Police Department, Department Bulletin 03-246, 2003.
https://archive.org/stream/minutes2003sanf_7/minutes2003sanf_7_djvu.txt, Last visited June 5, 2014 and Booking and
Detention Manual, July 2004.

12

than disclosing to the booking officer. Although it often feels like there is no safe time to
disclose transgender status or identity while detained, individuals may choose to disclose
during the booking process before an unclothed body search if he or she believes that this
search will be uncomfortable or unsafe. Prisoners may wish to request strip search staff that
makes them feel more comfortable during the process (for example, female staff strip
searching a male-to-female inmate), but a refusal to accommodate such requests does not
necessarily mean a prisoners rights have been violated by prison officials.43 However,
searches are required to be reasonable, and may violate the Fourth Amendment if they are
conducted in an excessive, vindictive, or harassing manner.44
Getting out of Jail 45
There are several procedures through which you can get out of police custody after an
arrest. Instead of bringing you to jail, officers may issue a citation, much like a traffic ticket
promising to appear in court, and release you. Sometimes people are released on their own
recognizance, O.R, in which case they simply promise to appear in court for scheduled
hearings without paying to pay bail. A defendant usually requests to be released O.R. at the
first court hearing. If a judge denies the request, a request for low bail is then made.
Usually you will only be released OR if you can prove you are not a danger to the community
and are not a flight risk. Factors that may convince a judge to grant O.R. include:

Having family members living in the community

Having lived in the community for a long time (current and old records of lease, rent
receipts, utility bills, phone bills to show length of time)
Having a job (employment contracts, pay stubs, records of volunteer work)
School enrollment (school records, school ID)
Membership in community organizations or churches
Having little or no past criminal records, or any previous criminal problems are minor
and old

Assembling a packet of documents to show the judge that you have long-term ties to the
community is helpful. You will need the originals in addition to copies to give to the court.
Generals character reference letters with phone numbers from landlords, roommates,
clergy, and employers and doctors outlining any medical conditions or appointments
necessitating release are also valuable.
The most common way to get out of jail is by posting bail. Bail is cash, bond, or property you
give to a court to ensure that you will appear for court appearances. If you dont show up,
the court keeps the bail and issues a warrant for your arrest. A judge sets bail amount and
jails usually have standard bail schedules for the most common crimes. The bail schedule
for San Francisco county can be found here:
43 Konitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010) (not deliberately indifferent to medical needs of male-tofemale transgender person by denying her request to be strip searched by female prison staff, no evidence male staff
would harm prisoner); see also Meriwether v. Faulkner, 821 F.2d 408, 410-11 (7th Cir. 1987) (transgender inmate claimed
she was harassed by officers and forced to strip in front of officers and other inmates).
44 Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988).
45 NOLO, Bail: Getting Out of Jail After an Arrest, http://www.nolo.com/legal-encyclopedia/bail-getting-out-of-jail30225.html, Last visited June 23, 2014.

13

http://www.sfsuperiorcourt.org/sites/default/files/pdfs/2012%20revised%20March2013%
201st%20bail%20schedule.pdf
Bail can be cash, check, or property worth the full amount, which will be returned (minus an
administrative fee) when the case is over and all court appearances have been made. Bail
can also be a bond, a guaranteed payment of the amount, purchased through a bonds
dealer. Bond sellers generally charge 10% of the total bail amount and often require
collateral, a financial interest in your property, which they can cash in on if you fail to appear
for a court appearance.

Immigration Consequences46

If you are not a US citizen, a criminal conviction can have serious immigration
consequences. The extent of these consequences is dependent upon your present
immigration status, the outcome of the case, and the types of crime(s) you were charged
with. Generally, the more serious the crime and the more temporary/illegal your immigration
status is, the more likely you will be deported.
It is incredibly important for non-US citizens to immediately seek help from an immigration
attorney in addition to a criminal defense attorney if arrested. While a criminal defense
attorney may give excellent advice in helping navigate the criminal justice system, their
advice may lead to a result way worse for you.
The federal Immigration and Nationality Act states any non-citizen living in US can be
deported (regardless of how long youve been in the country, whether you have a dependent
child who is a US citizen, whether you are a legal or illegal immigrant) if they are convicted of
certain criminal offenses.47 In California, deportable crimes include:

Crimes of moral turpitude, which can include anything a court finds to be antisocial
behavior that harms others
Aggravated felonies, which includes crimes related to the operation of prostitution
business or pimping

Additionally, you can be deemed inadmissible (not deportable) if you came to the US to
engage in prostitution, engaged in prostitution within 10 years of application for a visa or
admission, or acted as a pimp.48 For these, you do not need to have been convicted in order
to become inadmissible.
When plea-bargaining be particularly careful about submitting a guilty or no contest plea.
These count as convictions, which can have major immigration consequences. Accepting a
diversion program (or other procedural equivalent including deferred prosecution or
dispositional continuance) in lieu of jail time usually counts as a conviction for immigration
purposes as well. Again, it is imperative you contact an immigration attorney to work with
your criminal defense attorney in preparing for your legal defense. A list of organizations
specializing in immigration law can be found in the resources section of this manual.
46Shouse

Law Group http://www.shouselaw.com/immigration.html#sdendnote42anc, Last visited June 23, 2014

INA 245, 8 U.S.C. 1255, endnote 1
48 INA 212(a)(2)(D)
47

14

Criminal Records
In the San Francisco Bay Area, you may be eligible to have your criminal record improved
through an initiative called the Clean Slate Program. Governmental agencies and nonprofit
organizations across California and throughout the country have begun offering similar
criminal record improvement programs and initiatives. Individuals interested in improving
their criminal record should research if such programs are offered through their local courts,
county public defenders office, or through nonprofit legal aid groups. People who have been
arrested, convicted of a crime, or been found delinquent in Juvenile Court could be eligible
to have their criminal record "cleansed" by a simple process. Some records, such as
marijuana possession and juvenile offenses, can be totally destroyed. Other records can be
changed from felony to misdemeanor status.49 Information about the San Francisco Clean
Slate Program can be found here: http://sfpublicdefender.org/wpcontent/uploads/2013/02/Application.Packet.Feb_.2013.pdf.
Through initiatives modeled after the Clean Slate Program, some cities, counties, hospitals,
and nonprofit groups now also offer free or low cost tattoo removal services for individuals
seeking employment who are facing the stigma associated with visible tattoo markings.

TAKING ACTION: POLICE MISCONDUCT

If a person feels his or her rights have been violated by a police officer, it is important to
document as many of the following as possible:

Date, time, and location of the incident;

The officers name, badge number, and squad car number;
A physical description of the officer;
The officers precinct number or division (possibly found on the brass insignia on the
officers shirt collar); and
Any witnesses present at the time (get names and phone numbers if possible).

Use of excessive force, inappropriate sexual behavior, or violation of constitutional rights by

a police officer can also give rise to a lawsuit against the police officer, the police
department and the city under the state and federal constitutions.50
Document any injuries right away. If a person is injured, they should get medical care as
soon as possible. Be sure to tell the caregiver that the injuries were caused by police and be
certain it is noted in the medical record. Get a copy of the medical record when leaving the
clinic or hospital. Have injuries photographed immediately, using good quality color film or a
high-resolution digital camera with a time and date stamp. If a healthcare facility offers to
take photographs, have them use your camera or take copies of the photographs when you
leave. Sit down right away and write down every detail about the incident. Ask any witnesses
to do the same.

California State Resources, Papillon Foundation, http://www.papillonfoundation.org/statespecificinfo/california.html,

Last visited May 27, 2014
50 Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
49

15

Below are several ways to report police misconduct. Please note that the National
Lawyers Guild does not encourage individuals to report police misconduct
directly to police departments or city offices because of a historically high
incidence of retaliation and non-response.
Making complaints to city agencies can be highly ineffective and discipline is historically and
statistically unlikely. Frequently, there is very little action taken on reports of police
misconduct. Of 164 allegations of police misconduct made to the Oakland Citizens Police
Review Board between January and June of 2011, only 6 (4%) were sustained.51 However,
benefits of reporting to the city agencies include that there is a possibility (though unlikely)
of officer discipline, a report that is substantiated may bolster any civil lawsuit that might be
brought against the officer(s), reports can be used in class action lawsuits brought by nonprofits on behalf of a group, and each individual report affects statistics and other
information that is used to influence attempts to bring about changes in police policies and
tactics.
For issues with the San Francisco Police Department, the most effective way to file a
complaint of misconduct is to go to the Office of Citizen Complaints (OCC), located at
25 Van Ness Avenue, Suite 700, San Francisco, CA 94102. This will allow investigators to
personally interview the person and to do a thorough job of completing the initial, and one of
the most important, phases of the investigation of a complaint.52 For more information, visit
http://sfgov.org/occ/ or call (415) 241-7711.
For issues with the Oakland Police Department, a person can either call the 24-hour
complaint hotline at (866) 214-8834 or the Citizens' Police Review Board Office at
(510) 238-3159. Both of these offices have challenges that cause barriers to access and
effectiveness. The OCC has inadequate funding, a small staff, and long delays in charging
offending officers. Between 1996 and 2004, the OCC received more than 10,000
complaints and sustained only ten percent.53 The Oakland office no longer has public
hearings, which indicates less accountability to the public. Individuals who experience police
harassment or misconduct in Oakland can contact People United for a Better Life in
Oakland (PUEBLO) for assistance making a report at (510) 535-2525 or visit their website
at www.peopleunited.org.
People who experience police harassment or misconduct in San Francisco or greater Bay
Area can contact Community United Against Violence (CUAV) for support resources,
assistance filing police misconduct reports, and courtroom advocacy. CUAV can be reached
online at www.cuav.org, or via their multi-lingual hotline at (415) 333-4357.

51 City of Oakland Citizens Police Review Board 2011 Semi-Annual Report, Office of the City Administrator, Oct. 13, 2011.
http://www2.oaklandnet.com/oakca1/groups/cityadministrator/documents/report/oak032709.pdf, Last Visited May 22,
2014.
52 Complaints, City & County of San Franciscos Office of Citizen Complaints, http://www.sfgov3.org/index.aspx?page=434,
Last visited May 22, 2014.
53 Fernandez, Sward, and Wallace, The Use of Force / Disciplines obstacles / Few complaints against police upheld even
fewer bring serious discipline, San Francisco Chronicle (Feb. 8, 2006) p. A1, http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2006/02/08/MNUFDISCIPLINE.DTL, Last visited May 22, 2014.

16

Individuals anywhere in the country can visit the National Lawyers Guilds National Police
Accountability Project (NPAP) website at www.nlg-npap.org to locate attorneys and
organizations that work with police misconduct issues across the country.
Sample Questioning Scenarios54
Its unlawful for the police to beat you into confessing; however, its perfectly legal for them
to sucker you into it. Thats why interrogation doesnt usually involve bright lights and rubber
hosesmore often than not, the officer sounds sympathetic or at least business-like. And
that can leave you even more vulnerable to manipulation, because when you feel relieved
that the officer isnt being really scary, you tend to let your guard down. Besides, its truly
difficult to overcome the natural urge to talk ones way out of trouble. Thats why it makes so
much sense to train yourself to say, Im going to remain silent. I would like to see a lawyer,
under any circumstances. Its got to become a reflex you can rely on, the same way you
know that youd automatically start swimming if you fell into deep water, even if you were
scared and disoriented.
Common Interrogation Lines
Youre not a suspect. Were simply investigating here. Just help us understand what
happened and then you can go.
If you answer questions, youre likely to become a suspect, if you arent really one
already.
What are you afraid of? If you havent done anything wrong, then you shouldnt have any
problem answering my questions.
What you should be afraid of is being lured into answering questions. You dont have
anything to prove. Remember, in court youre innocent until proven guiltyand the
thing most likely to prove guilt is an unplanned statement made when youre
arrested. If the police are thinking of arresting you, answering their questions will
make them more determined to do it, not less so.
Look, if you dont answer my questions, I wont have any choice but to take you to jail. This
is your chance to tell your side of the story.
This is the most common trick of all! The police consistently pretend that theyre
considering letting you go, when theyve already made up their minds to take you to
jail. Remember, the time to tell your side of the story is when youre in court and have
your lawyer helping younot when youre alone with a cop whos busy building a case
against you.
Your friends have all cooperated and we let them go home. Youre the only one left. Do you
want to stay in jail?
Adapted from Katya Komisaruk, Just Cause Law Collective 2007, http://www.lawcollective.org/article.php?id=55 and
http://www.lawcollective.org/article.php?id=54, Last visited June 18, 2014.
54

17

The police can lie about where your friends are and what theyve said. Dont trust
information given to you by the cops. Make sure to verify your facts through a lawyer
or your friends and family.
Im tired of screwing around. If you dont answer my questions, youre going to be charged
with obstruction.
Well, you know this is garbage, because the Constitution guarantees you the right to
remain silentso refusing to answer questions cant be against the law. But some
cops will still threaten you with resisting an officer or obstruction of justice, just to
see whether youll fall for it.
Come on, Im not asking you to sign anything. Were just talking. And you can stop any time
you want to.
Remember, anything you say can be used against you in a court of law. You dont
have to sign anything to make it a real confessionthe police will just quote you (and
they may be taping you, too). The time to stop is before you ever begineven a little
time spent answering questions can completely screw up your case.
Look, weve got all the evidence we need to convict you, so you might as well confess.
If the police really had all the evidence they needed, they wouldnt waste time talking
to you. The only reason theyre questioning you is because they dont have enough
proof, and theyre hoping youll be kind enough to give it to them.
Basically, the case against you is really strong. Its not a question of whether youre going to
jailits a question of what youre going to jail for. This is your last chance to get the right
information to the DA before he decides on the charges.
This is not the time to give more information to the DA (the prosecutor). You can do
that later, once youve got a lawyer helping you. After all, the DA can change the
charges any time up to trial, and usually doesreducing or dismissing them as part of
a plea-bargain. But your lawyer can get you a better deal if you dont give away all
your bargaining power by confessing to the arresting officers.
You got a choice here. Either you answer my questions, or youre going to jail. And Id hate
to see a nice white girl like you get punked by a bunch of gangsters.
or
You can talk to me now, or you can go to jail. And let me tell you something, theres men in
that jail who havent been outside in months, men who havent been with a women for a
real long time. Howd you like to be raped by a bunch of gays?
Cops use this kind of race-baiting and queer-bashing pretty frequently to scare
18

people who havent been to jail before. And the cops arent particularly subtle about
it. Dont let some bigot with a badge put his trash into your head.
TV and movies make rape-in-jail scenarios look more frequent than they really are.
Most people in jail are there for drug or property crimes, not crimes of violence (much
less sexual violence). If you behave reasonably, other prisoners really arent likely to
give you a hard time. This is not the time to launch into a political discussion of how
the legal system is malfunctioning and can't be trusted to protect the innocent. Don't
let yourself be drawn into any kind of conversation at all.
General Interrogation Techniques
You know the police are really trying to manipulate you when they offer a legal defense or
moral justification for what youre accused of doing, or imply that what happened was due to
an accident or to circumstances beyond your control. In applying this tactic, the interrogator
frequently offers the suspect two choices, for example: a believable explanation or an
unbelievable one; an honorable excuse or a dishonorable one. Of course, both choices are
still damaging admissionsits just that one sounds better than the other. Imagine the
following lines said by a sympathetic, understanding police officer in a warm, reassuring
tone of voice:
Legal Defense
I understand what youre sayinghe threatened you, and essentially you were acting
in self-defense.
Okay, weve got you for possession of marijuana. Butwhat isnt clear to me is: were
you just out to get stoned, or were you maybe using it for medical purposes?
Moral Justification
What Im wondering is whether you needed that money so you could take care of your
kids and getthem decent food and clothes and allor did you just do it because you
wanted drugs or new Nikes or whatever?
Well, thats a perfectly normal reaction. When a manfinds out that his wife is
sleeping with another guy, hes going to want to go out and do something about it.
Accident or Circumstances Beyond Control
Now, I wasnt there, so I dont know. Only you knowwhat really happened. But Im
thinking that when two people get into it, when theres an argument, stuff can
happen that nobody ever intended. I mean, you couldve just been shoving each
other around, and he couldve fallen and hit his head by accidentjust plainbad
luck.
Obviously theres a difference between being an activeparticipant and being a
bystander. Its one thing to be actually involved in selling sex, and its another thing to
just be in the house when some other girl is. But the way things look you could be

19

either one. And the only way were going to be ableto figure out what your real role
was is if you talk to us.
Another common tactic is minimization/maximization, contrasting the worst-case
scenario with the best possible outcome:
You know, theres a lot of different ways this casecould be charged. Anywhere from
human traffickerthat gets you 15 years in prisonall the waydown to nuisance, for
which people typically get a slap on the wrist. What were doing right now is trying to
understand what really happened, so we canmake a decision which way to go
Often the police will even say, Look, Im not making any promises and then imply that
confessing will result in a better outcome in court: lesser charges, a more favorable
sentence, etc. This is a lie. The police are not authorized to offer leniency in exchange for a
confession. Only the prosecutor or judge can make a plea-bargain.
All law enforcement officers are trained to question suspects. Very few civilians have any
practice in spotting or withstanding the interrogation techniques police use against them.
Its initially surprising that the Good Cop/Bad Cop routine works so well, since its generally
so obvious. Youve seen it in hundreds of TV shows and movies, and most people consider it
a clich. Yet law enforcement officers use it in every city, every daybecause it works nearly
every time. And a big reason it works so well is that when youve just been arrested, youre
extremely vulnerable. Youre thinking of all the horrible things that are likely to happen:
going to jail, disappointing your loved ones, being publicly disgraced, losing your job, failing
school, etc.
On top of that, if youve been in custody all day or all night, youll be suffering from fatigue
and hunger, and perhaps other physical stresses. So, psychologically, youre a sitting duck.
And even though you know, intellectually, that the good cop is just trying to manipulate you,
you cannot help having hope and trust in the one person in this awful situation who seems
to be on your side. Its a tough problem, but there is a solution. The answer is to train your
mind, so that you say Im going to remain silent. I would like to see a lawyer, no matter how
upset youre feeling or how kind the officer seems.
If youre arrested with friends, make an agreement that no one will make statements to the
police until everyones been able to talk to a lawyer and decide calmly what to do. Be aware
of the paranoia that tends to set in after people have been separated.
Warning: Do not have a strategy discussion in the backseat of a police car!
If youve been arrested with someone else, and the cops lock the two of you in their car and
walk away, you can bet dollars to donuts that theyre recording your conversation. So if
youre in this situation, just remind the other person that the smart thing to do is to say: Im
going to remain silent. I would like to see a lawyer. And leave any further discussion until
later.

20

When youre in jail, dont talk to your cellmates about what happened to you or who was with
youbecause you really dont want them testifying at your trial or sentencing hearing. Dont
even talk about mutual acquaintances. Stick to safe topics such as movies, music, sports,
etc. Youll make it a lot harder for anyone to snitch on you, if you dont snitch on yourself.

RESOURCES
Below is a brief list of resources that may be especially helpful. This collection is only a small
representation of sex worker-welcoming services in California and the United States.
Searching online for additional resources may yield more specific information or assistance.
Resources are divided by California-specific organizations, national organizations, and
general resources. For ease of use, we have specified whether organizations provide direct
or support services, and to what extent they serve sex worker communities and to what
extent they serve transgender communities. National Lawyers Guild Interns spoke with
representatives of almost all of these organizations to ensure that our description of their
services is correct and up-to-date, and that they are explicitly welcoming of transgender
community members.
California Resources
Community United Against Violence, www.cuav.org
427 South Van Ness Avenue
San Francisco, CA 94103
Phone: (415) 777-5500 ext. 301
Safety Line: (415) 333-HELP (4357)
Email: info@cuav.org
Founded in 1979, Community United Against Violence (CUAV) works to build the power of
LGBTQQ (lesbian, gay, bisexual, transgender, queer, and questioning) communities to
transform violence and oppression. We support the healing and leadership of those
impacted by abuse and mobilize our broader communities to replace cycles of trauma with
cycles of safety and liberation. As part of the larger social justice movement, CUAV works to
create truly safe communities where everyone can thrive.
El/La para TransLatinas, www.ellaparatranslatinas.yolasite.com
Phone: (415) 864-7278
Fax: (415) 575-1645
El/La is an organization for transgender Latinas (TransLatinas) that works to build collective
vision and action to promote our survival and improve our quality of life in the San Francisco
Bay Area. Because we exist in a world that fears and hates transgender people, women and
immigrants, we fight for justice. We respond to those who see us as shameful, disposable or
less than human. We are here to reflect the style and grace of our survival, and to make new
paths for ourselves.
St. James Infirmary, www.stjamesinfirmary.org
1372 Market Street
San Francisco, CA 94103
Phone: (415) 554-8484
Fax: (415) 554-9634
21

The Mission of the St. James Infirmary is to provide free, compassionate and nonjudgmental
healthcare and social services for sex workers (current or former) of all genders and sexual
orientations while preventing occupational illnesses and injuries through a comprehensive
continuum of services.
Sex Workers Outreach Project Bay Area, www.swopbay.org
SWOP Bay Area is part of national social justice network dedicated to the fundamental
human rights of sex workers and their communities, focusing on ending violence and stigma
through education and advocacy.
Transgender, Gender Variant, and Intersex Justice Project, www.tgijp.org
1230 Martket Street #705
San Francisco, CA 94102
Email: info@tgijp.org
The Transgender, Gender Variant, and Intersex (TGI) Justice Project is a group of
transgender peopleinside and outside of prisoncreating a united family in the struggle for
survival and freedom. They work in collaboration with others to forge a culture of resistance
and resilience to strengthen them for the fight against imprisonment, police violence,
racism, poverty, and societal pressures. They seek to create a world rooted in selfdetermination, freedom of expression, and gender justice.
Transgender Law Center, www.transgenderlawcenter.org
1629 Telegraph Avenue, Suite 400
Oakland, CA 94612
Phone: (415) 865-0176
Email: info@transgenderlawcenter.org
The Transgender Law Center (TLC) is a civil rights organization advocating for transgender
communities. TLC provides direct legal services, engages in public policy advocacy and
education and works to change laws and systems that fail to incorporate the needs and
experiences of transgender people.
Nationwide Resources
Center for Constitutional Rights, www.ccrjustice.org
666 Broadway, 7th Floor
New York, NY 10012
Phone: (212) 614-6464
The Center for Constitutional Rights (CCR) is dedicated to advancing and protecting the
rights guaranteed by the United States Constitution and the Universal Declaration of Human
Rights. Founded in 1966 by attorneys who represented civil rights movements in the South,
CCR is a non-profit legal and educational organization committed to the creative use of law
as a positive force for social change.
National Center for Lesbian Rights, www.nclrights.org
870 Market Street, Suite 370
San Francisco, CA 94102
Legal Helpline: (415) 392-6257 (9 am to 5 pm PST)
Toll Free Helpline: (800) 528-6257 (9 am to 5 pm PST)

22

Legal Helpline request forms: http://www.nclrights.org/legal-help-resources/

The National Center for Lesbian Rights (NCLR) helps LGBT individuals and families
nationwide through litigation, public policy advocacy, and public education. NCLR offers a
legal helpline during regular business hours, and the best way to request assistance is by
filling out an online help form on NCLR's website. NCLR provides referrals, assistance
locating LGBT-aware attorneys, and offers limited direct services.
National Center for Transgender Equality, www.transequality.org
1325 Massachusetts Avenue NW, Suite 700
Washington, DC 20005
Phone: (202) 903-0112
Fax: (202) 393-2241
The National Center for Transgender Equality is a national social justice organization
devoted to ending discrimination and violence against transgender people through
education and advocacy on national issues of importance to transgender people.
National Lawyers Guild National Police Accountability Project, www.nlg-npap.org
499 7th Avenue, Suite 12N
New York, NY 10018
Phone: (212) 630-9939
Fax: (212) 659-0695
Email: npap@nlg.org
The National Police Accountability Project (NPAP), a project of the National Lawyers Guild, is
a non-profit organization of plaintiff's lawyers, law students and legal workers. NPAP is
dedicated to ending police abuse of authority through coordinated legal action, public
education, and support for grassroots and victims' organizations combating police
misconduct.
Sex Workers Project, Urban Justice Center, www.sexworkersproject.org
123 Williams Street, 16th Floor
New York, NY 10038
Phone: (646) 602-5617
Fax: (212) 533-4598
Email: swp@urbanjustice.org
The Sex Workers Project provides client-centered legal and social services to individuals who
engage in sex work, regardless of whether they do so by choice, circumstance, or coercion.
One of the first programs in the nation to assist survivors of human trafficking, the Sex
Workers Project has pioneered an approach to service grounded in human rights, harm
reduction and in the real life experiences of our clients. Our professional service providers
are multi-lingual, non-judgmental and bring more than ten years of experience.
Sylvia Rivera Law Project, www.srlp.org
147 West 24th Street, 5th Floor
New York, NY 10011
Phone/Legal Helpline: (212) 337-8550
SRLP provides free legal services to transgender, intersex and gender nonconforming lowincome people and people of color in the New York area. SRLP provides advice and referral
23

for a wide variety of legal issues. Sometimes, they can also provide more help, such as
advocacy, help with a case you are bringing on your own, or, more rarely, representation in a
legal action.
Transformative Justice Law Project of Illinois, www.tjlp.org
4707 N. Broadway, Suite 307
Chicago, IL 60640
Phone: (773) 272-1822
Email: info@tjlp.org
Transformative Justice Law Project of Illinois provides free, zealous, life-affirming, and
gender-affirming holistic criminal legal services to low-income and street based transgender
and gender non-conforming people targeted by the criminal legal system in Illinois.

24

8/15/2014

Think Again: Prostitution

Think Again: Prostitution

Why zero tolerance makes for bad policy on world's oldest profession.
BY AZIZA AH MED

"Prostitution Is Bad."

DEPENDS ON WHAT YOU MEAN AND WHOM YOU ASK.

rostitution may be the world's oldest profession, but there is still little
agreement on the social and moral legitimacy of commercial sex. There are, of

course, those who consider sex sacred and its sale a sin, and there are libertarians
who are willing to accept nearly any degree of sexual freedom. But plenty of people
have views that lie somewhere in between, and they are fighting over the fairness,
regulation, and even the precise definition of what advocates and practitioners
increasingly refer to as "sex work."
Take France, for instance, where a debate erupted last fall over a proposed law that
would fine people $2,000 for purchasing sex. All sorts of protesters took to the
streets: women arguing that the law was necessary because violence and coercion
are endemic to the sex industry, and sex workers, hoisting posters with slogans
like " La repression n'est pas la prevention," who condemned the law. A group of
men also insisted in a letter that the government take its hands "off our whores."
Ultimately, on Dec. 4, the lower house of Parliament adopted the measure.
The French case is but one example of a global dispute about what constitutes
exploitation in the sale and purchase of sex -- and it also shows that one side of the
argument often has the upper hand. That side, a group of odd bedfellows
frequently called abolitionists, thinks that because all prostitution is inherently
degrading and dangerous, it must be eliminated. The group draws from, among
others, religious and faith-based organizations, both liberal and conservative
http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

1/14

8/15/2014

Think Again: Prostitution

political ranks, and some outspoken feminist camps. (The driving force behind the
controversial measure in France is Women's Rights Minister Najat VallaudBelkacem.)
So strong is the influence of this group that it has shaped the language typically
used to describe the global sex industry. In common parlance, sex work is a
dangerous phenomenon that routinely violates women's rights and perpetuates
their subordination to men. There is hardly a distinction drawn between sex work
and human trafficking, which involves controlling someone through threats or
violence with the express purpose of exploitation. This conflation leaves no room
for sex workers who make decisions for themselves; they are all just victims. "The
term 'sex worker' is false advertising," says the Coalition Against Trafficking in
Women.
This is more than a semantic issue. Since George W. Bush's administration, the
U.S. government has required that international organizations receiving funding
for efforts to combat trafficking and HIV/AIDS must not "promote, support, or
advocate the legalization or practice of prostitution." In an October 2013 call for
project proposals, the State Department reiterated, "The U.S. Government is
opposed to prostitution and related activities, which are inherently harmful and
dehumanizing, and contribute to the phenomenon of trafficking in persons."
This stance has put sex workers and their advocates -- who support the idea that
some people choose, although perhaps from a range of poor economic options, to
sell sex -- in an impossible position:
They must make a choice between compromising their principles or missing out
on opportunities for much-needed money. Such was the case with SANGRAM, a
sex workers' collective in India that refused to adopt an anti-prostitution pledge

They must make a

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

2/14

8/15/2014

Think Again: Prostitution

They must make a required by the U.S. President's Emergency Plan for
choice between AIDS Relief, or PEPFAR. (The U.S. Supreme Court
struck down the pledge as a violation of free speech
compromising
in June 2013, but this was only a partial victory:
their principles or Foreign, as opposed to U.S.-based, NGOs could still
missing out on
be barred from receiving funds, and the court did
opportunities for not address PEPFAR's ban on advocating the
much-needed
legalization of prostitution.)
money.
To make matters worse, the influence of

prostitution's vocal opponents has contributed to a

dearth of good data on the global sex industry, including its most harmful aspects.
In July 2006, the Government Accountability Office (GAO) acknowledged that
U.S.-cited statistics of people trafficked around the world are questionable. The
GAO highlighted a figure, cited by the U.S. Agency for International Development
(USAID), that there are 80,000 to 100,000 trafficked women and children in
Cambodia. But that number came, originally, from a publication by Cambodia's
Ministry of Planning that discusses the total number of sex workers in the country;
there is no breakdown of who is an adult or who is a victim of trafficking.
To better understand and address enormous wrongs like trafficking, we need good
data. But that first requires grasping the dangers of targeting sex work -- which
involves women, men, and transgender populations -- writ large for elimination.
Abolitionists say they want to protect human rights, but their efforts often
undermine those rights: Campaigns and programs to end prostitution in fact lead
to violence, stigmatization, and other problems for the exact people they claim to
be helping.

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

3/14

8/15/2014

Think Again: Prostitution

"We Can Abolish Prostitution by Making It Illegal."

NO.

Laws regulating sex work vary widely among countries. It's illegal to buy and sell
sex in the United States (with some exceptions). Germany legalized prostitution in
2002, and in December 2013, Canada's Supreme Court struck down the country's
anti-prostitution measures. Thailand, meanwhile, has long outlawed sex work, yet
the industry operates quite openly there.
Abolitionists typically insist that criminalization is imperative. Some have pushed
for making the sale of sex illegal. Others, however, including feminists who oppose
prostitution, support a different model: outlawing only the purchase of sex. They
argue that criminalizing clients will force the sex industry out of business,
liberating sex workers but not treating them as criminals.
Already, this model has achieved legislative success. Sweden outlawed buying sex
in 1999; Norway and Iceland later followed suit. France is on the verge of joining
the club, and a debate on the issue is even gaining steam in Germany. Feminist
Kathleen Barry, author of Female Sexual Slavery and co-founder of the Coalition
Against Trafficking in Women, has even called for an international treaty that
would mandate "arresting, jailing and fining johns." (She first introduced the idea
in the early 1990s, but has recently revived it.)
In reality, there is no convincing evidence that punishing "johns" decreases the
incidence of commercial sex. Troublingly, Sweden's sex workers report that
criminalization has simply driven the sex industry underground, with dangerous
consequences: Clients have more power to say when and where they want to have
sex, inhibiting workers' ability to protect themselves if need be.

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

4/14

8/15/2014

Think Again: Prostitution

Evidence shows, too, that criminalization of sale or purchase (or both) makes sex
workers -- many of whom come from marginalized social groups like women,
minorities, and the poor -- more vulnerable to violence and discrimination
committed by law enforcement. Criminalization can also dissuade sex workers
from seeking help from authorities if they are raped, trafficked, or otherwise
abused. These problems have been identified in many countries: A 2012 report by
the Open Society Foundations documented sex workers being harassed, extorted,
and intimidated by police in the United States, Russia, South Africa, Zimbabwe,
Namibia, and Kenya. And in Sweden, sex workers have reported that they are still
targeted by police, including for invasive searches and questioning.
Sex workers, their advocates, institutions like the Global Commission on HIV and
the Law, and a growing number of experts in health and law argue for removing all
criminal prohibitions for consenting adults. After all, sex will be bought and sold
no matter a country's laws. The question, then, isn't how to get rid of sex work -it's how to make it safe for those who do it. Decriminalization would allow sex
workers access to government and international resources so they could better
respond to threats like violence and trafficking, while also helping to ameliorate
the social stigma and prejudice they so often face.

"We Should Rescue Prostitutes From Brothels."

NOT NECESSARILY.

On top of arguing for criminalization, some abolitionists agitate for actively

removing people from the sex industry -- that is, entering brothels in "raids,"
pulling sex workers out, and placing them in rehabilitation programs. Proponents
of rescues, whose views dominate many anti-trafficking organizations, have
secured substantial international funding. The U.S. government, for example, has

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

5/14

8/15/2014

Think Again: Prostitution

given grants to organizations like the International Justice Mission (IJM), a faithbased group headquartered in Washington, D.C., and the Anti-Trafficking
Coordination Unit Northern Thailand, both of which actively promote rescues.
But rescues are often far from heroic. IJM has been criticized for failing to
distinguish between sex workers and trafficking victims. Describing the response
among people pulled from a Thai brothel in a 2003 IJM raid, a sex worker advocate
told the Nation, "They were so startled, and said,

'We don't need

rescue. How can
this be a rescue
when we feel like
we've been
arrested?'

'We don't need rescue. How can this be a rescue

when we feel like we've been arrested?'" More
recently in Thailand, law enforcement has
scrambled to respond to U.S. criticisms of the
country's anti-trafficking record by stepping up
raids. "[In 2012], the Royal Thai Police ordered all
police units to spend at least 10 days each month
doing anti-trafficking work," Gen. Chavalit

Sawaengpuech told Public Radio International (PRI) this past October. In effect,
PRI noted, the police are "trying to meet a quota even where there isn't data or
evidence indicating the sex workers they are rescuing are victims after all."
Violence perpetrated by local authorities during raids has also been documented
from South Asia to Africa to Eastern Europe. In 2005, the World Health
Organization (WHO) wrote in a bulletin that "research from Indonesia and India
has indicated that sex workers who are rounded up during police raids are beaten"
and "coerced into having sex by corrupt police officials in exchange for their
release." The bulletin added, "The raids also drive sex workers onto the streets,

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

6/14

8/15/2014

Think Again: Prostitution

where they are more vulnerable to violence." So rampant have these problems with
police become in Cambodia that, in June 2008*, more than 500 sex workers rallied
in Phnom Penh, chanting, "Save us from saviors."
Also troubling are some of the rehabilitation centers -- run by NGOs, churches, or
governments -- where "rescued" sex workers are placed. These centers profess to
offer medical care, counseling, and vocational training. Yet many are known for
perpetrating violence, detaining individuals, and separating them from their
families. The WHO bulletin stated that some Indian and Indonesian sex workers
are "placed in institutions where they are sexually exploited or physically abused."
In Cambodia, Human Rights Watch (HRW) has documented beatings, extortions,
and rape at government rehabilitation sites. And in the state of Maharashtra, India,
in addition to holding women for long periods of time, a rehabilitation home has
suggested that marrying them off is a mode of rehabilitation.
The rescue approach certainly makes for good optics. It has been covered, notably,
by Nicholas Kristof of the New York Times, who live-tweeted a brothel raid in 2011.
And the impulse to protect is surely a noble one. But in addition to ignoring that
some people choose to sell sex, rescues have subjected sex workers to a whole host
of abuses -- a fact certainly problematic for the abolitionists who champion such
interventions in the name of human rights.

"But Kristof Writes About Child Sex Slaves -- and

We Have to Save Them."
OF COURSE, BUT HOLD ON.

During the brothel raid Kristof covered in 2011, which took place in Cambodia, the
columnist tweeted, "Girls are rescued, but still very scared. Youngest looks about
13, trafficked from Vietnam." His discovery highlighted an abhorrent reality that
http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

7/14

8/15/2014

Think Again: Prostitution

concerns both advocates and opponents of sex work: Many in the sex industry
endure forced migration, torture, captivity, and other wrongs. Some of these
people are adults, but others are young girls and boys. We should do all that we
can to end these horrors, and no child should be involved in the sex industry.
To that end, international laws and standards explicitly condemn child
prostitution, including a protocol to the Convention on the Rights of the Child and
another to the Convention Against Transnational Organized Crime. UNICEF has
expressed a "zero tolerance" policy on the issue. The United States, meanwhile,
has taken its own legal stand with the Trafficking Victims Protection Act
(reauthorized in early 2013), and many countries have their own anti-trafficking
legislation.
Yet, ironically, current efforts to end the sexual exploitation of children often
endanger them. In many countries, authorities victimize trafficked children the
same way they do adult sex workers. Raids to save children are engulfed in the
same sort of challenges as the ones seeking to "liberate" adults; HRW's report on
Cambodia found that children pulled from the sex industry were forced to pay
bribes to the police and faced mistreatment at a government rehabilitation center.
Moreover, governments frequently adopt "blanket solutions" to address
trafficking, failing to acknowledge that each child's circumstances are different.
"While policies are evidently needed which can be applied to all children," Mike
Dottridge, former director of Anti-Slavery International, has written, "if they do not
take account of the huge variations which occur in reality, they are likely to harm
children."

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

8/14

8/15/2014

Think Again: Prostitution

These problems don't just exist outside the United States. Children in the U.S. sex
industry are often arrested and put into the juvenile detention system "instead of
in environments where they can receive needed social and protective services,"
noted a 2011 Congressional Research Service report. A September 2013 report by
the Institute of Medicine and National Research Council also found that, as of
early 2012, only nine states had enacted laws ensuring that minors accused of
prostitution are exempted from prosecution.
Currently, then, many efforts to save children from the sex industry are neither
safe nor fair to them. Correcting that poor record will mean improving laws that
target human trafficking, dedicating more resources to quality interventions,
addressing the social and economic conditions that make minors vulnerable to
exploitation, and making sure their voices are heard. It also means respecting and
engaging adult sex workers and their advocates as part of the solution, not the
problem. After all, sex workers are often the first to notice those being coerced into
selling sex -- including children -- or they are the first individuals whom trafficking
victims reach out to for help.

"Prostitution Spreads Disease."

WRONG WAY TO LOOK AT IT.

Sex workers have long carried the stigma of being vectors of infection. In the
1940s, U.S. government posters discouraged soldiers from purchasing sex with
slogans like "SHE MAY LOOK CLEAN -- BUT" and "DISEASE IS DISGUISED."
Throughout the HIV epidemic, governments have targeted sex workers for
spreading the deadly virus. Crackdowns on places and people who sell sex have
been routine, carried out under the auspices of protecting public health. Recently,

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

9/14

8/15/2014

Think Again: Prostitution

in countries like Greece and Malawi, authorities have arrested sex workers and
forced them to undergo mandatory HIV testing, a clear violation of health and
privacy rights.
To be sure, there are public health concerns surrounding sex work, including high
rates of sexually transmitted infections. But punishment and humiliation cannot
possibly be the answer. Similarly, criminalization only impedes access to medical
care. In 2012, the WHO stated, "Laws that directly or indirectly criminalize or
penalize sex workers, their clients and third parties can undermine the
effectiveness of HIV and sexual health programmes."
What's more, in the United States, police in several major cities harass or arrest sex
workers carrying multiple condoms, citing them as evidence of illegal activity. In
response, some sex workers have told reporters, activists, and others that, fearing
police, they sometimes do not carry condoms -- and thus end up having sex
without them.
What we should be doing instead is focusing on protecting, not persecuting, sex
workers. Grouped under the banner of "harm reduction" -- and supported by the
WHO and UNAIDS -- are programs that distribute condoms, educate sex workers
about HIV and other health risks, and provide them checkups, medicine, and
counseling. These programs are sometimes run by sex workers themselves. In
India, SANGRAM monitors condom use, cares for sex workers with HIV, and even
works to bar violent customers from brothels. Anti-trafficking initiatives can also
be built into peer-to-peer programs of harm reduction, as SANGRAM has done.
"Sex worker rights groups should be involved in the genuine anti-trafficking work

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

10/14

8/15/2014

Think Again: Prostitution

because, at the end of the day, they know their industry and their spaces and
they're better at it," SANGRAM's Meena Saraswathi Seshu told the U.N. news
agency IRIN in 2013.
The results of harm reduction can be dramatic. In the Ivory Coast, a 1990s
prevention campaign at "Clinique de Confiance," where women received
counseling, clinical exams, and testing for infections, contributed to a decline in
HIV prevalence from 89 to 32 percent among participating female sex workers. In
southern India, between 1995 and 2008, an increase in health interventions that
supplied condoms led to a drop in the prevalence of both HIV and syphilis among
sex workers.
Yet despite these successes, harm reduction receives insufficient support;
according to UNAIDS in 2009, less than 1 percent of global funding for HIV
prevention was being spent on HIV and sex work. At least in part, this is due to
abolitionists, who have at times disrupted important health initiatives. For
example, Durjoy Nari Shangho, a Bangladeshi organization, shuttered drop-in
centers for sex workers after the international NGO from which it received funding
signed the U.S. anti-prostitution pledge. Similarly, Doctors Without Borders
distanced itself from a project on the Cambodia-Vietnam border after U.S.
congressional testimony criticized it for promoting sex work.
Harm-reduction programs, if more widely accepted, spread out, and scaled up,
would go a long way toward protecting sex workers' health. But they shouldn't
exist in isolation. They should be coupled with decriminalization and broader legal
and social efforts to normalize the sex industry.

"A Sex Workers' Union?!"

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

11/14

8/15/2014

Think Again: Prostitution

THAT'S RIGHT.
During demonstrations against France's proposed bill to criminalize the purchase
of sex, some protesters carried signs that read "SEXWORK IS WORK." This is true -and because it's work, it should treated as such. Today, a camp of legal experts
contends that the many problems sex workers face can be addressed with labor
laws. If sex work were considered a legitimate economic sector, the argument goes,
where work conditions, fair wages, injury compensation, and other basic
employment issues were matters of law, the sex industry and those within it would
be less exposed to violence and other harms.
Under a labor model, U.S. sex workers could report health risks at brothels to the
Occupational Safety and Health Administration. They could unionize and lobby
for stronger protections against police harassment. In the long run, they would be
viewed as citizens like any other, and their industry as a safe and acceptable one.
What's more, law professor Hila Shamir at Tel Aviv University has argued that
respecting labor rights in all sectors could help address many of the social and
economic forces that lead to trafficking. The same goes for the sex industry:
Ensuring safe work environments would decrease exploitation and make it less
enticing for sex workers to migrate abroad based on the promise of more money or
other benefits.
Provocative? Perhaps. But early research already shows that the labor model can
work.
Already, trade unions of sex workers have launched in the United Kingdom and
other European countries, and New Zealand has applied labor protections to the
sex industry. Advocacy groups have also begun to use courts to defend their labor
rights. In South Africa, an appeals court ruled in 2010 that a sex worker who said

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

12/14

8/15/2014

Think Again: Prostitution

she'd been unfairly fired from a massage parlor ("for refusing to perform oral sex,
spending time in her room with her boyfriend, choosing her clients and failing to
book enough customers," according to the Mail & Guardian) had a right to a
hearing before a government body that settles labor disputes. Assisting with the
case was the Cape Town-based Sex Workers Education and Advocacy Taskforce.

In lieu of formal In lieu of formal unions, sex workers' collectives also

assert power vis--vis brothel owners and police.
unions, sex
According to UNAIDS, Service Workers in Group, a
workers'
collective in Thailand, was able to improve
collectives also
relationships with the police force by introducing an
assert power vis- "internship" program, in which police cadets learn
-vis brothel
about HIV prevention and get to know collective
owners and police. members. This has helped improve police attitudes
toward sex work. Moreover, researchers found in a
2009 study that sex workers in collectives in South India have been able to deter
arrest and call on one another for assistance when faced with police harassment
and other issues.
All these examples show the ways in which a labor approach can improve sex
workers' lives. Yet moving public favor toward this model won't be easy. Beyond
changing minds and diminishing support for abolishing sex work, it will require
reallocating resources and amending or throwing out harmful policies. It will also
require managing backlash, like the international protest that opponents of
prostitution threatened the United Nations with last September, in response to the
body's various reports supporting the decriminalization of sex work.

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

13/14

8/15/2014

Think Again: Prostitution

As research and experience show, however, change is essential for the rights of sex
workers -- the very thing abolitionists claim they wish to protect. Sex workers
deserve not only the right to choose how they make a living, but also the right to be
free from the fear, mistreatment, and -- at the root of it all -- misconceptions that
have long plagued their industry.

*Correction: The print version of this article in the January/February 2014 issue
incorrectly stated the date of the rally by the more than 500 sex workers in Phnom
Penh who chanted "Save us from saviors." The rally was in June 2008, not June
2013. (Return to reading.)
Photos, top to bottom: VANDERLEI ALMEIDA/AFP/Getty Images; MIGUEL
MEDINA/AFP/Getty Images; MIGUEL MEDINA/AFP/Getty Images; VANDERLEI
ALMEIDA/AFP/Getty Images; World War II-era posters discouraging soldiers from
purchasing sex; Andrew Caballero-Reynolds/AFP/GettyImages

http://www.foreignpolicy.com/articles/2014/01/19/think_again_prostitution

14/14

NEWS

PROJECT ROSE IS ARRESTING SEX WORKERS IN

ARIZONA TO SAVE THEIR SOULS
Written by: Molly Crabapple

Illustration by Molly Crabapple

In May 2013, Monica Jones, a student and sex-work activist, was arrested for manifesting
prostitution by the Phoenix police.
Hers was one of more than 350 arrests carried out by Project ROSE in conjunction with Phoenix
police since the program's inception in 2011.
Project ROSE is a Phoenix city program that arrests sex workers in the name of saving them. In

five two-day stings, more than 100 police officers targeted alleged sex workers on the street and
online. They brought them in handcuffs to the Bethany Bible Church. There, the sex workers
were forced to meet with prosecutors, detectives, and representatives of Project ROSE, who
offered a diversion program to those who qualified. Those who did not may face months or years
in jail.
In the Bethany Bible Church, those arrested were not allowed to speak to lawyers. Despite the
handcuffs, they were not officially arrested at all.
In law enforcement, language goes through the looking glass. Lieutenant James Gallagher, the
former head of the Phoenix Vice Department, told me that Project ROSE raids were programs.
The arrests were contact. And the sex workers who told Al Jazeera that they had been
kidnapped in those windowless church roomsthey were lawfully detained.
Project ROSE is a service opportunity for a population involved in a very complex problem,
Lieutenant Gallagher wrote to me in an email. Sex workers were criminals and victims at once.
They were fair game to imprison, as long as they were getting help.
Project ROSE is the creation of Dr. Dominique Roe-Sepowitz. She is the director of the Office of
Sex Trafficking Intervention Research and a tenured professor at Arizona State University, where
Monica Jones is a student. Once, she and Monica had even debated Project ROSE.
According to Project ROSE's website, most costs are absorbed by taxpayers, who pay the
salaries of the officers carrying out the raids. Fifteen-hundred dollars more per day goes to the
Bethany Bible Church. Volunteers, including students from Arizona State University, fill in the
gaps. SWOP-Phoenix, an activist organization by and for sex workers, is filing freedom-of-
information requests to discover ROSE's other sources of funding.
At first, Project ROSE may seem similar to the many diversion programs in the United States, in
which judges sentence offenders to education, rehab, or community service rather than giving
them a criminal record. What makes ROSE different is that it doesn't work with the convicted.
Rather, its raids funnel hundreds of people into the criminal justice system. Denied access to
lawyers, many of these people are coerced into ROSE's program without being convicted of any
crime. Project ROSE may not seem constitutional, but to Roe-Sepowitz, rescue is more
important than rights.
In November 2013, Roe-Sepowitz told Al Jazeera: Once you've prostituted you can never not
have prostituted... Having that many body parts in your body parts, having that many body fluids
near you and doing things that are freaky and weird really messes up your ideas of what a
relationship looks like, and intimacy.

As a social worker, youre supposed to see your clients as human beings, Monica told me. But
her way of thinking is that once youre a sex worker, you can never not be a sex worker.
To the best of Google's knowledge, Roe-Sepowitz has not spoken to any press since Al Jazeera.
She ignored my repeated requests for comment, and she has only been willing to engage sex
workers if they risked their freedom by speaking to her class alongside members of the police.
Monica is a proud activist. Days ago she spoke to USA Today, comparing struggles against
Arizona's SB 1062 bill (which permits businesses to discriminate against LGBT individuals) to
those her family fought for their civil rights. On her third year of a social-work degree, Monica
volunteers with battered women, works at a needle exchange, and passes out condoms to sex
workers. She is a member of SWOP-Phoenix. She describes herself as homemaker at heart, a
girl who loves to cook, dance, and party, but also as an advocate.
Monica fears she was targeted for this advocacy.
On the day cops dragged Monica to Bethany Bible Church, she had posted on Backpage.com, an
advertising service used by sex workers, to warn them of a coming sting. The day before, she
had spoken against Project ROSE at a SWOP rally.
Monica told me she had accepted a ride home from her favorite bar the night of her arrest. Once
inside the car, undercover officers handcuffed her. They were rude, she said, calling her he and
it (Monica is trans, but her ID lists her as a female). They threatened to take her to jail. Like
many incarcerated trans women, Monica had previously been imprisoned with men. Frightened,
Monica agreed for them to take her to the church.
Ineligible for Project ROSE's diversion program because of previous prostitution convictions,
Monica now faces months in jail and worries incarceration will hamper her pursuit of a degree.
She has been questioned on the street three times since her arrest. Once, police handcuffed her
for 15 minutes.
Because I was very outspoken about the diversion program, being out there protesting and also
being a student of ASU School of Social Work, I feel like the police knew about me, Monica said.
I was very loud, so they could pick me out of the crowd.
Monica was arrested for manifesting prostitution, a statute in the Phoenix municipal code that
takes everything from starting conversations with passersby to asking if someone is an
undercover cop as proof that you're selling sex. In the state where Sheriff Joe Arpaio lost
massive lawsuits for racially profiling Latinos, manifesting prostitution is another way to
discriminate. The main victims are trans women of color like Monica, who are seen as sex
workers even if they're buying milk.

Some might say Project ROSE is harmless. After all, those eligible for diversion can have their
charges dropped if they're among the 30 percent who manage to complete the program. But many
of the hundreds arrested in Project ROSE's raids are not eligible, either because cops find drugs
or weapons on them or because they've been charged with prositution before.
All persons found to be participating in prostitution activity are breaking the law, regardless of
motive, says the fact sheet Project ROSE gives the media. Those not eligible are criminals. Their
freedom is a small price to pay for forcing others into a program that might remove them from the
life.
To effect this rescue, Project ROSE offers a buffet of services, including emergency housing,
detox, and counseling. All these services are available without being arrested, Jaclyn Dairman, an
activist with SWOP-Phoenix, told me.
But at ROSE's heart is DIGNITY Diversion, 36 hours of classroom time run by Catholic Charities.
Catholic Charities' website boasts a photo of a white girl, a tear running down her cheek. Who
could resist opening their wallets before such innocence destroyed? Catholic Charities offers
walking tours of the sketchy parts of town. Tender-hearted folk can gawk at sex workers. These
excursions are like the slum tours beloved by Victorians. Popular enough in the 1890s to be listed
in guidebooks, these tours of impoverished London neighborhoods gave a philanthropic gloss to
the thrill of mingling with the poor in brothels, bars, and boarding houses. Then and now,
participants got the self-satisfaction of pity mixed with the frisson of proximity to vice.
This cocktail may be why sex trafficking, as opposed to trafficking in maids or construction
workers or farm labor, is always a fashionable cause.
Monica is a graduate of DIGNITY Diversion. Forced into this program by another prostitution
arrest, Monica sat in a classroom from 8 AM to 4 PM, without food, while vice cops described
girls overdosing on heroin. Jail was held over the heads of attendees until they finished the
program, though many were going broke from their loss of sex-work income. Monica described
the class as having the religious overtones of an Alcoholics Anonymous meeting. In keeping with
the program's Catholicism, no condoms were provided. Neither was child care.
I wasnt ashamed about being a sex worker. I kept bringing this up during the diversion program,
Monica told me. Girls would ask me why I didn't feel this way. Well, 'cause I dont. I have the right
to my own body.
Catholic Charities requested that Monica leave early, fearing her influence on others.
Monica's trial is in March. The prisons she may be sentenced to are brutal. Arizona is the home of

the notorious Tent City, an outdoor complex of bunks and razor wire, where prisoners' shoes melt
from the relentless heat.
In 2009, Marcia Powell, a sex worker serving two years for agreeing to a $20 blowjob, was left in
an open cage in the maximum-security yard of Perryville Prison Complex for four hours. Guards
ignored her pleas for water. Under the pitiless sun, her organs failed her. Her corpse was covered
with burns.
No guard has ever been charged for Marcia Powell's death.
There is no gray. It's illegal behavior, Dominique Roe-Sepowtitz said, speaking about prostitution
to Al Jazeera.
Like Catholic Charities' hooker tours, her attitude is Victorian. To those like Roe-Sepowitz, there
are God's poor and the Devil's poor. There are victims Project ROSE can save, and there are
repeat offenders, unrepentant whores. They can be locked in cages and dismissed.
When the police brought Monica to the Bethany Baptist Church, she saw Dominique Roe-
Sepowitz. She refused to talk to me, Monica said. She wanted nothing to do with me.
Why would she? It's easier to speak for people if you pretend they have no voice.
Follow Molly on Twiiter @MollyCrabapple

RECOMMENDED

On Turning 30

It Dont Gitmo Better Than

This

New York Cops Will Arrest

You for Carrying Condoms

The World of a
Professional Naked Girl

Arizona Activist
Found Guilty of
'Walking While
Trans'
By Sunnivie Brydum
Originally published on
Advocate.com April 15 2014 2:52
PM ET
A transgender woman and
advocate for the rights of sex
workers in Arizona has been
convicted of "manifesting
prostitution" after she accepted a
ride from an undercover police officer in an antiprostitution sting in Phoenix last May.
Monica Jones is not a sex worker. She is a student at Arizona State University, a black
transgender woman, and an advocate for sex workers who volunteers her time with the Sex
Workers Outreach Project in Phoenix. But according to local law, Jones's behavior
walking down the street and engaging others in conversation is criminal. Jones was
convicted of "manifesting prostitution"Friday by a Phoenix judge, reports The Arizona Republic.
Jones pl eaded not guilty and said she intends to appeal the decision.
In Phoenix it is illegal to repeatedly engage a passerby in conversation while walking down
the street. According to city law, that behavior an indication of one's intent to "manifest
prostitution," and anyone who does so is subject to arrest. That same law also deems waving
at cars in an attempt to stop them, asking someone if they are a police officer, or attempting to
touch someone's genitals as evidence of intent to engage in prostitution, according to the
Republic.
The American Civil Liberties Union, which joined Jones in her defense, contends that the law
is overly broad and blatantly unconstitutional. The vague language in the statute encourages
arresting officers to engage in profiling, contends the human rights organization, wi th a
particularly powerful impact on transgender women of color, who are often unfairly
characterized as sex workers.
The ACLU notes that repeatedly engaging passersby in conversation could just as easily be
indicative of being lost and seeking directions, or working for a political canvassing
organization.
"The difference between 'innocent' and 'criminal' behavior often comes down to how a

person looks," writes the ACLU on its website. "Transgender women of color are often profiled
by police as engaging in sex work for simply being outside and going about their daily
routines. Amnesty International documented this disproportionate targeting by police of
transgender women as sex workers in a 2005 report. '[S]ubjective and prejudiced perceptions
of transgender women as sex workers often p lay a signicant role in ofcers' decisions to
stop and arrest transgender women,' the report concluded."
The disproportionate rate at which transgender women, especially those who are also
women of color, tend to be profiled as sex workers or others with criminal intent has led to a
phenomenon known among advocates as "walking while trans." In an interview with the
ACLU, Jones explained how the term c ame into being and why it's an accurate descriptor for
the charges under which she was prosecuted.
"'Walking while trans' is a saying we use in the trans community to refer to the excessive
harassment and targeting that we as trans people experience on a daily basis," said Jones.
"'Walking while trans' is a way to talk about the overlapping biases against trans people
trans women specifically and against sex workers. It's a known experience in our
community of being routinely and regularly harassed and facing the threat of violence or
arrest because we are trans and therefore often assumed to be sex workers."
Just a day before her arrest last May, Jones participated in a demonstration protesting the
Phoenix ordinance and a city-sponsored program that purportedly aims to help sex workers
find al ternative employment, but which detractors say results in increased incarceration
among sex workers, known as Project ROSE.
In conjunction with the department of social work at Arizona State University, Catholic
Charities, and the Phoenix Police Department, Project ROSE is a "prostitution-diversion"
program that uses police stings both online and in the street to arrest alleged sex
workers, then o ffer them an alternative to incarceration if they agree to enter a pre-sanctioned
multiweek program that offers the the workers temporary housing and health services while
they are engaged in it. But Project ROSE reports just a 28 percent success rate, meaning more than
70 percent of those who agree to participate in the program "fail" out of it, at which point they
are placed in jail and prosecuted.
Jones, an active member of Sex Workers Outreach Project, which opposes the
criminalization of sex work, says the program only serves to further criminalize sex work and
take advantage of those often disadvantaged workers.
According to a Huffington Post report from Darby Hicky, those alleged sex workers arrested
in Phoenix sting operations conducted under Project ROSE are brought to a church, where
they are interviewed by police and prosecutors, but are not allowed to speak with defense
attorneys. In an effort to "help victims," Project ROSE all but demands those arrested plead
guilty by joining the program, then promptly places them in jail if they fail to meet attendance
requirements, which 70 percent do, according to Hicky.
Since Jones was arrested last May, she told the ACLU, she has been harassed by police
officers and questioned in relation to suspected prostitution activities four separate times:
once while Jones was walking to the grocery store, another time when she was on her way to
a local bar, and once while chatting with a friend on the sidewalk. Jones said officers have
threatened her with the "manifestation with intent to prostitute" charge while she was on her
way to a neighborho od bar.

But Jones isn't taking last week's conviction lying down. She plans to appeal the decision
and is supported in that effort by the ACLU and a growing number of sex work advocates,
immigrants' rights groups, and trans actress and advocate Laverne Cox, who called for greater
awareness of the plight of Jones and women like her during her speech accepting the
Stephen F. Kolzak award at Saturday's GLAAD Med ia Awards in Los Angeles.
Source URL: http://www.advocate.com/politics/transgender/2014/04/15/arizona-activist-found-guilty-walking-while-
trans
Links:
[1] http://www.advocate.com/
[2] http://www.azcentral.com/story/news/local/phoenix/2014/04/12/transgender-woman-convicted-prostitutionrelated-charge/7633091/
[3] https://www.aclu.org/blog/lgbt-rights-criminal-law-reform-hiv-aids-reproductive-freedom-womensrights/arrested-walking
[4] http://www.maketheroad.org/pix_reports/MRNY_Transgressive_Policing_Full_Report_10.23.12B.pdf
[5] http://www.streetwiseandsafe.org/wp-content/uploads/2011/01/StonewalledAI.pdf
[6] http://www.thenationreport.org/phoenix-sex-worker-outreach-project-protests-expansion-of-diversion-program/
[7] http://www.advocate.com/arizona
[8] http://www.advocate.com/politics/transgender

Guilty Until Proven Innocent: How Federal Law Enforcement Circumvents

Constitutional Rights for the Muslim Community
Since the September 11, 2001 terrorist attacks, many law enforcement policies and practices have
been implemented which significantly impact American Muslim community members. This CLE
will focus on how the U.S. Governments current security measures target the Muslim community,
impinging on these community members ability to travel, obtain clearance for employment in
governmental positions and in foreign agencies, and secure immigration benefits.
This CLE will educate attendees on legal and political strategies for opposing a broad range of
security-related policies, all of which have no real oversight or standards in place. Presenters will
explain how litigants are challenging the No Fly List (prohibiting individuals from flying to, from,
or over U.S. territory), the removal of individuals from airplanes based on profiling, and a covert
program implemented by the U.S. Citizenship & Immigration Services which results in delays and
denials of immigrant benefit applications. There will also be a discussion of legal and political
strategies to address other security measures, such as the use of the FBIs Terrorism Screening
Database, resulting in extensive travel delays and government employment clearance denials for
many Muslim individuals.
Presenters:
Rabya Khan: Staff Attorney at Council on American-Islamic Relations, Chicago Office (CAIRChicago)
Hina Shamsi: Director of the ACLUs National Security Project
Michael Steinberg: Legal Director of the ACLU of Michigan
Shoshana Hebshi: Writer, editor, and communications specialist who is suing Frontier Airlines,
Detroit Metro Airport officials, and federal authorities for her unlawful arrest, detention and stripsearch
Kevin Vodak: Litigation Director at CAIR-Chicago
Rabya Khan is a Staff Attorney at the Chicago Office of the Council on American-Islamic Relations
(CAIR-Chicago). Rabya received her Bachelors degree in Political Science from the College at the
University of Chicago, and her Juris Doctorate from DePaul University College of Law. For the
past three years, Rabya has worked with Kevin Vodak on protecting civil liberties for Muslim
community members in Illinois and combatting Islamophobia. She has specialized in immigration
matters, recently created a Syrian Asylum Project, as well as expanded CAIR-Chicagos Know Your
Rights presentations in mosques and schools.
Hina Shamsi is Director of the ACLUs National Security Project, dedicated to ensuring that U.S.
national security policies and practices are consistent with the Constitution, civil liberties, and
human rights. She has litigated cases upholding the freedoms of speech and association, and
challenging targeted killing, torture, unlawful detention, and post-9/11 discrimination against
racial and religious minorities. Her work includes a focus on the intersection of national security
and counterterrorism policies with international human rights and humanitarian law. She
previously worked as a Staff Attorney in the National Security Project and was the Acting Director
of Human Rights First's Law & Security Program. She also served as Senior Advisor to the U.N.

Special Rapporteur on Extrajudicial Executions. Hina is one of the attorneys litigating the ACLUs
case challenging the No Fly List.
Michael Steinberg has served as Legal Director of the ACLU of Michigan since 1997 and is
responsible for overseeing all litigation taken on by the ACLU throughout the state. Michael
earned a B.A. with honors from Wesleyan University in 1983 and is a 1989 cum laude graduate of
Wayne State University Law School. Following a judicial clerkship, he established his own private
practice in Ann Arbor where he specialized in civil rights litigation and civil and criminal appeals.
On behalf of the National Lawyers Guild, Michael successfully challenged the Ann Arbor Police
Departments practice of coercing African American men into giving blood for DNA testing during
the Ann Arbor serial rapist investigation. Since joining the staff of the ACLU, Michael has worked
on numerous high impact, high profile cases on a wide range of civil liberties issues including:
freedom of speech and expression, post 9-11 issues, religious freedom, racial justice, LGBT rights,
police misconduct, womens rights, reproductive freedom, voting rights, right to counsel and
prisoner rights. He is currently litigating Shoshana Hebshis case. Michael started the
ACLU/Wayne State University Civil Rights and Civil Liberties Clinic last year and is currently
teaching public interested litigation at the University of Michigan Law School.
Shoshana Hebshi is a writer, editor, and communications specialist based in Northwestern Ohio.
Shoshana is challenging Frontier Airlines, Detroit Metro Airport officials and federal authorities for
her unlawful arrest, detention and strip-search. Shoshana alleges that she was racially profiled and
targeted because of her ethnicity.
Kevin Vodak is the Litigation Director at CAIR-Chicago. In this position, Kevin analyzes all of the
complaints received in the Civil Rights Department and determines the best strategy for reaching
the most successful resolutions, as well as working to strengthen policies in the public and private
sectors to combat Islamophobia. Kevin has a Juris Doctor degree from DePaul University College
of Law and a Bachelors degree in Philosophy from North Central College. Prior to joining CAIRChicago in July 2008, Kevin dedicated his legal career to protecting individuals civil rights by
working in small law firms for 8 years. At CAIR-Chicago, Kevin has continually addressed FBI
contacts in the Muslim community and travel delays for community members, litigated cases
involving free speech and association, and resolved delays for Legal Permanent Residents
obtaining U.S. citizenship.

National Lawyers Guild Panel Discussion

Guilty Until Proven Innocent:
How Federal Law Enforcement Circumvents Constitutional Rights

1) ACLU Briefing Paper: U.S. Government Watchlisting; Pgs. 1-11

2) Latif v. Holder (3:10-cv-00750-BR), Judges Decision (2014.06.24); Pgs. 12-76
3) Muhanna v. USCIS (2:14-cv-05995-PSG), Complaint (2014.07.31); Pgs. 77-111
4) Intercept Article: Blacklisted: The Secret Government Rulebook For Labeling You a
Terrorist (2014.07.23); Pgs. 112-123

U.S. Government Watchlisting:

Unfair Process and Devastating Consequences

March 2014

U.S. Government Watchlisting: Unfair Process and Devastating Consequences

Introduction
The U.S. government today maintains a massive watchlisting system that risks stigmatizing hundreds of
thousands of people, including American citizens, as known or suspected terrorists based on secret
standards and secret evidence, without a meaningful process to challenge error and clear their names.
The watchlists in this system are shared widely within the federal government, with state and local law
enforcement agencies, and even with foreign governments, heightening the negative consequences for
listed individuals. Being placed on a U.S. government watchlist can mean an inability to travel by air or
sea; invasive screening at airports; denial of a U.S. visa or permission to enter to the United States; and
detention and questioning by U.S. or foreign authoritiesto say nothing of shame, fear, uncertainty,
and denigration as a terrorism suspect. Watchlisting can prevent disabled military veterans from
obtaining needed benefits, separate family members for months or years, ruin employment prospects,
and isolate an individual from friends and associates.
Given the gravity of these consequences, it is vital that if the government blacklists people, the
standards it uses are appropriately narrow, the information it relies on is accurate and credible, and the
manner in which watchlists are used is consistent with the presumption of innocence and the right to a
hearing before punishmentlegal principles older than our nation itself. Yet the government fails these
basic tests of fairness. It has placed individuals on watchlists, and left them there for years, as a result of
blatant errors. It has expanded its master terrorist watchlist to include as many as a million names,
based on information that is often stale, poorly reviewed, or of questionable reliability. It has adopted a
standard for inclusion on the master watchlist that gives agencies and analysts near-unfettered
discretion. And it has refused to disclose the standards by which it places individuals on other watchlists,
such as the No Fly List.
Compounding this unfairness is the fact that the redress procedures the U.S. government provides for
those who have been wrongly or mistakenly included on a watchlist are wholly inadequate. Even after
people know the government has placed them on a watchlistincluding after they are publicly denied
boarding on a plane, or subjected to additional and invasive screening at the airport, or told by federal
agents that they will be removed from a list if they agree to become a government informantthe
governments official policy is to refuse to confirm or deny watchlist status. Nor is there any meaningful
way to contest ones designation as a potential terrorist and ensure that the U.S. government, and all
other users of the information, removes or corrects inaccurate records. The result is that innocent
people can languish on the watchlists indefinitely, without real recourse.
A bloated and unfair watchlist system does not make us secure, and the ACLU has long called for
fundamental reform. If the government is to use watchlists, it must institute narrow, specific criteria for
placing individuals on them; apply rigorous procedures for reviewing, updating, and removing erroneous
entries; and limit the use of such lists such that they do not amount to punishment without charge.
Individuals must be provided with a meaningful, participatory process by which they can challenge their
inclusion on a watchlist before a neutral decision-maker. Ultimately, Congress and the Obama
1

administration must rein in what the Ninth Circuit Court of Appeals has called a vast, multi-agency,
counterterrorism bureaucracy that tracks hundreds of thousands of individuals 1a bureaucracy that
remains secret and unaccountable to the public or the individuals that it targets for blacklisting.

Individual Cases: No Fly List

Marine veteran Abe Mashals inclusion on the No Fly List made it impossible for him to work
for clients of his specialized dog training business who lived beyond driving distance, resulting
in the loss of significant business income. FBI agents told Mashal that he would be removed
from the No Fly List if he agreed to become an informant. 1
Steven Washburn, an Air Force veteran and New Mexico resident, was prevented for years
from being with his wifea Spanish citizen who was unable to secure a visa to travel to the
United Statesbecause of his status on the No Fly List.2
Kevin Iraniha, an Iranian-American peace activist, was barred from flying home to San Diego
from Costa Rica, where he was studying at the UN-accredited University for Peace. Iraniha and
his father, both of whom were told they had been placed on the No Fly list, endured hours of
interrogation on their religion, Iranihas travel to Muslim countries, and his views on Palestine
and U.S. foreign policy.3
In April 2012, inclusion on the No Fly List prevented Air Force veteran Saadiq Long from flying
from Qatar to his childhood home in Oklahoma to visit his mother, whose health had been
deteriorating due to congestive heart failure. 4
1

Latif v. Holder, Case No. 10-cv-750, Dkt. No. 92-9 (D. Or. Mar. 22, 2013).
Id., Dkt. No. 92-13.
3
NBC News, California student takes the long way home to US after no fly designation (June 7, 2012).
4
CAIR-Oklahoma, CAIR officials: Man sentenced to life without air travel (Feb. 14, 2013).
2

What Is the Governments System of Watchlisting?

In 2003, President Bush directed that the government consolidate its approach to screening known or
suspected terrorists, 2 which eventually resulted in the creation of bloated watchlist system that contains
the identities of significant numbers of people who are neither known nor appropriately suspected
terrorists. The FBIs Terrorist Screening Center (TSC) is the hub of this system. It maintains a master
watchlist called the Terrorist Screening Database (TSDB), 3 and information from the TSDB flows to
various other watchlists and databases, including the following:

The No Fly List (maintained by the TSC), a subset of the TSDB that identifies individuals who are
prohibited from flying to, from, or over U.S. territory. 4

The Selectee List (also maintained by the TSC), another subset of the TSDB that identifies
individuals who are subjected to additional questioning, inspection, and screening before being
allowed to board flights to, from, or over U.S. territory.
The Consular Lookout and Support System (CLASS), maintained by the State Department to
identify individuals who may be ineligible for a visa or passport. 5
TECS (formerly the Treasury Enforcement Communications System), maintained by Customs and
Border Protection (CBP) within the Department of Homeland Security (DHS). TECS is the primary
system CBP uses to determine whether persons seeking to enter the country are admissible. 6
According to the Government Accountability Officethe independent, nonpartisan agency that
investigates how the government spends taxpayer dollarsTECS is also used by approximately
20 other federal agencies, ranging from the Internal Revenue Service to the Drug Enforcement
Administration. 7
The Known or Appropriately Suspected Terrorists file (KST), a subset of the TSDB maintained by
the TSC for dissemination nationwide to federal, state, and local law enforcement through the
National Crime Information Center database.

Thus, the contents of the TSDBthe master government watchlistreach myriad government agencies
and impact many areas of peoples lives. Information from the TSDB is not only shared widely within the
federal government and among state and local law enforcement agencies, but also exported to several
non-federal governmental watch lists 8 (we do not know which jurisdictions or for what purpose) and at
least 22 foreign governments. 9

How Many People Are Included on Terror-Related Watchlists?

The government has not revealed exactly how many individuals are included on any given watchlist, but
according to the National Counterterrorism Center (NCTC), the consolidated terrorist watchlist
contained approximately 875,000 people as of December 2012. 10 Whatever the precise number of listed
individuals, it is clear that the TSDB has grown substantially over time, from about 158,000 records in
June 2004 to over 1.1 million records in May 2009 (although the number of unique persons on the
watchlist is less than the total number of records). 11 It is also clear that thousands of U.S. persons are
listed in the TSDB at any given time. 12
The No Fly List and the Selectee List are smaller subsets of the TSDB, but their growth in recent years has
been breathtaking, according to a researcher who has tracked the size of the watchlists. 13 The
Associated Press reported in February 2012 that the No Fly List alone had more than doubled in the
previous year, and that there were approximately 21,000 individuals on that list, including roughly 500
U.S. citizens and lawful permanent residents. 14

What Standard Must Be Met for Inclusion on Government Watchlists?

We dont know. We know only the standard for inclusion in the TSDB, and that standard is not only so
confusing as to be meaningless, but also expansive enough to encompass a range of innocent and First
Amendment-protected conduct. Prior to 2007, no uniform standard existed for nominations to the
TSDB; each nominating agency simply followed its own standard. 15 Now DHS maintains that only known
3

or reasonably suspected terrorists may be included in the TSDB. 16 The TSC defines a reasonably
suspected terrorist as an individual who is reasonably suspected to be, or have been, engaged in
conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities
based on articulable and reasonable suspicion. 17

On its face, this standard is baffling and circular: it essentially defines a suspected terrorist as a
suspected terrorist. The standard is certainly not sufficient to ensure that a person is truly a threat.
It lacks any requirement that an individual knowingly engage in wrongful conduct, and it permits weak
speculative inferences. 18 Indeed, the phrases related to and in aid of are broad enough to
include First Amendment-protected speech and association, or conduct that is entirely unwitting.
Mere proximity to a suspected terrorist should not make one a suspected terrorist, but that is what
the standard allows. And it is not at all clear what separates a reasonable-suspicion-based-on-areasonable-suspicion from a simple hunch.

Individual Cases: Selectee List and Border Questioning

In August 2009, Bollywood star Shah Rukh Khan underwent lengthy, intrusive questioning by U.S.
border officials, apparently because his name appeared on a watchlist. Khan was visiting the
United States to promote a film concerning racial profiling of Muslims in the United States.1
Journalists have undergone intrusive questioning and searches at the border for no apparent
reason other than their religion or ethnic background. On the Media producer Sarah
Abdurrahman was detained, along with family members and friends, for over five hours without
explanation, while officers searched their cars and cell phones. HuffPost Live producer Ahmed
Shihab-Eldin says he is held and questioned for hours every time he returns to the United States
from abroad.2
Erich Scherfen, a commercial pilot and veteran of the Gulf War, was placed on the Selectee List
after a co-worker told the state police that Scherfen had retrofitted the family car to carry bombs.
In reality, Scherfen had simply removed a broken back seat from the car. Scherfen was suspended
from his job, and he and his wife were repeatedly subjected to humiliating questioning, searches,
and detention for hours when they attempted to fly or cross the border.3
1

Bollywood star Shah Rukh Khan detained at US airport, The Telegraph (Aug. 17, 2009).
Harrison Jacobs, American Muslim Reporter Describes Dehumanizing Treatment at US Border, Business Insider (Sept.
24, 2013). Ahmed Shihab-Eldin, Davos to Detention: Why I Hate Coming Home to the America, The WorldPost (Jan. 28,
2014).
3
Mike McIntire, Ensnared by Error on Growing U.S. Watch List, New York Times (Apr. 6, 2010).
2

Thats just the standard we know about: What we dont know about the standards for placing
individuals on watchlists easily eclipses what we do know. For instance, we do not know:
4

The standards for inclusion on either the No Fly List or the Selectee List. Government
representatives have acknowledged that additional derogatory requirements are required for
inclusion on those lists, beyond that which is required for inclusion in the TSDB. 19 To date, the
government has refused to disclose those requirements.
The substantive standards for inclusion of individuals on any of the other watchlists, such as
CLASS, TECS, or KST.
How the various nominating agencies interpret the standard(s) for nomination, how widely
those interpretations vary across the intelligence community, or whether any agency has issued
guidance elaborating on the standard(s).
How the TSC interprets the term terrorism. Indeed, the GAO has noted that agencies utilizing
watch list records recognize various definitions of the term. 20
The extent or content of any training of personnel at nominating agencies regarding the
standard for inclusion on watchlists.

The permissive standard for labeling someone a terrorist raises serious questions about the reliability of
the intelligence underlying government watchlists. That intelligence originates with agencies such as the
CIA, NSA, or the Defense Intelligence Agency, but the watchlisting process does not appear to involve
rigorous review of the quality or credibility of the intelligence. 21 Absent uniform, high-level assessment
of that intelligence, watchlisting decisions are left to the discretion of unknown intelligence personnel
and are insulated from review by the bureaucratic layers that are built into the system.

Individual Cases: Rahinah Ibrahim

Rahinah Ibrahim, a Stanford PhD student and Malaysian citizen, was prevented from boarding a
flight in San Francisco, handcuffed (despite being wheelchair-bound at the time), and held in a
detention cell for hours in January 2005 based on what turned out to be a bureaucratic error by
the FBI that placed her on the No Fly List. The government fought to avoid correcting the error for
years, even invoking the state secrets privilege in an unsuccessful effort to prevent judicial
scrutiny. She was permitted to leave the country, but to this day, she has been barred from
returning, even though the government admits that she should not have been placed on the No
Fly List.1
1

Ibrahim v. Dept of Homeland Security, Case No. C06-00545 WHA at 8, 9-11 (N.D. Cal. Feb. 6, 2014).

Have People Been Watchlisted Based on Mistakes or Incorrect Information?

Yes. Well-publicized cases such as that of Rahinah Ibrahim (see text box) have confirmed that watchlist
entries result from blatant errors. Government audits suggest that these kinds of errors may occur at an
alarmingly high rate.

A March 2008 report by the Department of Justice Inspector General described numerous
weaknesses in FBI watchlisting procedures and concluded that the potential exists for the
5

watchlist nominations to be inappropriate, inaccurate, or outdated because watchlist records

are not appropriately generated, updated or removed as required by FBI policy. 22
A year later, in May 2009, the same Inspector General found that 35 percent of the nominations
to the lists were outdated, many people were not removed in a timely manner, and tens of
thousands of names were placed on the list without an adequate factual basis. 23
A review by the TSC determined that 45 percent of the watchlist records related to redress
complaints were inaccurate, incomplete, outdated, or incorrectly included. 24

When flawed or unreliable information makes its way into the watchlist database, it tends to stay there.
Agencies have paid far greater attention to putting people on watchlists than to reviewing or purging of
erroneous or outdated information. In short, there is every incentive to place individuals on a watchlist,
but little incentive to clear them. And even if bad information is removed from one list, it may remain on
other lists to which it was previously exported. As U.S. District Judge William Alsup noted, [o]nce
derogatory information is posted to the TSDB, it can propagate extensively through the governments
interlocking complex of databases, like a bad credit report that will never go away. 25

Individual Cases: Notable Watchlist Failures

Nobel laureate and former South African President Nelson Mandela was included on U.S. terrorist
watchlists until 2008, when he was finally removed from the lists by an act of Congress.1
Numerous other public figures, including former Sen. Ted Kennedy, Rep. John Lewis, and the
musician formerly known as Cat Stevens, have all experienced repeated travel complications
because they are either watchlisted or share names with those on watchlists.2
1
2

Mandela off U.S. terrorism watch list, CNN.com (July 2, 2008).

Am. Civ. Liberties Union, Unlikely Suspects, available at www.aclu.org/technology-and-liberty/unlikely-suspects.

What Are the Consequences for Individuals Who Are Included on a Watchlist?
The consequences of inclusion on a watchlist can be devastating and profound. Depending on the
watchlist(s) on which individuals appear, they may be effectively banned from commercial air travel and
experience uncertainty and significant delays in returning home to the United States from overseas.
Others may be subjected to clandestine surveillance at home or abroad, experience invasive inspections
and screening at airports and border facilities, or they may be stopped and questioned repeatedly by
law enforcement officers, apparently without reasonable suspicion.
Consequences vary depending on the specific watchlist on which an individual is included:

Inclusion on the No Fly List imposes particularly heavy burdens on listed individuals. 26 People on
the No Fly List are stigmatized as suspected terrorists, barred from commercial flight altogether,
and have been detained, interrogated, surveilled, and subjected to long-term investigation. U.S.
District Judge Anthony Trenga concluded that placement on the No Fly List is life defining and

life restricting across a broad range of constitutionally protected activities and aspirations; and a
No Fly List designation transforms a person into a second class citizen, or worse. 27
Individuals on the Selectee List are subjected to additional screening and questioning every time
they seek to board an airplaneand can be subjected to delays, humiliation, and improper
questioning about the First Amendment-protected beliefs and associationsno matter how
many times they have been through such screening and cleared security.
Inclusion in CLASS may preclude issuance of a visa to a non-citizen, or it may complicate a U.S.
citizens ability to obtain or renew a passport.
A watchlist notation in TECS may mean denial of permission to enter the United States, along
with detention, invasive screening, and questioning by border officials. CBP has also shared
watchlist-related information with ship captains, who have then denied listed individuals
permission to board ocean-going vessels.
Inclusion in KST may mean prolonged traffic stops or other encounters with police, after which
local police become aware of the listed persons inclusion on a federal watchlist, while the listed
person remains unaware of her watchlist status.
Under the secret Controlled Application Review and Resolution Program (CARRP), U.S.
Citizenship and Immigration Services denies or delays the citizenship applications of anyone who
appears in the TSDBi.e., anyone USCIS considers known or suspected terrorists. 28

Another major but seldom acknowledged consequence of inclusion on a watchlist is the increased
likelihood of investigation by the FBI. While investigation of suspected threats based on credible
intelligence may be valid, mere inclusion in the TSDB (which, as noted above, is based on information of
variable quality) should not be enough to prompt an investigation. Yet that apparently happens
routinely: according to the TSCs own materials, the TSC serve[s] as the originator or impetus for many
new FBI preliminary investigations and full FBI counterterrorism investigations. 29 Because the threshold
for opening an FBI investigation is very low, 30 someone who has been wrongly or mistakenly watchlisted
may find herself subjected to an intrusive and lengthy investigation by the FBI. Such an investigation not
only places its subject under serious stress but also opens the door to pretextual prosecution, pressure
to become an informant, or deportation for reasons unrelated to terrorism. 31
Inclusion on a watchlist can also have serious secondary consequences, such as an inability to obtain
employment, either because employment requires travel or a visa, or because the government shares
the fact of an individuals inclusion on a watchlist with a prospective employer, such as a government
contractor. Watchlisted individuals have reported to the ACLU that they have been unable to procure
commercial or professional licenses, andto the extent that travel is requiredwatchlisting may
prevent an individual from reuniting with family or friends, or pursuing educational opportunities at a
location of ones choosing.
Watchlisting consequences can be even more pernicious abroad, where individuals may be more
vulnerable to abuse by authorities. U.S. citizens and non-citizens who have been denied boarding on
aircraftpresumably because they are included on the U.S. No Fly Listhave reported that foreign
security services have detained, interrogated, and in some cases abused them. 32 Some U.S. citizens have
7

experienced significant delays in exercising their absolute right to return to the United States, either
because they have been prohibited from boarding U.S.-bound airplanes or because U.S. embassy
personnel abroad have seized their passports. Numerous individuals who have been stranded abroad
also report that the FBI has used their apparent inclusion on a watchlist as a means of pressuring them
to become informants on their communities. 33
Finally, the stigma, humiliation, fear, and uncertainty that come with the knowledge that one has been
placed on a watchlist can hardly be overstated. Stigmatization as a suspected terrorist is one of the
worst labels our government can place on an individualit is one of the cruelest consequences of
inclusion on a watchlist.

Individual Cases: KST, State and Local Law Enforcement

The Denver police department compiled detailed information on people engaging in protected
political activity, including a Quaker peace-advocacy group and a gun rights lobbying
organization. When a Denver man who was a member of the gun rights group subsequently had
a fender-bender, a routine police check of the National Crime Information Center database
showed that the man was listed as a member of a terrorist organization, even though his record
had previously been expunged from the Denver database after a lawsuit brought under the
Freedom of Information Act.1
Francisco Martinez, a civil rights lawyer and activist in the Chicano movement, was stopped by
local law enforcement in multiple states because he had been watchlisted, despite having been
cleared of terrorism-related charges decades earlier. The federal government paid Martinez over
$100,000 in 2007 to settle lawsuits arising out of the stops.2
In 2008, Maryland State Police placed 53 nonviolent political activists into state and federal
databases, with labels indicating that they were terror suspects. During a hearing, it was revealed
that these individuals and organizations had been placed in the databases because of a
surveillance operation that targeted opponents of the death penalty and the Iraq war. 3
1

Anya Bernstein, The Hidden Costs of Terrorist Watch Lists, 61 BUFF. L. REV. 461, 466-67 (2013).
Ellen Nakashima, Terror Suspect List Yields Few Arrests, Wash. Post (Aug. 25, 2007).
3
Lisa Rein, Md. Police Put Activists Names On Terror Lists, Wash. Post (Oct. 8, 2008).
2

What Redress Procedures Are Available for Watchlisted Individuals?

Individuals who believe they have been incorrectly watchlisted currently have only one option for
seeking redress: the DHS Traveler Redress Inquiry Program (DHS TRIP). The redress offered by that
program is utterly inadequate. At no point does the government officially confirm or deny that a person
has been placed on a watchlist, even after government action makes watchlist status blatantly clear.

DHS TRIP is intended as a single point of contact for individuals who have experienced difficulties with
travel, screening, or crossing U.S. borders. An aggrieved traveler submits an inquiry form to DHS, which
determines whether the inquiry appears related to the TSDB. If so, the inquiry is referred to the TSC,
which determines whether the traveler is an exact match to an individual listed in the TSDB. Where the
traveler appears to be a match, TSC contacts the agency that originally watchlisted a person to
determine whether the individuals current watchlisting status is appropriate. TSC then notifies the
agency that encountered the individual (such as the Transportation Security Administration) of the
results of the inquiry, and that agency sends a letter to the traveler.
The letter does not reveal whether the individual is, or ever was, on a watchlist, or any reasons for the
individuals status. Indeed, the letter reveals little other than that we have conducted a review of any
applicable records in consultation with other federal agencies as appropriate, and it has been
determined that no corrections or changes are warranted at this time. The letter may include a
Redress Control Number that the individual is to use when attempting to travel or board an aircraft in
the future, but it is never clear that using that number will resolve or improve the problem the traveler
had in the first place. And while watchlisted individuals have a statutory right to have the DHS TRIP
determination reviewed by a federal court of appeals, that review is based on an agency record to which
the watchlisted person has no access at all, and cannot meaningfully challenge.
Thus, DHS TRIP merely reflects and perpetuates the governments policy of denying listed individuals
even the most basic information about the reasons for their inclusion on a watchlist, without a hearing
or opportunity to clear their names and restore their liberties.

What Should Be Done to Fix the Watchlisting System?

The ACLU has long called for major changes to the governments system of watchlists, including the
following measures:

Improvements in the accuracy of the lists. Federal agencies need clear, uniform, narrowlywritten standards that detail the specific evidentiary requirements for placing a person on a list.
Bloated watchlists waste screeners' time and divert their energies from looking for true threats.
A rigorous process for fixing mistakes. Routine, comprehensive audits must result in the removal
of outdated or inaccurate information, and where no longer warranted, watchlist entries must
be purged.
Meaningful redress for erroneously listed individuals. Individuals must be permitted to contest
the basis for their inclusion on a watchlist, including meaningful access to evidence used against
them, before a neutral decision maker.
Limitations on the ways in which watchlists can be used. Grave threats to our country will not be
averted by using watchlists to deny employment, withhold commercial or professional licenses,
or otherwise disadvantage and isolate listed individuals.

Conclusion
If the government is to maintain watchlists, they must be targeted at genuinely dangerous individuals.
As implemented, however, the governments watchlisting system amounts to an unchecked exercise of
9

power over innocent citizens and non-citizens alike. Countless individuals have been placed on
watchlists based on intelligence of unknown reliability and according to standards that that are either
secret or so broad as to be formless. Placement on such watchlists can entail life-altering consequences
without any meaningful mechanism for determining, let alone contesting, ones watchlisting status.
Fundamental changes to this systemincluding narrow listing standards, rigorous review, and
meaningful redress proceduresare long overdue.
1

Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983, 988-89 (9th Cir. 2012).
Homeland Security Presidential Directive6, Integration and Use of Screening Information to Protect Against
Terrorism, 39 WEEKLY COMP. PRES. DOC. 1234 (Sept. 16, 2003).
3
Fed. Bureau of Investigation, Terrorist Screening Center, www.fbi.gov/about-us/ten-years-after-the-fbi-since-911/just-the-facts-1/terrorist-screening-center.
4
See Ibrahim, supra note 1, at 989.
5
Dept of State, Consular Lookout and Support System (CLASS) Privacy Impact Assessment, available at
http://foia.state.gov/_docs/PIA/96128.pdf.
6
GOVT ACCOUNTABILITY OFFICE, GAO-14-62, BORDER SECURITY: DHSS EFFORTS TO MODERNIZE KEY ENFORCEMENT SYSTEMS
COULD BE STRENGTHENED (Dec. 2013) at 3.
7
GOVT ACCOUNTABILITY OFFICE, GAO-08-110, TERRORIST WATCH LIST SCREENING: OPPORTUNITIES EXIST TO ENHANCE
MANAGEMENT OVERSIGHT, REDUCE VULNERABILITIES IN AGENCY SCREENING PROCESSES, AND EXPAND THE USE OF THE LIST (Oct.
2007) at 15 n.21.
8
DEPT OF HOMELAND SEC. OFFICE OF THE INSPECTOR GEN., OIG-09-64, ROLE OF THE NO FLY AND SELECTEE LISTS IN SECURING
COMMERCIAL AVIATION (July 2009) at 16.
9
See Latif v. Holder, --- F. Supp. 2d ---, 2013 WL 4592515 at *9 (D. Or. 2013).
10
Natl Counterterrorism Center, Fact Sheet: Terrorist Identities Datamart Environment (TIDE), http://www.nctc.
gov/docs/Tide_Fact_Sheet.pdf. This number is by no means definitive. The TSCs website indicates that as of
September 2011, there were approximately 420,000 people on the TSDB/Terrorist Watchlist. See Fed. Bureau of
Investigation, supra note 3.
11
See Ibrahim, supra note 1, at 989.
12
Natl Counterterrorism Center, supra note 10 (stating that less than one percentor approximately 8,750
individualsof the individuals in TIDE were U.S. persons).
13
See Anya Bernstein, The Hidden Costs of Terrorist Watch Lists, 61 BUFF. L. REV. 461, 461 (2013).
14
U.S. No-Fly List Doubles in One Year, ASSOCIATED PRESS (Feb. 2, 2012).
15
See DEPT OF JUSTICE OFFICE OF THE INSPECTOR GEN., AUDIT REPORT 08-16, AUDIT OF THE U.S. DEPARTMENT OF JUSTICE
TERRORIST WATCHLIST NOMINATION PROCESSES (Mar. 2008) at 12.
16
DEPT OF HOMELAND SEC., supra note 8, at 7.
17
Aff. of Christopher Piehota, Mohamed v. Holder, Case No. 1:11-cv-0050, Dkt. No. 22-1 at 6 n.5 (E.D. Va. June 3,
2011).
18
GOVT ACCOUNTABILITY OFFICE, supra note 7, at 18.
19
Mohamed v. Holder, et al., Case No. 1:11-cv-50, Dkt. No. 70 at *4 (E.D. Va. Jan. 22, 2014).
20
GOVT ACCOUNTABILITY OFFICE, supra note 7, at 2 n.1.
21
Neither the TSC nor the National Counterterrorism Center (NCTC), which consolidates terrorism-related
intelligence, is positioned to assess the credibility of the intelligence underlying nominations to watchlists. The
GAO has reported that both NCTC and the TSC generally treat an agencys designation of a watchlist nominee as
presumptively valid. See GOVT ACCOUNTABILITY OFFICE, supra note 7, at 20, 22. In fact, as of 2007, the TSC accepted
99 percent of the nominations it received. Id. at 22.
22
DEPT OF JUSTICE OFFICE OF THE INSPECTOR GEN., supra note 15, at 10.
23
DEPT OF JUSTICE OFFICE OF THE INSPECTOR GEN., AUDIT REPORT 09-25, THE FEDERAL BUREAU OF INVESTIGATIONS TERRORIST
WATCHLIST NOMINATION PRACTICES (May 2009) at vi.
24
DEPT OF JUSTICE OFFICE OF THE INSPECTOR GEN., AUDIT REPORT 07-41, FOLLOW-UP AUDIT OF THE TERRORIST SCREENING CENTER
(Sept. 2007) at xix.
2

10

25

Ibrahim v. Dept of Homeland Security, Case No. C06-00545 WHA, Dkt. No. 701-1 at 26 (Feb. 6, 2014).
See Latif, supra note 9, at *9 (The realistic implications of being on the No Fly List are potentially far-reaching.).
27
Mohamed, supra note 19, at *7. Widespread use of watchlists also exacts society-wide costs that are more
difficult to quantify. See, e.g., Peter M. Shane, The Bureaucratic Due Process of Government Watch Lists, 75 GEO.
WASH. L. REV. 804, 807-08 (2007) (To the extent that watch lists impede travel or immigration by noncitizens who
present no actual threat to the United States, they can exact substantial cultural, political, and economic costs, in
both the short and the long term.).
28
See ACLU OF S. CAL., MUSLIMS NEED NOT APPLY: HOW USCIS SECRETLY MANDATES THE DISCRIMINATORY DELAY AND DENIAL OF
CITIZENSHIP AND IMMIGRATION BENEFITS TO ASPIRING AMERICANS (Aug. 2013), available at http://www.aclusocal.org/
CARRP/.
29
Fed. Bureau of Investigation, Terrorist Screening Ctr., Partnership for Success! (undated) at notes to slide 10,
available at iaclea.org/ visitors/events/conference/TSCpresentation-Condensed.pptx
30
See Dept of Justice, The Attorney Generals Guidelines for Domestic FBI Operations, available at
http://www.justice.gov/ag/readingroom/guidelines.pdf (a preliminary investigation, which involves invasive
techniques, including surveillance, requires only information or an allegation of wrongdoing).
31
See generally CTR. FOR HUMAN RIGHTS AND GLOBAL JUSTICE AND ASIAN AM. LEGAL DEF. AND EDUC. FUND, UNDER THE RADAR:
MUSLIMS DEPORTED, DETAINED, AND DENIED ON UNSUBSTANTIATED TERRORISM ALLEGATIONS (2011), available at
http://aaldef.org/UndertheRadar.pdf; see also Petra Bartosiewicz, Deploying Informants, the FBI Stings Muslims,
THE NATION (June 13, 2012) (recounting pretextual prosecution of a subject of FBI interest for possession of a
firearm at a shooting range, and infliction of immigration-related penalties for refusals to serve as informants).
32
See Fikre v. Fed. Bureau of Investigation, et al., Case No. 3:13-cv-00899 (D. Or. 2013) (plaintiff alleges he was
detained and tortured in the United Arab Emirates at the request of U.S. authorities after he declined to serve as
an informant); Mohamed v. Holder, Case No. 1:11-cv-0050, Dkt. No. 1 (E.D. Va. Jan. 18, 2011) (plaintiff alleges he
was detained and tortured in Kuwait with the knowledge and complicity of FBI officers).
33
See id.; Third Am. Compl., Latif v. Holder, Case No. 3:10-cv-00750, Dkt. No. 83 (D. Or. Jan. 11, 2013); Am. Civil
Liberties Union, The No-Fly List: Where the FBI Goes Fishing for Informants, https://www.aclu.org/blog/nationalsecurity/no-fly-list-where-fbi-goes-fishing-informants.
26

11

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 1 of 65

Page ID#: 3159

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AYMAN LATIF, MOHAMED SHEIKH ABDIRAHM

KARIYE, RAYMOND EARL KNAEBLE IV,
STEVEN WILLIAM WASHBURN, NAGIB ALI
GHALEB, ABDULLATIF MUTHANNA, FAISAL
NABIN KASHEM, ELIAS MUSTAFA MOHAMED,
IBRAHEIM Y. MASHAL, SALAH ALI AHMED,
AMIR MESHAL, STEPHEN DURGA PERSAUD,
and MASHAAL RANA,
Plaintiffs,

v.
ERIC H. HOLDER, JR., in his official
capacity as Attorney General of the
United States; JAMES B. COMEY, in his
official capacity as Director of the
Federal Bureau of Investigation; and
CHRISTOPHER M. PIEHOTA, in his
official capacity as Director of the
FBI Terrorist Screening Center,
Defendants.

1 - OPINION AND ORDER

3:10-cv-00750-BR
OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

STEVEN M. WILKER
Tonkon Torp LLP
888 s.w. 5'" Avenue, Ste. 1600
Portland, OR 97204
(503) 802-2040
HINA SHAMSI
American Civil Liberties Union
125 Broad Street, 18' Floor
New York, NY 10004
(212) 549-2500
KEVIN DIAZ
American Civil Liberties Union
P.O. Box 40585
Portland, OR 97240
(503) 227-6928
ALEXANDRA F. SMITH
LAURA SCHAUER IVES
ACLU Foundation of New Mexico
P.O. Box 566
Albuquerque, NM 87103
(505) 266-5915
AHILAN ARULANANTHAM
JENNIFER PASQUARELLA
ACLU Foundation of Southern California
1313 West st Street
Los Angeles, CA 90017
(213) 977-5211
ALAN L. SCHLOSSER
JULIA HARUMI MASS
ACLU of Northern California
39 Drumm Street
San Francisco, CA 94111
(415) 621-2493
CHRISTOPHER M. EGLESON
JUSTIN H. BELL
MITCHELL P. HURLEY
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, NY 10036
(212) 872-1039

2 - OPINION AND ORDER

Page 2 of 65

Page ID#: 3160

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 3 of 65

Page ID#: 3161

REEM SALAHI
Salahi Law
429 Santa Monica Boulevard, Ste. 550
Santa Monica, CA 90401
(510) 225-8880
Attorneys for Plaintiffs
DEVIN N. ROBINSON
Stewart Shadduck & Robinson LLC
6110 N. Lombard Street, Ste. B
Portland, OR 97203
(503) 228-7020
RITA M. SIEMION
637 Kenyon Street NW
Washington, DC 20010
(703) 655-1467
Attorneys for Amicus Curiae The Constitution Project
ERIC H. HOLDER, JR.
United States Attorney General
AMY ELIZABETH POWELL
United States Department of Justice
Civil Division
20 Massachusetts Avenue N.W., Suite 5377
Washington, DC 20010
(202) 514-9836
S . AMANDA MARSHALL
United States Attorney
JAMES E. COX, JR.
Assistant United States Attorney
District of Oregon
1000 S.W. Third Avenue, Ste. 600
Portland, OR 97204
(503) 727-1026

Attorneys for Defendants

BROWN, Judge.
This matter comes before the Court on Defendants'

~lotion

(#85) for Partial Summary Judgment and Plaintiffs' Cross-Motion

3 - OPINION AND ORDER

Case 3:10-cv-00750-BR

(#91)

Document 136

Filed 06/24/14

for Partial Summary Judgment.

Page 4 of 65

Page ID#: 3162

The parties each seek

summary judgment on Plaintiffs' Claim One of the Third Amended

Complaint (#83)

(that Defendants violated Plaintiffs' right to

procedural due process under the Fifth Amendment to the United

States Constitution) and Claim Three (that Defendants violated
Plaintiffs' rights under the Administrative Procedure Act (APA),
5 U.S.C.

706).

In their claims Plaintiffs specifically

challenge the adequacy of Defendants' redress procedures for

persons on the No-Fly List (sometimes referred to as "the Listn).
In addition to the parties' briefs, the record includes an Amicus
Curiae Brief (#99) in Support of Plaintiffs' Cross-Motion filed
by The Constitution Project.
On June 21, 2013, after the Court first heard oral argument
on the parties' Motions, the Court took these issues under
advisement.

On August 28, 2013, the Court issued an Opinion and

Order (#110) granting in part Plaintiffs' Cross-Motion, denying

in part Defendants' Motion, and deferring ruling on the remaining
portions of the pending Motions to permit additional development
of the factual record and supplemental briefing.

In that Opinion

and Order the Court concluded Plaintiffs established the first

factor under Mathews v. Eldridge,

424 U.S. 319, 335 (1976),

because Plaintiffs had protected liberty interests in their

rights to travel internationally by air and rights to be free
from false governmental stigmatization that were affected by

4 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

their inclusion on the No-Fly List.

Page 5 of 65

Page ID#: 3163

The Court, however, found

the record was not sufficiently developed to balance properly

Plaintiffs' protected liberty interests on the one hand against
the procedural protections on which Defendants rely, the utility
of additional safeguards, and the government interests at stake
in the remainder of the Mathews analysis.

See id.

After the parties filed a Third Joint Statement of

Stipulated Facts

(#114) and completed their respective

supplemental briefing, the Court heard oral argument on March 17,

2014, and again took the Motions under advisement.
For the reasons that follow,' the Court GRANTS Plaintiffs'
Cross-Motion ( #91)

and DENIES Defendants' Motion ( #85) .

In order to complete the procedural due-process analysis

in this Opinion and Order that the Court began in its August 28,
2013, Opinion and Order (#110), the Court repeats and summarizes
herein many of the facts and analyses from the prior Opinion and
Order to ensure a clear and comprehensive record.
2

Plaintiffs also seek a declaratory judgment that

Defendants' policies, practices, and customs violate the Fifth
Amendment of the United States Constitution and the APA and also
seek an injunction requiring Defendants (1) to remedy such
violations, including removal of Plaintiffs' names from any watch
list or database that prevents them from flying; (2) to provide
Plaintiffs with notice of the reasons and bases for their
inclusion on the No-Fly List; and (3) to provide Plaintiffs with
the opportunity to contest inclusion on the List. Although the
Court concludes Plaintiffs are entitled to summary judgment on
the bases described herein, the issues concerning the substance
of any declaratory judgment and/or injunction remain for further
development
5 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 6 of 65

Page ID#: 3164

PLAINTIFFS' CLAIMS
Plaintiffs are citizens and lawful permanent residents of
the United States (including four veterans of the United States
Armed Forces) who were not allowed to board flights to or from
the United States or over United States airspace.

Plaintiffs

believe they were denied boarding because they are on the No-Fly
List, a government terrorist watch list of individuals who are
prohibited from boarding commercial flights that will pass
through or over United States airspace.

Federal and/or local

government officials told some Plaintiffs that they are on the

No-Fly List.
Each Plaintiff submitted applications for redress through
the Department of Homeland Security Traveler Redress Inquiry
Program (DHS TRIP).

Despite Plaintiffs' requests to officials

and agencies for explanations as to why they were not permitted

to board flights,

explanations have not been provided and

Plaintiffs do not know whether they will be permitted to fly in

the future.
Plaintiffs allege in their Third Amended Complaint (#83),
Claim One, that Defendants have violated Plaintiffs'

Fifth

Amendment right to procedural due process because Defendants have

not given Plaintiffs any post-deprivation notice nor any
meaningful opportunity to contest their continued inclusion on
the No-Fly List.

In Claim Three Plaintiffs assert Defendants'

6 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 7 of 65

Page ID#: 3165

actions have been arbitrary and capricious and constitute

"unlawful agency action" in violation of the APA.

PROCEDURAL BACKGROUND
Plaintiffs filed this action on June 30, 2010.

On May 3,

2011, this Court issued an Order (#69) granting Defendants'

Motion (#43) to Dismiss for failure to join the Transportation
Security Administration (TSA) as an indispensable party and for
lack of subject-matter jurisdiction on the ground that the relief
Plaintiffs sought could only come from the appellate court in
accordance with 49 U.S.C. 46110(a).
Court's Order to the Ninth Circuit.

Plaintiffs appealed the

See Latif v. Holder,

686

F. 3d 1122 (9ili Cir. 2012).

On July 26, 2012, the Ninth Circuit issued an opinion in
which it reversed this Court's decision and held "the district
court

. has original jurisdiction over Plaintiffs' claim that

the government failed to afford them an adequate opportunity to

contest their apparent inclusion on the List."

Id. at 1130.

The

Court also held "[49 U.S.C.] 46110 presents no barrier to

adding TSA as an indispensable party."

Id.

The Ninth Circuit

issued its mandate on November 19, 2012, remanding the matter to

this Court.
As noted, the parties subsequently filed Motions for Partial
Summary Judgment.

7 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 8 of 65

Page ID#: 3166

FACTUAL BACKGROUND
The following facts are undisputed unless otherwise noted:

I.

The No-Fly List

The Federal Bureau of Investigation (FBI), which administers

the Terrorist Screening Center (TSC), develops and maintains the

federal government's consolidated Terrorist Screening Database
(TSDB or sometimes referred to as "the watch list") .

The No-Fly

List is a subset of the TSDB.

TSC provides the No-Fly List to TSA, a component of the
Department of Homeland Security (DHS), for use in pre-screening
airline passengers.

TSC receives nominations for inclusion in

the TSDB and generally accepts those nominations on a showing of

"reasonable suspicion" that the individuals are known or
suspected terrorists based on the totality of the information.
TSC defines its reasonable-suspicion standard as requiring
"articulable facts which, taken together with rational
inferences, reasonably warrant the determination that an
individual 'is known or suspected to be, or has been engaged in
conduct constituting, in preparation for,

in aid of or related

to, terrorism or terrorist activities.'"

Joint Statement of

Stipulated Facts (#84) at 4.

The government also has its own "Watchlisting Guidance" for
internal law-enforcement and intelligence use, and the No-Fly

8 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 9 of 65

Page ID#: 3167

List has its own minimum substantive derogatory criteria.

The

government does not release these documents.'

II.

DHS TRIP Redress Process

DHS TRIP is the mechanism available for individuals to seek

redress for any travel-related screening issues experienced at

airports or while crossing United States borders; i.e., denial of
or delayed airline boarding, denial of or delayed entry into or
exit from the United States, or continuous referral for
additional (secondary) screening.

A.

Administrative Review

Travelers who have faced such difficulties may submit a

Traveler Inquiry Form to DHS TRIP online, by email, or by regular
mail.

The form prompts travelers to describe their complaint, to

produce documentation relating to the issue, and to provide

identification and their contact information.

If the traveler is

an exact or near match to an identity within the TSDB, DHS TRIP

deems the complaint to be TSDB-related and forwards the
traveler's complaint to TSC Redress for further review.
On receipt of the complaint, TSC Redress reviews the
available information, including the information and
3

The Court has reviewed the minimum substantive derogatory

criteria for the No-Fly List and a summary of the guidelines
contained within the Watchlisting Guidance submitted to the Court
by Defendants ex parte and in camera.
Because this information
constitutes Sensitive Security Information, the Court does not
refer to its substance in this Opinion and Order.

9 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 10 of 65

Page ID#: 3168

documentation provided by the traveler, and determines

(1) whether the traveler is an exact match to an identity in the
TSDB and (2) whether the traveler should continue to be in the
TSDB if the traveler is an exact match.

When making this

determination, TSC coordinates with the agency that originally

nominated the individual to be included in the TSDB.

If the

traveler has been misidentified as someone who is an exact match

to an identity in the TSDB, TSC Redress informs DHS of the
misidentification.

DHS, in conjunction with any other relevant

agency, then addresses the misidentification by correcting

information in the traveler's records or taking other appropriate
action.
When DHS and/or TSC finish their review,

DHS TRIP sends a

determination letter advising the traveler that DHS TRIP has

completed its review.

A DHS TRIP determination letter neither

confirms nor denies that the complainant is in the TSDB or on the

No-Fly List and does not provide any further details about why
the complainant may or may not be in the TSDB or on the No-Fly
List.

In some cases a DHS TRIP determination letter advises the

recipient that he or she can pursue an administrative appeal of

the determination letter with TSA or can seek judicial review in

10 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 11 of 65

Page ID#: 3169

a United States court of appeals pursuant to 49 U.S.C. 46110.

Determination letters, however, do not provide assurances

about the complainant's ability to undertake future travel.
fact,

In

DHS does not tell a complainant whether he or she is in the

TSDB or a subset of the TSDB or give any explanation for

inclusion on such a list at any point in the available
administrative process.

Thus, the complainant does not have an

opportunity to contest or knowingly to offer corrections to the

record on which any such determination may be based.

B.

Judicial Review

When a final determination letter indicates the complainant

may seek judicial review of the decisions represented in the
letter, it does not advise whether the complainant is on the NoFly List or provide the legal or factual basis for such
inclusion.

If the complainant submits a petition for review to

the appropriate court, the government furnishes the court (but

not the petitioner} with the administrative record.
4

49 U.S.C. 46ll0(a} provides in part:

[A] person
disclosing a substantial interest in an order issued by the
Secretary of Transportation .
. in whole or in part under this
part .
. may apply for review of the order by filing a petition
for review in the United States Court of Appeals for the District
of Columbia Circuit or in the court of appeals of the United
States for the ci~cuit in which the person resides or has its
principal place of business." When the relief sought from
judicial review of a DHS TRIP inquiry requires review and
modification of a TSC order, original jurisdiction lies in the
district court.
Arjmand v. United States Dep't of Homeland Sec.,
745 F. 3d 1300, 1302-03 (9th Cir. 2014}.

11 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 12 of 65

Page ID#: 3170

If the administrative DHS TRIP review of a petitioner's

redress file resulted in a final determination that the
petitioner is not on the No-Fly List, the administrative record
will inform the court of that fact.

If, on the other hand, the

administrative DHS TRIP review of a petitioner's redress file

resulted in a final determination that the petitioner is and
should remain on the No-Fly List, the administrative record will
include the information that the government relied on to maintain
that listing.

The government may have obtained this information

from human sources, foreign governments, and/or "signals

intelligence.H

The government may provide to the court ex parte

and in camera information that is part of the administrative

record and that the government has determined is classified,
Sensitive Security Information, law-enforcement investigative
information, and/or information otherwise privileged or protected
from disclosure by statute or regulation.
The administrative record also includes any information that
the petitioner submitted to the government as part of his or her
DHS TRIP request, and the petitioner has access to that portion
of the record.

As noted, at no point during the judicial-review

process does the government provide the petitioner with

confirmation as to whether the petitioner is on the No-Fly List,
set out the reasons for including petitioner's name on the List,

12 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 13 of 65

Page ID#: 3171

or identify any information or evidence relied on to maintain the

petitioner's name on the List.
For a petitioner who is on the No-Fly List, the court will
review the administrative record submitted by the government in
order to determine whether the government reasonably determined
the petitioner satisfied ~he minimum substantive derogatory
criteria for inclusion on the List.

If after review the court

determines the administrative record supports the petitioner's

inclusion on the No-Fly List, it will deny the petition for
review.

If the court determines the administrative record

contains insufficient evidence to satisfy the substantive

derogatory criteria, however, the government takes the position
that the court may remand the matter to the government for
appropriate action.
III. Plaintiffs' Pertinent History
Solely for purposes of the parties' Motions (#85, #91)
presently before the Court, Defendants do not contest the
following facts as asserted by Plaintiffs:
5

As a matter of policy, the United States government does

not confirm or deny whether an individual is on the No-Fly List
nor does it provide any other details as to that issue.
Accordingly, Defendants have chosen not to refute Plaintiffs'
allegations that they are on the No-Fly List for purposes of
these Motions only.
The Court, therefore, assumes for purposes
of these Motions only that Plaintiffs' assertions regarding their
inclusion on the No-Fly List are true.

13 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 14 of 65

Page ID#: 3172

Plaintiffs are thirteen United States citizens who were

denied boarding on flights over United States airspace after
January 1, 2009, and who believe they are on the United States
government's No-Fly List.

Airline representatives, FBI agents,

or other government officials told some Plaintiffs that they are

on the No-Fly List.
Each Plaintiff filed DHS TRIP complaints after being denied
boarding and each received a determination letter that does not
confirm or deny any Plaintiff's name is on any terrorist watch
list nor provide a reason for any Plaintiff to be included iti the
TSDB or on the No-Fly List.
Many of these Plaintiffs cannot travel overseas by any mode
other than air because such journeys by boat or by land would be
cost-prohibitive, would be time-consuming to a degree that
Plaintiffs could not take the necessary time off from work, or
would put Plaintiffs at risk of interrogation and detention by
foreign authorities.

In addition, some Plaintiffs are not

physically well enough to endure such infeasible modes of travel.

While Plaintiffs' circumstances are similar in many ways,
each of their experiences and difficulties relating to and
arising from their alleged inclusion on the No-Fly List is unique
as set forth in their Declarations filed in support of their
Motion and summarized briefly below.

14 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Avman Latif:

Document 136

Filed 06/24/14

Page 15 of 65

Page ID#: 3173

Latif is a United States Marine Corps veteran

and lives in Stone Mountain, Georgia, with his wife and children.
Between November 2008 and April 2010 Latif and his family were
living in Egypt.

When Latif and his family attempted to return

to the United States in April 2010, Latif was not allowed to

board the first leg of their flight from Cairo to Madrid.

One

month later Latif was questioned by FBI agents and told he was on
the No-Fly List.

Because he was unable to board a flight to the

United States, Latif's United States veteran disability benefits

were reduced from $899.00 per month to zero as the result of
being unable to attend the scheduled evaluations required to keep
his benefits.

In August 2010 Latif returned home after the

United States government granted him a "one-time waiver" to fly

to the United States.

Because the waiver was for "one time,"

Latif cannot fly again, and therefore, he is unable to travel

from the United States to Egypt to resume studies or to Saudi
Arabia to perform a hajj, a religious pilgrimage and Islamic
obligation.
Mohamed Sheikh Abdirahm Kariye:

Oregon, with his wife and children.

Kariye lives in Portland,

In March 2010 Kariye was not

allowed to board a flight from Portland to Amsterdam, was

surrounded in public by government officials at the airport, and
was told by an airline employee that he was on a government watch
list.

Because Kariye is prohibited from boarding flights out of

15 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 16 of 65

Page ID#: 3174

the United States, he could not fly to visit his daughter who was
studying in Dubai and cannot travel to Saudi Arabia to accompany
his mother on the hajj pilgrimage.
Raymond Earl Knaeble IV:

Knaeble is a United States Army

veteran and lives in Chicago, Illinois.

working in Kuwait.

In 2006 Knaeble was

In March 2010 Knaeble flew from Kuwait to

Bogota, Colombia, to marry his wife, a Colombian citizen, and to

spend time with her family.

On March 14, 2010, Knaeble was not

allowed to board his flight from Bogota to Miami.

Knaeble was

subsequently questioned numerous times by FBI agents in Colombia.

Because Knaeble was unable to fly home for a required medical
examination, his employer rescinded its job offer for a position
in Qatar.

Knaeble attempted to return to the United States

through Mexico where he was detained for over 15 hours,

questio~ed,

and forced to return to Bogota.

Knaeble eventually

returned to the United States in August 2010 by traveling for 12

days from Santa Marta, Colombia, to Panama City and then to
Mexicali, California.

United States and foreign authorities

detained, interrogated, and searched Knaeble on numerous

occasions during that journey.
Faisal Nabin Kashem:

In January 2010 Kashem traveled from

the United States to Saudi Arabia to attend a two-year Arabic

language-certification program and eventually to enroll in a
four-year Islamic studies program.

16 - OPINION AND ORDER

In June 2010 Kashem attempted

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 17 of 65

Page ID#: 3175

to fly from Jeddah, Saudi Arabia, to New York for summer

vacation; was denied boarding; and was told by an airline
employee that he was on the No-Fly List.

FBI agents later

questioned Kashem and told him that he was on the No-Fly List.
After Kashem joined this lawsuit, the United States government
offered him a "one-time waivern to return to the United States,
which he has so far declined because United States officials have
refused to confirm that he will be able to return to Saudi Arabia
to complete his studies.

Elias Mustafa Mohamed:

In January 2010 Mohamed traveled

from the United States to Saudi Arabia to attend a two-year

Arabic language-certification program.

In June 2010 Mohamed

attempted to fly from Jeddah, Saudi Arabia, to his home in

Seattle, Washington, via Washington, D.C., but he was not allowed
to board his flight and was told by an airline employee that he
was on the No-Fly List.

FBI agents later questioned Mohamed and

told him that he was on the No-Fly List.

After joining this

lawsuit, the United States government offered Mohamed a "one-timewaivern to return to the United States, which he has so far
declined because United States officials have refused to confirm
that he will be able to return to Saudi Arabia to complete his
studies.

Steven William Washburn:

Washburn is a United States Air

Force veteran and lives in New Mexico.

17 - OPINION AND ORDER

In February 2010 Washburn

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 18 of 65

Page ID#: 3176

was not allowed to board a flight from Ireland to Boston.

He

later attempted to fly from Dublin to London to Mexico City.

Although he was allowed to board the flight from Dublin to
London, on the London to Mexico City flight the aircraft turned
around

3~

hours after takeoff and returned to London where

Washburn was detained.

On numerous later occasions FBI agents

interrogated Washburn.

In May 2010 Washburn returned to New

Mexico by taking a series of five flights that eventually landed

in Juarez, Mexico, where he crossed the United States border on
foot.

During this trip Mexican officials detained and

interrogated Washburn.

In June 2012 an FBI agent told Washburn

that the agent would help remove Washburn's name from the No-Fly
List if he agreed to speak to the FBI.

Since May 2010 Washburn

has been separated from his wife who is in Ireland because she
has been unable to obtain a visa to come to the United States and
Washburn is unable to fly to Ireland.
Nagib Ali Ghaleb:

Ghaleb lives in Oakland, California.

In

February 2010 Ghaleb attempted to travel from Yemen where his

wife and children were living to San Francisco via Frankfurt.
Ghaleb was not allowed to board his flight from Frankfurt to San
Francisco.

FBI agents later interrogated Ghaleb and offered to

arrange to fly him back to the United States if he agreed to tell

them who the "bad guys" were in Yemen and San Francisco and to
provide names of people from his mosque and community.

18 - OPINION AND ORDER

The

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 19 of 65

agents threatened to have Ghaleb imprisoned.

Page ID#: 3177

In May 2010 Gha1eb

again attempted to return to the United States.

He was able to

fly from Sana'a, Yemen, to Dubai, but he was not allowed to board
his flight from Dubai to San Francisco.

In July 2010 Ghaleb

accepted a "one-time waiver" offered by the United States

government to return to the United States.

Because Ghaleb cannot

fly, he cannot go to Yemen to be with his ill mother or to see

his brothers or sisters.
Abdullatif Muthanna:

Muthanna lives in Rochester, New York.

In June 2009 Muthanna left Rochester to visit his wife and

children who live in Yemen.

In May 2010 Muthanna was to return

to the United States on a flight from Aden, Yemen, to New York

via Jeddah, Saudi Arabia, but he was not allowed to board his
flight from Jeddah to New York.

In September 2010 Muthanna

accepted a "one-time waiver" offered by the United States

government to return home.

In June 2012 Muthanna wanted to be

with his family and attempted to fly to Yemen, but he was not
allowed to board a flight departing from New York.

In August

2012 Muthanna attempted a journey of thirty-six days over land

and by ship from Rochester to Yemen, but a ship captain refused
to let Muthanna sail on a cargo freighter departing from
Philadelphia on the recommendation of United States Customs and
Border Protection.

Muthanna was not allowed to board flights on

19 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 20 of 65

Page ID#: 3178

four separate occasions before he finally boarded a flight from

New York to Dubai in February 2013.
Mashaal Rana:

Rana moved to Pakistan to pursue a master's

degree in Islamic studies in 2009.

In February 2010 Rana was not

allowed to board a flight from Lahore, Pakistan, to New York.

An

FBI agent later interrogated Rana's brother, who lives in the

United States.

In October 2012 Rana was six-months pregnant and

again attempted to return to New York to receive needed medical

care and to deliver her child.

Rana's brother worked with United

States officials to clear Rana to fly.

Rana received such

clearance, but five hours before her flight was to depart she
received notice that she would not be allowed to board.

Rana was

not able to find a safe alternative to travel to the United

States before the birth of her child.

In November 2010 the

United States government offered Rana a "one-time waiver, which

she has not used because she fears she would not be able to
return to Pakistan to be with her husband.
Ibraheim Y. Mashal:

veteran.

Mashal is a United States Marine Corps

Mashal was not allowed to board a flight from Chicago,

Illinois, to Spokane, Washington, and was told by an airline

representative that he was on the No-Fly List.

FBI agents later

questioned Mashal and told him that his name would be removed
from the No-Fly List and he would receive compensation if he
helped the FBI by serving as an informant.

20 - OPINION AND ORDER

When Mashal asked to

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 21 of 65

Page ID#: 3179

have his attorney present before answering the FBI's questions,

the agents ended the meeting.
business.

Mashal owns a dog-training

Because he is unable to fly, he has lost clients; had

to turn down business; and has been prevented from attending his
sister-in-law's graduation in Hawaii, the wedding of a close
friend, the funeral of a close friend, and fundraising events for
the nonprofit organization that he founded.
Salah Ali Ahmed:

Ahmed lives in Norcross, Georgia.

In July

2010 Ahmed attempted to travel from Atlanta to Yemen via

Frankfurt and was not allowed to board the flight in Atlanta.
FBI agents later questioned Ahmed.

Because he is unable to fly,

Ahmed was unable to travel to Yemen in 2012 when his brother died
and is unable to travel to Yemen to visit his extended family and
to manage property that he owns in Yemen.
Amir Meshal:

Meshal lives in Minnesota.

In June 2009

Meshal was not allowed to board a flight from Irvine, California,

to Newark, New Jersey.

FBI agents told Meshal that he was on a

government list that prohibits him from flying.

In October 2010

FBI agents offered Meshal the opportunity to serve as a

government informant in exchange for assistance in removing his
name from the No-Fly List.

Because Meshal is unable to fly,

he.

cannot visit his mother and extended family in Egypt.

Stephen Durga Persaud:

Persaud lives in Irvine, California.

In May 2010 Persaud was not allowed to board a flight from

21 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

St. Thomas to Miami.

Filed 06/24/14

Page 22 of 65

Page ID#: 3180

An FBI agent told Persaud that he was on

the No-Fly List, interrogated him, and told him the only way to
get off the No-Fly List was to "talk to us."

In June 2010

Persaud took a five-day boat trip from St. Thomas to Miami and a
four-day train ride from Miami to Los Angeles so he could be home
for the birth of his second child.

Because he cannot fly,

Persaud cannot travel to Saudi Arabia to perform the hajj

pilgrimage.

STANDARDS

Summary judgment is appropriate when "there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law."

Washington fvlut.

States, 636 F.3d 1207, 1216 (9th Cir. 2011).

Civ. P. 56(a).

Ins. v. United

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F. 3d 1142, 1146 (9to Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.

I d.

''This burden is not a light one.

The non-moving party must do more than show there is some

'metaphysical doubt' as to the material facts at issue."

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9'" Cir. 2010)
(citation omitted).
22 - OPINION AND ORDER

In re

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 23 of 65

Page ID#: 3181

A dispute as to a material fact is genuine ''if the evidence

is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,

Inc.,

477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.

v. Verity, Inc.,

606 F.3d 584, 587

(9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be dra.vn

from the evidence as to material issues."
381 F. 3d 948, 957

Easter v. Am. W. Fin.,

(9th Cir. 2004) (citation omitted).

A "mere

disagreement or bald assertion" that a genuine dispute as to a

material fact exists "will not preclude the grant of summary
judgment."

Deering v. Lassen Cmty. Coll. Dist., No. 2: 07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2

(E.D. Cal., Jan. 20, 2011)

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted)
The substantive law governing a claim or a defense
determines whether a fact is material.

Prod., Inc.,

454 F.3d 975, 987

Miller v. Glenn Miller

(9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment.
23 - OPINION AND ORDER

Id.

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 24 of 65

Page ID#: 3182

DISCUSSION
As noted, Plaintiffs allege Defendants have violated
Plaintiffs' Fifth Amendment rights to procedural due process
because Defendants have not provided Plaintiffs with any postdeprivation notice nor any meaningful opportunity to contest
their continued inclusion on the No-Fly List.

Plaintiffs also

allege Defendants violated Plaintiffs' rights under the APA.

I.

Claim One:

Procedural Due-Process

"Procedural due process imposes constraints on governmental

decisions which deprive individuals of 'liberty' or 'property'
interests within the meaning of the Due Process Clause of the
Fifth or Fourteenth Amendment."
also MacLean v.

Mathews,

Dep't of Homeland Sec.,

424 U.S. at 332.

See

543 F.3d 1145, 1151 (9'h

"The fundamental requirement of due process is the

Cir. 2008).

opportunity to be heard 'at a meaningful time and in a meaningful

manner.'"

Mathews,

424 U.S. at 333 (quoting Armstrong v. Manzo,

380 u.s. 545, 552

(1965)).

727 F. 3d 873, 881

(9th Cir. 2013).

See also \Iilla-Anguiano v.

Holder,

Due process, however, "'is

flexible and calls for such procedural protections as the

particular situation demands.'"
(quoting Morrissey v. Brewer,
also Wynar v.

Douglas Cnty.

(9th Cir. 2013).

24 - OPINION AND ORDER

Mathews,

424 U.S. at 334

408 U.S. 471, 481 (1972)).

School Dist.,

See

728 F.3d 1062, 1073

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 25 of 65

Page ID#: 3183

The court must weigh three factors when evaluating the

sufficiency of procedural protections:

(1) "the private interest

that will be affected by the official actionn;

(2) "the risk of

an erroneous deprivation of such interest through the procedures

used, and the probative value, if any, of additional or
substitute procedural safeguardsn; and (3) "the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.n

Mathews,

424 U.S. at 335.

See also Vasquez v. Rackauckas, 734 F.3d 1025, 1044 (9th Cir.
2013) .

A.

First Factor:

Private Interest

Plaintiffs contend the first factor under Mathews weighs in

their favor because Defendants' inclusion of Plaintiffs on the
No-Fly List has deprived Plaintiffs of their constitutionallyprotected liberty interests in travel and reputation.

1.

Right to Travel

"The right to travel is a part of the 'liberty' of

which the citizen cannot be deprived without due process of law
under the Fifth Amendment.n
(1958).

See also Eunique v.

Cir. 2002).

Kent v. Dulles, 357 U.S. 116, 125

Powell, 302 F.3d 971,

976-77 (9th

"[T]he [Supreme] Court has consistently treated the

right to international travel as a liberty interest that is

protected by the Due Process Clause of the Fifth Amendment.n
25 - OPINION AND ORDER

Case 3:10-cv-00750-BR

DeNieva v. Reyes,
added).

Document 136

Filed 06/24/14

Page 26 of 65

Page ID#: 3184

966 F.2d 480, 485 (9th Cir. 1992) (emphasis

See also Eunique, 302 F.3d at 973.

Relying primarily on Gilmore v. Gonzales,

(9th Cir. 2006), and Green v. Transp.

435 F.3d 1125

Sec. Admin., 351 F. Supp.

2d 1119 (W.D. Wash. 2005), Defendants argue there is not a

constitutional right to travel by airplane or by the most
convenient form of travel.

Defendants, therefore, contend

Plaintiffs' rights to travel are not constitutionally burdened

because the No-Fly List only prohibits travel by commercial
aviation.
As the Court found in its Opinion and Order (#110),
Gilmore and Green are distinguishable from this case for a number
of reasons.

First, those cases involve burdens on the right to

interstate as opposed to international travel.

Although there

are viable alternatives to flying for domestic travel within the

continental United States such as traveling by car or train, the
Court disagrees with Defendants' contention that international
air travel is a mere convenience in light of the realities of our
modern world.

Such an argument ignores the numerous reasons that

an individual may have for wanting or needing to travel overseas

quickly such as the birth of a child, the death of a loved one, a
business opportunity, or a religious obligation.

In Ibrahim v.

Department of Homeland Security the court rejected an argument

similar to the one that Defendants make in this case:

26 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 27 of 65

Page ID#: 3185

While the Constitution does not ordinarily

guarantee the right to travel by any particular
form of transportation, given that other forms of
travel usually remain possible, the fact remains
that for international travel, air transport in
these modern times is practically the only form of
transportation, travel by ship being prohibitively
expensive.
Decisions involving domestic air
travel, such as the Gilmore case, are not on
point.
No. C 06-00545 WHA, 2012 WL 6652362, at *7
2012) .

(N.D. Cal. Dec. 20,

Other cases Defendants cite are similarly

distinguishable.

See, e.g., Miller v. Reed, 176 F.3d 1202 (9th

Cir. 1999) (restrictions on interstate travel as it relates to the

right to drive) ; Town of Southold v. Town of E. Hampton,
38

4 7 7 F. 3d

(2d Cir. 2007) (restrictions on interstate travel as it relates

to riding ferries); Cramer v. Skinner,

931 F.2d 1020 (5th Cir.

1991) (restrictions on interstate air service to one airport).

Second, the burdens imposed by the restrictions on the
plaintiffs in Green and Gilmore are far less than the alleged
burdens in this matter.

Gilmore involved the requirement that

passengers present photo identification before boarding a

commercial flight and Green involved passengers being subjected
to enhanced security screening because they had been mistakenly
identified as being on a terrorist watch list.

Unlike the

security-screening restrictions in Green and Gilmore,

Plaintiffs'

placement on the No-Fly List operates as a complete and

indefinite ban on boarding commercial flights.

27 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 28 of 65

Page ID#: 3186

The Court also disagrees with Defendants' assertion

that all modes of transportation must be foreclosed before any
infringement of an individual's due-process right to
international travel is triggered.

In DeNieva the Ninth Circuit

found the plaintiff's protected liberty interest in her right to

international travel had been infringed in that "retention of
[her] passport infringed upon her ability to travel
internationally" because "[w]ithout her passport, she could
travel internationally only with great difficulty, i f at all."
DeNieva,

966 F.2d at 485 (emphasis added).

In other words, her

protected liberty interest in international travel had been

infringed even though she may not have been completely banned
from traveling.
As Plaintiffs' difficulties with international travel
demonstrate, placement on the No-Fly List is a significant
impediment to international travel.

It is undisputed that

inclusion on the No-Fly List completely bans listed persons from

boarding commercial flights to or from the United States or over
United States airspace.

In addition, the realistic implications

of being on the No-Fly List are far-reaching.

For example, TSC

shares watch-list information with 22 foreign governments, and

United States Customs and Border Protection makes recommendations
to ship captains as to whether a passenger poses a risk to
transportation security.

28 - OPINION AND ORD8R

Thus, having one's name on the watch

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 29 of 65

Page ID#: 3187

list can also result in interference with an individual's ability

to travel by means other than commercial airlines as evidenced by
some Plaintiffs' experiences as they attempted to travel
internationaliy or return to the United States by sea and by
land.

In addition, the ban on air travel has exposed some

Plaintiffs to extensive detention and interrogation at the hands

of foreign authorities.

With perhaps the exception of travel to

a small number of countries in North and Central America, a

prohibition on flying turns routine international travel into an
odyssey that imposes significant logistical, economic, and
physical demands on travelers.

Thus, while the nature of the

deprivation in this case may be different from the retention of

the plaintiff's passport in DeNieva, placement on the No-Fly
List, as noted, results in an individual being able to "travel
internationally only with great difficulty, if at all."

Id.

Accordingly, the Court concludes on this record that

Plaintiffs have constitutionally-protected liberty interests in
traveling internationally by air, which are significantly
affected by being placed on the No-Fly List.
The first step of the Mathews inquiry, however, does
not end 'lli th mere recognition of a liberty interest.

The Court

must also weigh the liberty interest deprived against the other
factors.

See Wilkinson v. Austin, 54 5 U.S. 209, 225 ( 2005) .

29 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 30 of 65

Page ID#: 3188

As noted, placement on the No-Fly List renders most

international travel very difficult or impossible.

One need not

look beyond the hardships suffered by Plaintiffs to understand

the significance of the deprivation of the right to travel
internationally.

Due to the major burden imposed by inclusion on

the No-Fly List, Plaintiffs have suffered significantly including

long-term separation from spouses and children; the inability to
access desired medical and prenatal care; the inability to pursue
an education of their choosing; the inability to participate in
important religious rites; loss of employment opportunities; loss
of government entitlements; the inability to visit family; and
the inability to attend important personal and family events such
as graduations, weddings, and funerals.

The Court concludes

international travel is not a mere convenience or luxury in this

modern world.

Indeed, for many international travel is a

necessary aspect of liberties sacred to members of a free

society.
Accordingly, on this record the Court concludes
Plaintiffs' inclusion on the No-Fly List constitutes a
significant deprivation of their liberty interests in
international travel.
2.

Stigma-Plus -Reputation

Plaintiffs also assert the first factor under Mathews

has been satisfied because Plaintiffs have been stigmatized "in

30 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 31 of 65

Page ID#: 3189

conjunction with their right to travel on the same terms as other

travelers."

First Am. Compl. 'l[ 141.

Under the "stigma-plus" doctrine, the Supreme Court has

recognized a constitutionally-protected interest in "a person's
good name, reputation, honor, or integrity."

Constantineau,

400 U.S.

433, 437

(1971).

Wisconsin v.

See also Miller v.

Cal., 355 F. 3d 1172, 1178-79 (9th Cir. 2004).

"To prevail on a

claim under the stigma-plus doctrine, Plaintiffs must show

(1) public disclosure of a stigmatizing statement by the
government, the accuracy of which is contested; plus (2) the
denial of some more tangible interest such as employment, or the
alteration of a right or status recognized by state law."

Green,

351 F. Supp. 2d at 1129 (emphasis added) (citing Ulrich v. City

Cnty. of San Francisco, 308 F. 3d 968,

Paul v. Davis,

424

u,s.

&

982 (9th Cir. 2002) , and

693, 701, 711 (1976)).

"'The plus must

be a deprivation of a liberty or property interest by the state

that directly affects the [Plaintiffs'] rights.'"
Supp. 2d at 1129 (quoting Miller,

Green, 351 F.

355 F. 3d at 1178).

Under the

"plus" prong, a plaintiff can show he has suffered a change of

legal status if he "legally [cannot] do something that [he]
could otherwise do."

Miller,

355 F.3d at 1179 (discussing

Constantineau, 400 U.S. 433 (1971)).

Plaintiffs contend, and Defendants do not dispute, that
placement on the No-Fly List satisfies the "stigma" prong because
31 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 32 of 65

Page ID#: 3190

it carries with it the stigma of being a suspected terrorist that

is publicly disclosed to airline employees and other travelers
near the ticket counter.

According to Defendants, however,

Plaintiffs cannot meet the "plusn prong of the test because

(1) Plaintiffs do not have a right to travel by commercial
airline and (2) there is not a "connectionn between the stigma
and the "plusn in light of the fact that Plaintiffs have
alternative means of travel.
As noted, the Court has concluded Plaintiffs have
constitutionally-protected liberty interests in the right to
travel internationally by air.

In addition, the Court concludes

Plaintiffs have satisfied the "plusn prong because being on the

No-Fly List means Plaintiffs are legally barred from traveling by
air at least to and from the United States and over United States
airspace, which they would be able to do but for their inclusion
on the No-Fly List.

Thus, Plaintiffs have suffered a change in

legal status because they "legally [cannot] do something that

[they] otherwise could do.n

Miller, 355 F.3d at 1179.

The

Court, therefore, concludes on this record that Plaintiffs have

constitutionally-protected liberty interests in their
reputations.
On the other hand, Plaintiffs' private interests at the
heart of their stigma-plus claim are not as strong.

Although

placement on the No-Fly List carries with it the significant

32 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 33 of 65

Page ID#: 3191

stigma of being a suspected terrorist and Defendants do not

contest the fact that the public disclosure involved may be
sufficient to satisfy the stigma-plus test, the Court notes the
limited nature of the public disclosure in this case mitigates
Plaintiffs' claims of injury to their reputations.

Because the

No-Fly List is not released publicly, the "publicu disclosure is

limited to a relatively small group of individuals in the same
area of the airport as the traveler when the traveler is denied
boarding.

Notwithstanding the fact that being denied boarding an

airplane and, in some instances, being arrested or surrounded by

security officials in an airport is doubtlessly stigmatizing, the
Court notes the breadth and specificity of the public disclosure
in this case is more limited than in the ordinary "stigma-plusu
case.

See, e.g.,

Paul v. Davis,

424 U.S. 693, 694-96

(1976) (distribution of a list and mug shots of "active

shopliftersu to approximately 800 merchants); Constantineau, 400
U.S. at 435-36 (posting a list of the identities of those who
have caused harm "by excessive drinkingu in all retail liquor
outlets); Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968,
973 (9th Cir. 2002) (filing of an adverse action report with the
California Medical Board and the National Practitioner Data Bank
detailing the reasons why a psychologist relinquished his
privileges at a hospital).

Nevertheless, the Court concludes the

injury to Plaintiffs' reputations is sufficient to implicate

33 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 34 of 65

Page ID#: 3192

Plaintiffs' constitutionally-protected interests in their

reputations.
On this record the Court concludes Plaintiffs' claims
raise constitutionally-protected liberty interests both in
international air travel and in reputation, and, therefore, the
first factor under the Mathews test weighs heavily in Plaintiffs'
favor.

B.

Second Factor:

Risk of Erroneous Deprivation

As noted, in the second Mathews factor the Court weighs "the

risk of an erroneous deprivation of such interest through the
procedures used, and the probative value, if any, of additional
or substitute procedural safeguards."
See also Vasquez,

1.

Mathews,

424 U.S. at 335.

734 F.3d at 1044.

Risk of Erroneous Deprivation

When considering the risk of erroneous deprivation, the

Court considers both the substantive standard that the government
uses to make its decision as well as the procedural processes in
place.

See Santosky v. Kramer,

455 U.S. 745, 761-64

(1982)

As noted, nominations to the TSDB are generally

accepted based on a "reasonable suspicion" that requires
"articulable facts which, taken together with .rational
inferences, reasonably warrant the determination that an

34 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 35 of 65

Page ID#: 3193

individual" meets the substantive derogatory criteria. 6

Statement of Stipulated Facts (#84) I 16.

Joint

This "reasonable

suspicion" standard is the same as the traditional reasonable

suspicion standard commonly applied by the courts.

See Terry v.

Ohio, 392 U.S. 1, 21 (1968) (permitting investigatorystops based

on a reasonable suspicion supported by "articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant the intrusion.")

See also Ramirez v. City of

Buena Park, 560 F. 3d 1012, 1020-21 (9th Cir. 2009).

"The

reasonable-suspicion standard is not a particularly high

United States v. Valdez-Vega, 7 38 F. 3d

threshold to reach."
1074, 1078

(9th Cir. 2013).

Although reasonable suspicion

requires more than "a mere 'hunch,'" the evidence available "need
not rise to the level required for probable cause, and
falls considerably short of satisfying a preponderance of the
evidence standard."

United States v. Arvizu, 534 U.S. 266, 274

(2002) (quoting Terry,

392 U.S. at 27).

It is against the backdrop of this substantive standard

that the Court considers the risk of erroneous deprivation of the
protected interests; i.e., the risk that travelers will be placed
6

As noted, the Court has reviewed in camera and considered

the additional substantive derogatory criteria for the No-Fly
List, but the Court does not refer to the substance of those
criteria or the Watchlisting Guidance.

35 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 36 of 65

Page ID#: 3194

on the No-Fly List under Defendants' procedures despite not

having a connection to terrorism or terrorist activities.
Defendants argue there is little risk of erroneous
deprivation because the TSC has implemented extensive quality
controls to ensure that the TSDB includes only individuals who
are properly placed there.

Defendants point out that the TSDB is

updated daily and audited for accuracy and currentness on a

regular basis and that each entry into the TSDB receives
individualized review if the individual files a DHS TRIP inquiry.
Finally, Defendants argue judicial review of the DHS TRIP
determination further diminishes the risk of erroneous
deprivation.
Plaintiffs, in turn, cite a 2007 report by the United
States Government Accountability Office and a 2009 report by the
Department of Justice Office of the Inspector General that
concludes the TSDB contains many errors and that the TSC has
failed to take adequate steps to remove or to modify records in a
timely manner even when necessary.

In addition, Plaintiffs

maintain the lack of notice of inclusion on the No-Fly List or

the reasons therefor forces aggrieved travelers to guess about
the evidence that they should submit in their defense and, by
definition, creates a one-sided and insufficient record at both
the administrative and judicial level that does not provide a

36 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 37 of 65

Page ID#: 3195

genuine opportunity to present exculpatory evidence for the

correction of errors.
Defendants point out that the information on which
Plaintiffs rely to support their contention that the TSC has
failed to modify adequately or to remove records when necessary
is outdated and that the 2009 report indicated significant
progress in maintenance of the TSDB.

Although Defendants are

correct that the TSC appears to have made improvements in

ensuring the TSDB is current and accurate,

Plaintiffs' contention

that the TSDB carries with it a risk of error, nevertheless,

carries significant weight.

This point was recently reinforced

in Ibrahim where the plaintiff was nominated to the No-Fly List

in 2004 as a consequence of human error despite the fact that she
did not pose a threat to national security.
Homeland Sec.,

at 9.

Ibrahim v. Dep' t of

No. C 06-00545 WHA (#682) (N.D. Cal. Jan.

14, 2014)

Although Ibrahim was taken off the No-Fly List shortly

after the 2004 listing, the mistake itsel was not discovered
until 2013 and Ibrahim continued to experience substantial
difficulties through the date of the order in which Judge William
Alsup ultimately ordered the government to purge

references to

the erroneous 2004 nomination in all of its databases.

16-25,

38.

Id. at

The fact that the TSDB could still contain erroneous

information more than nine years after commission of the error

37 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 38 of 65

Page ID#: 3196

belies Defendants' argument that the TSDB front-end safeguards

substantially mitigate the risk of erroneous deprivation.
In any event, the DHS TRIP process suffers from an even
more fundamental deficiency.

As noted, the reasonable suspicion

standard used to accept nominations to the TSDB is a low

evidentiary threshold.

This low standard is particularly

significant in light of Defendants' refusal to reveal whether

travelers who have been denied boarding and who submit DHS TRIP
inquiries are on the No-Fly List and, if they are on the List, to
provide the travelers with reasons for their inclusion on the
List.

"Without knowledge of a charge, even simple factual errors

may go uncorrected despite potentially easy, ready, and

persuasive explanations."

Al Haramain Islamic Found., Inc. v.

United States Dep't of Treasury,

686 F.3d 965,

982 (9th Cir.

2012) .
The availability of judicial review does little to cure this
risk of error.

While judicial review provides an independent

examination of the existing administrative record, that review is

of the same one-sided and potentially insufficient administrative
record that TSC relied on in its listing decision without any
additional meaningful opportunity for the aggrieved traveler to
submit evidence intelligently in order to correct anticipated

38 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

errors in the record.'

Filed 06/24/14

Moreover,

Page 39 of 65

Page ID#: 3197

judicial review only extends to

whether the government reasonably determined the traveler meets

the minimum substantive derogatory criteria; i.e., the reasonable
suspicion standard.

Thus, the fundamental flaw at the

administrative-review stage (the combination of a one-sided

record and a low evidentiary standard) carries over to the
judicial-review stage.
Accordingly, on this record the Court concludes the DHS
TRIP redress process, including the judicial review of DHS TRIP
determinations, contains a high risk of erroneous deprivation of
Plaintiffs' constitutionally-protected interests.

2.

Utility of Substitute Procedural Safeguards

In its analysis of the second Mathews factor, the Court

also considers the probative value of additional procedural
safeguards.

Mathews,

424 U.S. at 335.

Plaintiffs contend due

process requires Defendants to provide post-deprivation notice of

their placement on the No-Fly List; notice of the reasons they
have been placed on the List; and a post-deprivation, in-person
hearing to permit Plaintiffs to present exculpatory evidence.
Notably, Plaintiffs argue these additional safeguards are only
necessary after a traveler has been denied boarding.
7

Defendants,

Because the risk of erroneous deprivation arises from the

insufficiency of the administrative record rather than the
reviewing court's analysis, the Ninth Circuit's holding in
Arjmand is inapplicable. 745 F.3d at 1302-03.

39 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 40 of 65

Page ID#: 3198

in turn, assert the current procedures are sufficient in light of

the compelling government interests in national security and
protection of classified information.
Clearly, additional procedural safeguards would provide
significant probative value.

See Mathews,

424 U.S. at 335.

In

particular, notice of inclusion on the No-Fly List through the

DHS TRIP process after a traveler has been denied boarding would
permit the complainant to make an intelligent decision about
whether to pursue an administrative or judicial appeal.

In

addition, notice of the reasons for inclusion on the No-Fly List

as well as an opportunity to present exculpatory evidence would
help ensure the accuracy and completeness of the record to be
considered at both the administrative and judicial stages and, at
the very least, would provide aggrieved travelers the opportunity
to correct "simple factual errors" with "potentially easy, ready,
and persuasive explanations."
686 F.3d at 982.

See Al Haramain Islamic Found.,

Thus, the Court concludes additional procedural

safeguards would have significant probative value.

In summary, on this record the Court concludes the DHS TRIP
process presently carries with it a high risk of erroneous
deprivation in light of the low evidentiary standard required for
placement on the No-Fly List together with the lack of a
meaningful opportunity for individuals on the No-Fly List to
provide exculpatory evidence in an effort to be taken off of the

40 - OPINION AND ORDER

Case 3:10-cv-00750-BR

List.

Document 136

Filed 06/24/14

Page 41 of 65

Page ID#: 3199

Moreover, the Court finds additional procedural safeguards

would have significant probative value in ensuring that

individuals are not erroneously deprived of their
constitutionally-protected liberty interests.

Accordingly, the

Court concludes the second Matthews factor weighs heavily in

favor of Plaintiffs.

C.

The Government's Interest

When considering the third Mathews factor, the Court weighs

"the Government's interest, including the function involved and
the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail."
U.S. at 335.

See also Vasquez,

Mathews,

424

734 F.3d at 1044.

"[T]he Government's interest in combating terrorism is an

urgent objective of the highest order."
Law Project, 561 U.S. 1, 28

(2010).

Holder v. Humanitarian

"It is 'obvious and

unarguable' that no governmental interest is more compelling than

the security of the Nation."

Haig v. Agee, 453 U.S. 280, 307

(1981) (quoting Aptheker v. Sec'y of State,

(1964)).

See also Al Haramain,

378 U.S. 500, 509

686 F.3d at 980 ("[T]he

government's interest in national security cannot be

understated.").
"[T]he Constitution certainly does not require that the
government take actions that would endanger national security."
Al Haramain,

686 F.3d at 980.

41 - OPINION AND ORDER

Moreover, the government has a

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 42 of 65

Page ID#: 3200

"'compelling interest' in withholding national security

information from unauthorized persons."
Egan,

Dep't of the Navy v.

484 U.S. 518, 527 (1988) (quoting Snepp v. United States,

444 U.s. 507, 509 n. 3 (1980)).

"Certainly the United States

enjoys a privilege in classified information affecting national

security so strong that even a criminal defendant to whose
defense such information is relevant cannot pierce that privilege
absent a specific showing of materiality."

Nat'l Council of

Resistance of Iran v. Dep't of State, 251 F.3d 192, 207

Cir. 2001) (NCORI).

(D.C.

Obviously, the Court cannot and will not

order Defendants to disclose classified information to

Plaintiffs.
On this record the Court concludes the governmental
interests in combating terrorism and protecting classified
information are particularly compelling, and, viewed in
isolation, the third Mathews factor weighs heavily in Defendants'
favor.
D.

Balancing the Mathews Factors

"'[D)ue process, unlike some legal rules, is not a technical

conception with a fixed content unrelated to time, place and
circumstances.'"

Gilbert v. Hamar, 520 U.S. 924,

930

(1997) (quoting Cafeteria & Rest. Workers v. McElroy,

886, 895 (1961)).

367 U.S.

See also Ching v. Mayorkas, 725 F.3d 1149,

1157 (9'h Cir. 2013).

42 - OPINION AND ORDER

"'[D]ue process is flexible and calls for

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 43 of 65

Page ID#: 3201

such procedural protections as the particular situation

demands.'"

Gilbert v. Hamar, 520 U.S. at 930 (quoting Morrisey

v. Brewer, 408 U.S. 471, 481 (1972)).

See also Ching, 725 F. 3d

at 1157.
"'The fundamental requisite of due process of law is the
opportunity to be heard."'
Co., 339 U.S. 306, 314
385, 394

(1914)).

Cir. 2005).

Mullane v. Cent. Hanover Bank

&

Trust

(1950) (quoting Grannis v. Ordean, 234 U.S.

See also In re Rains, 428 F.3d 893, 903 (9th

"This right to be heard has little reality or worth

unless one is informed that the matter is pending and can choose
for himself whether to appear or default, acquiesce or contest."

Mullane, 339 U.S. at 314.

990, 993 (9th Cir. 2006).

See also Circu v. Gonzalez, 450 F.3d

"An elementary and fundamental

requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present objections."

Id.

See also Al Haramain, 686 F.3d at 980 ("[T]he Constitution

[requires] that the government take reasonable measures to ensure

basic fairness to the private party and that the government
follow procedures reasonably designed to protect against
erroneous deprivation of the private party's interests.").

43 - OPINION AND ORDER

Case 3:10-cv-00750-BR

1.

Document 136

Filed 06/24/14

Page 44 of 65

Page ID#: 3202

Applicable Caselaw

Although balancing the Mathews factors is especially

difficult in this case involving compelling interests on both
sides, the Court, fortunately, does not have to paint on an empty
canvass when balancing such interests.

Indeed, several other

courts have done so in circumstances that also required balancing

a plaintiff's due-process right to contest the deprivation of
important private interests with the government's interest in
protecting national security and classified information.
e.g., Al Haramain,

See,

686 F.3d 965; Jifry v. Fed. Aviation Admin.,

370 F.3d 1174 (D.C. Cir. 2004); NCORI, 251 F.3d 192 (D.C. Cir.
2001);

Ibrahim, No. C 06-00545 WHA (#682); KindHearts for

Charitable and Humanitarian Dev., Inc. v. Geithner, 647 F. Supp.

2d 857

(N.D. Ohio 2009).

a.

Ibrahim v. Department o

Home~and

Security

As noted, the plaintiff in Lbrahim was placed on

the No-Fly List in November 2004 as a result of human error.
Ibrahim, No. C 06-00545 WHA (#682), at 16.

Nonetheless,

Ibrahim's student visa was revoked in January 2005 because of

"law enforcement interest in her as a potential terrorist."
at 17-18 (emphasis added).

Id.

Even though Ibrahim was taken off of

the No-Fly List shortly after her initial listing and the
government had determined by February 10, 2006, that she had "no
nexus to terrorism," she remained in the TSDB until September 18,
44 - OPINION AND ORDER

Case 3:10-cv-00750-BR

2006.

Document 136

Id. at 16-18.

Filed 06/24/14

Page 45 of 65

Page ID#: 3203

Shortly after her removal from the TSDB,

Ibrahim was placed back in the TSDB before once again being
removed at the end of May 2007.

Id. at 18-19.

On October 20,

2009, however, Ibrahim was again nominated to the TSDB pursuant

to a secret exception to the reasonable-suspicion standard.

She

Id. at 19.

was not, however, placed on the No-Fly List.

When Ibrahim applied for a visa in 2009, her

application was denied pursuant to 8 U.S.C.

212(a)(3)(B), which

is a section of the Immigration and Nationality Act that relates

to terrorist activities.

The word "Terrorist" was handwritten on

the letter informing her of the denial.

Id. at 20-22.

Although

Ibrahim again applied for a visa in 2013, it was denied even

though the government conceded during litigation that Ibrahim did
not pose a threat to national security.

Id. at 18, 19-24.

In 2013 Ibrahim's daughter, a United States

citizen, was not permitted to board a flight to the United States
because her name was in a section of the TSDB in which travelers'
admissibility to enter the United States is evaluated.

Within

six minutes, however, United States Customs and Border Patrol

discovered the error and corrected it the next day, and Ibrahim's
daughter was removed from the TSDB.

Id. at 24-25.

The Ibrahim court applied the Mathews factors to

Ibrahim's procedural due-process challenge and found:
(1)

Ibrahim's presence on the No-Fly List and subsequent events

45 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 46 of 65

Page ID#: 3204

infringed on her right to travel, right to be free from

incarceration, and right to be free from the stigma associated
with her public denial of boarding an airplane and subsequent
incarceration;

(2) there was not merely the risk of erroneous

deprivation, but an actual erroneous deprivation; and (3) the

government interest was low because the government conceded

Id. at 27.

Ibrahim did not pose a threat to national security.

The court ordered the defendants to purge from government

databases all references to the erroneous 2004 listing and
ordered the government to give Ibrahim the opportunity to apply
for a discretionary waiver of visa ineligibility.

After

reviewing classified information, however, the court refused to

overturn Ibrahim's visa denial.
b.

Id. at 27-28, 31-34.

Nationa~

Counai~ of Resistance of Iran

(NCORI) v. Department of State

In NCORI two organizations sought review of the

Secretary of State's actions designating them as

~foreign

terrorist organizations" under the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA), 8 U.S.C.
195-96.

1189.

251 F.3d at

Such a designation under AEDPA results in the blocking

of all funds that the organization has on deposit in United

States banks, bans certain members and representatives of the
organization from entry into the United States, and forbids all
persons within the United States

~from

'knowingly providing

material support or resources' to the organization."

46 - OPINION AND ORDER

Id. at 196

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

(quoting 18 U.S.C. 2339B(a) (1)).

Page 47 of 65

Page ID#: 3205

During the administrative

review of the State Department's determination, the Secretary of

State "compiles an 'administrative record,'" but the Secretary
does not provide the target organizations with notice of the
materials used against them in that record, the opportunity to
comment on such materials, or the opportunity to develop the
administrative record further.

Id.

may contain classified materials.

The administrative record

Id.

Judicial review is

available, but it is based solely on the administrative record

and the classified portion of the record that the government
submits to the court ex parte and in camera.

Id. at 196-97.

When analyzing the procedural due-process claim,

the District of Columbia Circuit found the plaintiffs were
deprived of their property interests and a stigma-plus liberty
interest by their designation as foreign terrorist organizations.

Id. at 203-05.

After considering the risk of erroneous

deprivation and the government's interests, the court held the

Secretary must provide the organizations with "'notice of the
action sought,' along with the opportunity to effectively be
heard."

Id. at 208 (quoting Mathews, 424 U.S. at 334).

Accordingly, the court held the Secretary must (1) afford the
target organizations pre-deprivation notice that they are under
consideration for designation;

(2) provide the organizations with

notice of the unclassified portions of the administrative record

47 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 48 of 65

Page ID#: 3206

on which the Secretary will rely in making the designation

determination; and (3) provide the organizations with some
"opportunity to present, at least in written form,

such evidence

as those entities may be able to produce to rebut the

administrative record or otherwise negate the proposition that
they are foreign terrorist organizations.

Id. at 208-09,

Notably, however, the court left open "the possibility of the

Secretary, in an appropriate case, demonstrating the necessity of
withholding all notice and all opportunity to present evidence
until the designation is already made.
c.

Id. at 208.

KindHearts or Charitab~e Humanitarian

Deve~opment v. Geithner

In KindHearts the plaintiff challenged the Office

of Foreign Assets Control's provisional designation of KindHearts
as a Specially Designated Global Terrorist (SDGT).
2d at 864.

647 F. Supp.

On February 19, 2006, the Office of Foreign Assets

Control (OFAC) sent notice to KindHearts that OFAC had frozen all
of Kindhearts's assets and property pending investigation into
whether KindHearts was subject to designation as an SDGT.
866-67.

Id. at

The "blocking notice reflected KindHearts was being

investigated "for being controlled by, acting for or on behalf

of, assisting in or providing financial or material support to,
and/or otherwise being associated with Hamas.

48 - OPINION AND ORDER

Id. at 867.

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 49 of 65

Page ID#: 3207

After ignoring a responsive letter from KindHearts

and its request for a copy of the administrative record relied on
in the investigation, OFAC provisionally designated KindHearts as
an SDGT on May 25, 2007, more than a year after the initial asset
freeze.

Id.

With that letter OFAC included 35 unclassified and

nonprivileged documents; "acknowledged it also relied on other

'classified and privileged documents'u and provided a three-page
summary of the classified evidence; and informed KindHearts that
it could present any evidence or other information for OFAC's
consideration in making the final determination.

Id. at 868.

After unsuccessfully requesting access to the full classified and

unclassified record, KindHearts sent OFAC a 28-page preliminary
submission on June 25, 2007, together with 1,369 pages of
evidence to address OFAC's concerns to the best of Kindhearts'
ability.

Id.

OFAC later misplaced Kindhearts' submission.

I d.

at 868 n.4.
KindHearts filed a lawsuit in which it argued,
among other things, that "OFAC provided inadequate postdeprivation processu by failing "to specify any objective
criteria for blocking KindHearts' assetsu and by failing to
provide either pre- or post-deprivation process.

Id. at 899.

While finding other issues unripe for review on the merits, the
court addressed the sufficiency of the procedural protections
associated with the initial freeze of Kindhearts' assets.

49 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 50 of 65

Page ID#: 3208

In a summary of the notice provided to KindHearts,

the court noted "KindHearts remains largely uniformed about the
basis for the government's actions."

Id. at 904.

The

government's failure to provide notice was particularly important

in that "[n]otice is to come from the government because it alone
knows what it believes, and why what it believes justifies its
action."

Id. at 904 n.25 (emphasis in original).

Accordingly,

after weighing the Mathews factors, the court found OFAC failed
to provide KindHearts with proper notice, and, therefore,
"violated KindHearts' fundamental right to be told on what basis
and for what reasons the government deprived it of all access to
all its assets and shut down its operations."

Id. at 906.

In

addition to the notice deficiencies, the court found OFAC "failed

to provide a meaningful hearing, and to do so with sufficient
promptness to moderate or avoid the consequences of delay."

Id.

at 907-08.
d.

Jiry v.

Federa~

Aviation Administration

In Jifry the Federal Aviation Administration (FAA)

revoked the airman certificates of Jifry and Zarie on the ground
that the two pilots "presented 'a security risk to civil aviation
or national security.'"

Jifry, 370 F.3d at 1176-77.

Jifry and

Zarie were both nonresident alien pilots who used their FAA
certificates to pilot aircraft abroad, but they had not piloted

50 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 51 of 65

Page ID#: 3209

commercial aircraft in the United States for four and nine years
respectively.

Id. at 1177.

The airman certificate-revocation process involved

both the TSA and FAA.

Id.

When the TSA finds a pilot poses a

security threat, TSA issues an Initial Notification of Threat

Assessment (Initial Notice) to the individual and serves that
determination on the FAA.

Id.

The pilot may request "releasable

materials upon which the Initial Notice 'lias based."

Id.

On

receipt of the releaseable materials, the pilot has 15 days to

submit a substantive response to the Initial Notice.

Id.

The

TSA Deputy Administrator then reviews the record de novo and

issues a Final Notification of Threat Assessment (Final Notice)
if he finds the pilot poses a security threat, and the FAA
revokes the pilot's certificate.

Id.

The pilot may appeal to

the National Transportation Safety Board and then to the court of

appeals.

Id. at 1177-78.

Jifry and Zarie received the Initial Notice and

requested the releaseable materials.

The materials that TSA

provided, however, did not include the factual basis for TSA's
determination because it was based on classified information.
Id. at 1178.

Jifry and Zarie stated in their written response

that "the 'lack of evidence and information about the basis for
the determination contained in the TSA's response' made it
impossible for them to specifically rebut the TSA's allegations,

51

OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 52 of 65

and [they denied) that they were security threats.n

Page ID#: 3210

Id.

The TSA

Deputy Administrator issued a Final Notice, and the FAA

subsequently revoked the pilots' certificates.

Id.

Jifry and Zarie argued the procedures for revoking

their certificates violated their rights to due process.

After

assuming Jifry and Zarie were entitled to constitutional

protections as nonresident alien pilots with FAA certificates,
the court found the balance of the Mathews factors favored the
FAA.

The court noted the pilots' interest in possessing FAA

airman certificates to fly foreign aircraft outside of the United

States "pales in significance to the government's security
interests in preventing pilots from using civil aircraft as
instruments of terror.n

Id. at 1183.

The court also noted

"whatever the risk of erroneous deprivation, the pilots had the

opportunity to file,a written reply to the TSA's initial
determination and [the] independent de novo review of the entire
administrative record by the Deputy Administrator of the TSA
. and ex parte, in camera judicial review of the recordn and
that "substitute procedural safeguards may be impracticablen in
light of the government's interest in protecting classified
information.

The court relied on NCORI for the proposition that

the government needed to "'afford to the entities under

consideration notice that the designation is impending,'
and 'the opportunity to present, at least in written form, such

52 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 53 of 65

Page ID#: 3211

evidence as those entities may be able to produce to rebut the

administrative record or otherwise negate the proposition that
they are foreign terrorist organizations.'"
(quoting NCORI, 251 F. 3d at 208-09).

The court found the TSA and

FAA's procedures satisfied this standard.

e.

Id. at 459-60

Id. at 460.

Al Haramain Islamic Foundation v. United

States Department o the Treasury

The issues in Al Haramain are similar to those in

this case.

In Al Haramain the Ninth Circuit addressed the

sufficiency of the procedural safeguards in OFAC's investigation

and designation of AHIF-Oregon as an SDGT.

On February 19, 2004,

OFAC issued a press release stating it had blocked the assets of

AHIF-Oregon pending an investigation concerning the potential
designation of AHIF-Oregon as an SDGT.
973.

Al Haramain,

686 F.3d at

OFAC did not provide notice before blocking AHIF-Oregon's

assets nor did the press-release reveal the reasons for the
investigation.

OFAC and AHIF-Oregon exchanged "voluminous

documents on a range of topics," the bulk of which concerned

AHIF-Oregon's possible connections to and financial support of
Chechen terrorism.

Id.

On September 9, 2004, OFAC issued a

press-release declaring that it had designated AHIF-Oregon as an

SDGT because of direct links between AHIF-Oregon and Osama bin
Laden, violations of tax and money-laundering laws, attempts to
conceal the movement of funds intended for Chechnya by falsely

53 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 54 of 65

Page ID#: 3212

representing that those funds were for the purpose of purchasing

a prayer house in Missouri, and re-appropriation of funds donated
for the purpose of humanitarian relief to support mujahideen in
Chechnya.

Id. at 973-74.
On September 16, 2004, OFAC sent a letter advising

AHIF-Oregon that it had been designated as an SDGT and that it

could request administrative reconsideration.

Id. at 974.

In

early 2005 AHIF-Oregon submitted additional documents for the

administrative record and requested reconsideration of the
designation.

AHIF-Oregon asserted it did not have a connection

to terrorism and provided a detailed explanation of its Chechen

donation.

I d.

Thereafter it repeatedly sought an explanation

for its designation and a determination of its request for

reconsideration, but OFAC did not respond.

Id.

AHIF-Oregon then

filed a lawsuit in which it asserted the procedural protections

provided by OFAC violated AHIF-Oregon's procedural due-process
rights under the United States Constitution.
In November 2007 after the commencement of AHIFOregon's lawsuit and more than three years after the letter
informing AHIF-Oregon of its designation, OFAC sent AHIF-Oregon a
letter advising that OFAC provisionally intended "to
'redesignate'n AHIF-Oregon and offering AHIF-Oregon a final
opportunity to submit documentation for OFAC's consideration.

Id.

AHIF-Oregon again submitted nearly 1,000 pages of documents.

54 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Id.

Document 136

Filed 06/24/14

Page 55 of 65

Page ID#: 3213

On February 6, 2008, OFAC sent AHIF-Oregon a letter stating

OFAC had determined AHIF-Oregon continued to meet the criteria

for designation as an SDGT and specified three reasons for the
designation:

(1) two designated persons owned or controlled

AHIF-Oregon;

(2) AHIF-Oregon acted for or on behalf of those

designated persons; and (3) AHIF-Oregon operated as a branch

office of the Al Haramain Islamic Foundation, an international
charity that provided support for al-Qaeda and other SDGTs.

Id.

The court found the procedural protections

afforded to AHIF-Oregon did not satisfy due process.
the Mathews factors,

Applying

the court found AHIF-Oregon's "property

interest is significant" because the designation "completely

shutters all
indefinitely.

[of AHIF-Oregon's] domestic operations"

Id. at 979-80.

On the other hand, the court found

"the government's interest in national security cannot be

understated."

Id. at 980.
"[W]ith respect to the use of classified

information without disclosure," the court observed "' [o] ne .vould

be hard pressed to design a procedure more likely to result in
erroneous deprivations.'"

Id.

(quoting American-Arab Anti-

Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir.

1995)) .

As to the probative value of additional procedural

safeguards, the court found "[t]o the extent that an unclassified

summary could provide helpful information, such as the subject

55 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 56 of 65

Page ID#: 3214

matter of the agency's concerns, and to the extent that it is

feasible to permit a lawyer with security clearance to view the
classified information, the value of those methods seems
undeniabl~.

Id. at 982-83.
The Al Haramain court noted the Ninth Circuit held

in Gete v.

Immigration and Naturalization Services, 121 F.3d

1285, 1287-91 (9'h Cir. 1997), that in the context of the

government's seizure of vehicles from aliens who allegedly
transported unauthorized aliens into the country, "[d]ue
[p]rocess required the INS to disclose the 'factual bases for
seizure[]' and 'the specific statutory provision allegedly
violated.'
at 1298).

Al Haramain,

68 6 F. 3d at 987 (quoting Gete, 121 F. 3d

The court specifically rejected the defendants'

argument that NCORI and a subsequent District of Columbia Circuit

case, Holy Land Foundation for Relief and Development v.
Ashcroft, 333 F.3d 156, 163-64

(D.C. Cir. 2003), stood for the

proposition that the agency need not provide a statement of

reasons for its investigation.

The Ninth Circuit observed the

District of Columbia Circuit did not address whether the agency

was required to provide notice of the reasons for the deprivation
in either NCORI or Holy Land Foundation.
at 987-88.

Al Haramain,

686 F.3d

To the extent that NCORI and Holy Land Foundation

could be interpreted as permitting the agency to avoid providing

a statement of reasons for the deprivation, the Al Haramain court
56 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 57 of 65

Page ID#: 3215

explicitly stated those cases were inconsistent with the Ninth

Circuit's precedent in Gete.
held:

~In

Id. at 988.

Accordingly, the court

the absence of national security concerns, due process

requires OFAC to present the entity with, at a minimum, a timely

statement of reasons for the investigation."

Id. at 987.

As to

national security concerns about providing a statement of reasons

for the deprivation or permitting counsel with security clearance
to view the classified information, the court

~recognize[d]

that

disclosure may not always be possible" and that the agency may in
some cases withhold such mitigating measures after considering
~at

a minimum, the nature and extent of the classified

information, the nature and extent of the threat to national

security, and the possible avenues available to allow the
designated person to respond more effectively to the charges."
Id. at 983-84.

2.

Application to the DHS TRIP Process

As noted, the Court finds Plaintiffs here have

significant protected liberty interests at stake.

Plaintiffs'

interests in traveling internationally by air are substantially

greater than the interest "in possessing FAA airman certificates
to fly foreign aircraft outside the United States" as in Jifry.
Although the private interests involved in Al Haramain,
KindHearts,

and NCORI are somewhat different from Plaintiffs'

individual interests, the analysis in those three cases

57 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

(particularly in Al Haramain)

Filed 06/24/14

Page 58 of 65

Page ID#: 3216

is more closely applicable to this

case.
As in Al Haramain, "the government's interest in
national security cannot be understated" in this case.
980.

Id. at

Nevertheless, the Ninth Circuit in Al Haramain found

additional probative procedural protections were possible without

jeopardizing the government's interest in national security.

The

adequacy of current procedures and potential additional

procedures, however, affect the weight given to the governmental
interest.

See Al Haramain,

686 F. 3d at 983

("In many cases,

though, some information could be summarized or presented to a

lawyer with a security clearance without implicating national
security.").

Thus, while the government's interest in national

security in this case weighs heavily, the sufficiency of the DRS

TRIP redress process ultimately turns on the procedural
protections provided to Plaintiffs.
A comparison of the procedural protections provided in
this case with those provided in Al Haramain,

Jifry,

KindHearts,

and NCORI reveals the DRS TRIP process falls far short of
satisfying the requirements of due process.
Jifry,

In Al Haramain,

and KindHearts the defendants provided the plaintiffs with

some materials relevant to the respective agencies' reasons for

the deprivation at some point in the proceedings.

In KindHearts

the initial notice of the asset freeze advised<the plaintiff that

58 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 59 of 65

Page ID#: 3217

the investigation concerned connections between KindHearts and

Hamas and a later, provisional designation notice included the
unclassified administrative record and a three-page summary of
the classified evidence.

647 F. Supp. 2d at 866-68.

In Jifry

TSA provided the pilots with the Initial Notice and, upon
request, the ftreleaseable materials" before issuing the Final
Notice.

370 F.3d at 1177.

Finally, in Al Haramain during the

months after AHIF-Oregon's assets were initially frozen, OFAC and

AHIF-Oregon ftexchanged voluminous documents," the ftbulk" of which
ftconcerned AHIF-Oregon's possible connections to Chechen
terrorism in Russia."

Al Haramain,

686 F.3d at 973.

Unlike the plaintiffs in Al Haramain, KindHearts, and

Jifry,

however, Plaintiffs in this case were not given any notice

of the reasons for their placement on the No-Fly List nor any
evidence to support their inclusion on the No-Fly List.

Indeed,

the procedural protections provided to Plaintiffs through the DHS

TRIP process fall substantially short of even the notice that the
courts found insufficient in KindHearts and Al Haramain.

In this

respect, this case is similar to NCORI in which the plaintiffs

were not afforded ftnotice of the materials used against [them],
or a right to comment on such materials or [to develop the]
administrative record."

NCORI,

251 F.3d at 196.

Defendants' failure to provide any notice of the

reasons for Plaintiffs' placement on the No-Fly List is
59 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 60 of 65

Page ID#: 3218

especially important in light of the low evidentiary standard

required to place an individual in the TSDB in the first place.
When only an ex parte showing of reasonable suspicion supported
by "articulable facts

taken together with rational

inferences" is necessary to place an individual in the TSDB, it

is certainly possible, and probably likely, that "simple factual
errors" with "potentially easy, ready, and persuasive
explanations" could go uncorrected.
982.

See Al Haramain,

686 F.3d at

Thus, without proper notice and an opportunity to be heard,

an individual could be doomed to indefinite placement on the NoFly List.

Moreover, there is nothing in the DHS TRIP

administrative or judicial-review procedures that remedies this

fundamental deficiency.

The procedures afforded to Plaintiffs

through the DHS TRIP process are wholly ineffective and,

therefore, fall short of the "elementary and fundamental
requirement of due process" to be afforded "notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present objections."

See Mullane,

339 U.S. at

314.
Accordingly, on this record the Court concludes the
absence of any meaningful procedures to afford Plaintiffs the
opportunity to contest their placement on the No-Fly List
violates Plaintiffs' rights to procedural due process.

60 - OPINION AND ORDER

Case 3:10-cv-00750-BR

3.

Document 136

Filed 06/24/14

Page 61 of 65

Page ID#: 3219

Due-Process Requirements

Although the Court holds Defendants must provide a new

process that satisfies the constitutional requirements for due
process, the Court concludes Defendants (and not the Court) must
fashion new procedures that provide Plaintiffs with the requisite
due process described herein without jeopardizing national
security.
Because due process requires Defendants to provide
Plaintiffs (who have all been denied boarding flights and who
have submitted DHS TRIP inquiries without success) with notice
regarding their status on the No-Fly List and the reasons for
placement on that List, it follows that such notice must be
reasonably calculated to permit each Plaintiff to submit evidence
relevant to the reasons for their respective inclusions on the
No-Fly List.

In addition, Defendants must include any responsive

evidence that Plaintiffs submit in the record to be considered at

both the administrative and judicial stages of review.

As noted,

such procedures could include, but are not limited to, the
procedures identified by the Ninth Circuit in Al Haramain; that
is, Defendants may choose to provide Plaintiffs with unclassified
summaries of the reasons for their respective placement on the
No-Fly List or disclose the classified reasons to properlycleared counsel.

61 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 62 of 65

Page ID#: 3220

Although this Court cannot foreclose the possibility

that in some cases such disclosures may be limited or withheld
altogether because any such disclosure would create an undue risk
to national security, Defendants must make such a determination
on a case-by-case basis including consideration of, at a minimum,
the factors outlined in Al Haramain; i.e.,
extent of the classified information,

( 1)

the nature and

(2) the nature and extent

of the threat to national security, and (3) the possible avenues

available to allow the Plaintiff to respond more effectively to
the charges.

See Al Haramain,

686 F.Jd at 984.

Such a

determination must be reviewable by the relevant court.

II.

Claim Three:

Administrative Procedure Act

Plaintiffs also raise claims under 5 U.S.C. 706(2) (A) and

706 (2) (B) of the APA.

A.

Section 706(2) (A)

Under Section 706 (2) (A) the court will only set aside an
agency action if it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law."

An agency

rule is arbitrary and capricious if

the agency has relied on factors which Congress
has not intended it to consider, entirely failed
to consider an important aspect of the problem,
offered an explanation for its decision that runs
counter to the evidence before the agency, or is
so implausible that it could not be ascribed to a
difference in view or the product of agency
experti~e.

62 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 63 of 65

Page ID#: 3221

Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co.,

463 U.S. 29, 43 (1983).

When prescreening passengers, Congress instructed the

Executive to "establish a procedure to enable airline passengers,
who are delayed or prohibited from boarding a flight because
the advanced passenger prescreening system determined that they
might pose a security threat, to appeal such determination
and correct information contained in the system."

4 9 U.S. C.

See also 49

u.s.c.

44903 (j) (2) (C) (iii) (I) (emphasis added).

44903 (j) (2) (G) (i) (the Executive "shall establish a timely and

fair process for individuals identified as a threat .

. to

appeal to the [TSA] the determination and correct any erroneous

information.") .
As discussed herein at length, the DHS TRIP process does not
provide a meaningful mechanism for travelers who have been denied
boarding to correct erroneous information in the government's
terrorism databases.

A traveler who has not been given any

indication of the information that may be in the record does not

have any way to correct that information.
TRIP process "entirely fail[s]

As a result, the DHS

to consider an important aspect"

of Congress's instructions with respect to travelers denied

boarding because they are on the No-Fly List.
Mfrs. Ass'n, 463 U.S. at 43.

63 - OPINION AND ORDER

See Motor Veh.

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 64 of 65

Page ID#: 3222

Accordingly, on this record the Court concludes the DHS TRIP

process violates 706 (2) (A) of the APA.
B.

Section 706(2) (B)

Under 5 U.S.C. 706(2) (B) the court must set aside any
agency action that is

~contrary

privilege, or immunity."

to constitutional right, power,

As noted, the Court has concluded the

DHS TRIP process violates Plaintiffs' rights to procedural due

process under the United States Constitution.

Accordingly,

Plaintiffs' claim under 706(2) (B) merely mirrors Plaintiffs'

procedural due-process claim.
Because the Court has already concluded the DHS TRIP process
violates Plaintiffs' procedural due-process rights, the Court
also concludes the DHS TRIP process violates 706 (2) (B) of the
APA.
C.

Remedy

As noted, Plaintiffs' APA claims are closely related to

Plaintiffs' procedural due-process claims, and the substantive
deficiencies in the DHS TRIP redress process are the same under
the APA as they are under procedural due process.

Accordingly,

the substitute procedures that Defendants select to remedy the

violations of Plaintiffs' due-process rights, if sufficient, will
also remedy the violations of Plaintiffs' rights under the APA.

64 - OPINION AND ORDER

Case 3:10-cv-00750-BR

Document 136

Filed 06/24/14

Page 65 of 65

Page ID#: 3223

CONCLUSION

For these reasons, the Court DENIES Defendants' Motion (#85)

for Partial Summary Judgment and GRANTS Plaintiffs' Cross-Motion
(#91) for Partial Summary Judgment as to Claims One and Three in
Plaintiffs' Third Amended Complaint (#83).
The Court directs the parties to confer as to the next steps
in this litigation and to file no later than July 14, 2014, a
Joint Status Report with their respective proposals and
schedules.

The Court will schedule a Status Conference

thereafter at which primary counsel for the parties should plan

to attend in person.
IT IS SO

ORDERE~

DATED this

}.LJ

day of June, 2014.

United States District Judge

65 - OPINION AND ORDER

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 1 of 35 Page ID #:1

1
2
3
4
5
6
7
8
9
10
11

Ahilan Arulanantham (SBN 237841)

aarulanantham@aclu-sc.org
Jennifer L. Pasquarella (SBN 263241)
jpasquarella@aclu-sc.org
Bardis Vakili (SBN 247783)
bvakili@aclu-sc.org
ACLU Foundation of Southern California
1313 W. 8th Street
Los Angeles, California 90017
Telephone: (213) 977-5211
Facsimile: (213) 997-5297
Kerry C. Fowler (SBN 228982)
kcfowler@jonesday.com
Charlotte Wasserstein (SBN 279442)
cswasserstein@jonesday.com
Jones Day
555 S. Flower Street, Fiftieth Floor
Los Angeles, CA 90071
Telephone: (213) 243-2489

14

Stacy Tolchin (SBN 217431)

stacy@tolchinimmigration.com
Law Offices of Stacy Tolchin
634 S. Spring St., Suite 500A
Los Angeles, CA 90014
Telephone: (213) 622-7450
Facsimile: (213) 622-7233

15

Attorneys for Plaintiffs (additional counsel on next page)

12
13

16
17
18
19
20
21
22
23
24
25
26
27
28

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
Case No: 2:14-CV-05995

REEM MUHANNA, AHMAD

MUHANNA, ABRAHIM MOSAVI,
NEDA BEHMANESH, and AHMED
HASSAN,

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

Plaintiffs,
vs.
UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES;
JEH JOHNSON, in his official capacity
as Secretary of the U.S. Department of
Homeland Security; LEON
RODRIGUEZ, in his official capacity as
Director of the U.S. Citizenship and
Immigration Services; SARAH
KENDALL, in her official capacity as
Associate Director of the Fraud
1

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 2 of 35 Page ID #:2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

Detection and National Security

Directorate of the U.S. Citizenship and
Immigration Services (FDNS);
DONALD J. MONICA, in his official
capacity as Associate Director of the
Field Operations Directorate of the U.S.
Citizenship and Immigration Services;
LISA KEHL, in her official capacity as
District Director for District 16, Dallas
District Office of the U.S. Citizenship
and Immigration Services; GARY
GARMAN, in his official capacity as
Acting Field Office Director for the
Dallas Field Office of the U.S.
Citizenship and Immigration Services;
ANNA CHAU, in her official capacity
as Acting District Director for the
District 23, Los Angeles District Office
of the U.S. Citizenship and
Immigration; CORRINA LUNA, in her
official capacity as Field Office Director
for the Los Angeles Field Office of the
U.S. Citizenship and Immigration
Services; DAVID DOUGLAS, in his
official capacity as District Director for
District 15, Kansas City of the U.S.
Citizenship and Immigration Services;
and LESLIE TRITTEN, in her official
capacity as Field Office Director, for the
St. Paul Field Office of the U.S.
Citizenship and Immigration Services,
Defendants.

18
19
20
21
22
23
24
25
26
27
28
2

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 3 of 35 Page ID #:3

1
2
3
4
5
6
7
8
9
10
11

James E. Gauch (pro hac vice forthcoming)

jegauch@jonesday.com
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001-2113
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
Lee Gelernt (pro hac vice forthcoming)
lgelernt@aclu.org
Hina Shamsi (pro hac vice forthcoming)
hshamsi@aclu.org
Hugh Handeyside (pro hac vice forthcoming)
hhandeyside@aclu.org
Dror Ladin (pro hac vice forthcoming)
dladin@aclu.org
American Civil Liberties Union Foundation
125 Broad Street
New York, NY 10004
Telephone: (212) 549-2616
Facsimile: (212) 549-2654

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 4 of 35 Page ID #:4

INTRODUCTION

1
2

1.

This lawsuit challenges the United States Citizenship and Immigration

Services (USCIS) unlawful delay and denial of Plaintiffs applications for

citizenship and lawful permanent residence under a secretive policy that has

blacklisted Plaintiffs as national security concerns, when in fact they are not, and

impermissibly barred them from upgrading their immigration status, despite their

eligibility to do so.

2.

Mosavi, and Ahmed Osman Hassan are law-abiding, long-time residents of the

Plaintiffs Reem Muhanna, Ahmad Muhanna, Neda Behmanesh, Abrahim

10

United States who meet the statutory criteria to be naturalized as American citizens

11

or, in the case of Mr. Hassan, to become a lawful permanent resident (LPR)

12

based on his refugee status. However, USCIS has not adjudicated Plaintiffs

13

applications in accordance with those criteria. Instead, USCIS has applied

14

different rules under a policy known as the Controlled Application Review and

15

Resolution Program (CARRP), which has prevented the agency from granting

16

Plaintiffs applications.

17

3.

18

waitingadjudicate their pending applications for naturalization and LPR

19

adjustment of status as required by law.

20

4.

21

the authority to establish uniform rules of naturalization. The Immigration and

22

Nationality Act (INA) sets forth such rules, along with the requirements for

23

refugee adjustment of status to lawful permanent residence. When these rules and

24

requirements have been met, as they have been in Plaintiffs cases, USCIS is

25

obligated to grant citizenship and adjustment of status.

26

5.

27

neither been approved by Congress nor subjected to public notice and comment

28

to investigate and adjudicate applications deemed to present potential national

Plaintiffs bring this action to compel the USCIS to finallyafter years of

The Constitution expressly assigns to Congress, not the executive branch,

Since 2008, however, USCIS has used CARRPan internal policy that has

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 5 of 35 Page ID #:5

1

security concerns. CARRP prohibits USCIS field officers from approving an

application with a potential national security concern, instead directing officers

to deny the application or delay adjudicationoften indefinitelyin violation of

the INA.

6.

than the security-related ineligibility criteria for immigration applications set forth

by Congress in the INA. Rather, CARRP identifies national security concerns

based on deeply-flawed and expansive government watchlists, and other vague and

overbroad criteria that bear little, if any, relation to the security-related statutory

CARRPs definition of national security concern is far more expansive

10

ineligibility criteria. The CARRP definition casts a net so wide that it brands

11

innocent, law-abiding residents, like Plaintiffsnone of whom pose a security

12

threatas national security concerns on account of innocuous activity and

13

associations, and characteristics such as national origin.

14

7.

15

USCIS data reveals that between FY2008 and FY2012, more than 19,000 people

16

from twenty-one Muslim-majority countries or regions were subjected to CARRP.

17

8.

18

requires. Each Plaintiff has experienced an extraordinary processing delay, an

19

outright denial of the statutory entitlement he or she seeks, or both.

20

9.

21

status, it has not notified Plaintiffs that it considers them potential national

22

security concerns, provided the reasons why it classified them in this way, or

23

afforded them any opportunity to address and correct any basis for USCISs

24

concerns.

25

10.

26

CARRP to their immigration applications and declare that CARRP violates the

27

INA; Article 1, Section 8, Clause 4 of the United States Constitution (the

28

naturalization clause); the Due Process Clause of the Fifth Amendment to the U.S.

Although the total number of people subject to CARRP is not known,

Due to CARRP, USCIS has not approved Plaintiffs applications, as the law

Although USCIS has barred Plaintiffs from naturalization and adjustment of

Plaintiffs therefore request that the Court enjoin USCIS from applying

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 6 of 35 Page ID #:6

1

Constitution; and the Administrative Procedure Act (APA).

JURISDICTION AND VENUE

2
3

11.

This Court has subject matter jurisdiction under 28 U.S.C. 1331 and 5 U.S.C.

702 (waiver of federal governments sovereign immunity). This Court also has

authority to grant declaratory relief under 28 U.S.C. 2201 and 2202, and

injunctive relief under 5 U.S.C. 702 and 28 U.S.C. 1361.

12.

1391(b) and 1391(e) because (1) Plaintiffs Abrahim Mosavi and Neda

Plaintiffs allege violations of the INA, the APA, and the U.S. Constitution.

Venue is proper in the Central District of California under 28 U.S.C.

10

Behmanesh reside in this district; (2) a substantial part of the events giving rise to

11

the claims occurred in this district; and (3) Plaintiffs sue Defendants in their

12

official capacity as officers of the United States.

PARTIES

13
14

13.

Plaintiff Reem Muhanna, the wife of Plaintiff Ahmad Muhanna, is a forty-

15

six year-old national of Palestine and an LPR of the United States. She has lived in

16

the United States since 1988 and resides in Richardson, Texas. She applied for

17

naturalization in May 2007. Even though she satisfies all statutory criteria for

18

naturalization, USCIS subjected her application to CARRP, and as a result, has not

19

finally adjudicated and approved it.

20

14.

21

fifty-three year-old national of Palestine and an LPR of the United States. He has

22

lived in the United States since 1985 and resides in Richardson, Texas. He applied

23

for naturalization in May 2007. Even though he satisfies all statutory criteria for

24

naturalization, USCIS subjected his application to CARRP, and as a result, has not

25

finally adjudicated and approved it.

26

15.

27

the United States. He has lived in the United States since 1977 and resides in

28

Beverly Hills, California. He applied for naturalization nearly fourteen years ago,

Plaintiff Ahmad Muhanna, the husband of Plaintiff Reem Muhanna, is a

Plaintiff Abrahim Mosavi is a sixty year-old national of Iran and an LPR of

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 7 of 35 Page ID #:7

1

in November 2000. Even though he satisfies all statutory criteria for

naturalization, USCIS subjected his application to CARRP, and as a result, has not

finally adjudicated and approved it.

16.

LPR of the United States. She has lived in the United States since 1990 and

resides in Beverly Hills, California. She applied for naturalization on December 8,

2011. Even though she satisfies all statutory criteria for naturalization, USCIS has

subjected her application to CARRP, and as a result, has not finally adjudicated

and approved it.

Plaintiff Neda Behmanesh is a forty-five year-old national of Iran and an

10

17.

Plaintiff Ahmed Osman Hassan is a thirty-six year-old Somali national. He

11

has lived in the United States as a refugee since 2004 and resides in Rochester,

12

Minnesota. He applied for adjustment of status to lawful permanent resident on

13

April 18, 2006. USCIS denied his application on August 7, 2012 because it

14

claimed he was not a refugee. On November 18, 2013, he submitted a new

15

application for adjustment of status to lawful permanent resident. Even though he

16

satisfies all statutory criteria for refugee adjustment of status, USCIS has subjected

17

his application to CARRP, and as a result, has not finally adjudicated and approved

18

it.

19

18.

20

(DHS), and is responsible for overseeing lawful immigration to the United States

21

and the naturalization of LPRs as U.S. citizens. USCIS implements federal law

22

and policy with respect to immigration applications, including CARRP.

23

19.

24

USCIS and several other immigration agencies operate. Accordingly, Secretary

25

Johnson has supervisory responsibility over USCIS. Plaintiffs sue Defendant

26

Johnson in his official capacity.

27

20.

28

establishes and implements naturalization and other immigration applications

Defendant USCIS is a component of the Department of Homeland Security

Defendant Jeh Johnson is the Secretary of DHS, the department under which

Defendant Leon Rodriguez is the Director of USCIS. Director Rodriguez

7

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 8 of 35 Page ID #:8

1

policy for USCIS and its subdivisions, including CARRP. Plaintiffs sue Defendant

Rodriguez in his official capacity.

21.

and National Security Directorate of USCIS (FDNS), which is ultimately

responsible for determining whether individuals or organizations filing

naturalization and other immigration applications pose a threat to national security,

public safety, or the integrity of the nations legal immigration system. Associate

Director Kendall establishes and implements policy for FDNS, including CARRP.

Plaintiffs sue Defendant Kendall in her official capacity.

Defendant Sarah Kendall is the Associate Director of the Fraud Detection

10

22.

Defendant Donald J. Monica is the Associate Director of the Field

11

Operations Directorate of USCIS, which is responsible for and oversees the

12

processing and adjudication of immigration applications through the USCIS field

13

offices and the National Benefits Center. Plaintiffs sue Defendant Monica in his

14

official capacity.

15

23.

16

Office of USCIS, which has responsibility for the Dallas, Texas and Oklahoma

17

City, Oklahoma Field Offices. District Director Kehl has been delegated the

18

authority to adjudicate immigration applications filed within her district and is

19

responsible for the adjudication of Plaintiff Reem Muhannas and Plaintiff Ahmad

20

Muhannas applications. Plaintiffs sue Defendant Kehl in her official capacity.

21

24.

22

Field Office of USCIS. He is the official in charge of the field office where

23

Plaintiffs Reem Muhanna and Ahmad Muhanna submitted their naturalization

24

applications, and he is responsible for the adjudication of their applications.

25

Plaintiffs sue Defendant Garman in his official capacity.

26

25.

27

Angeles District Office of USCIS, which has responsibility for the Los Angeles,

28

California; Los Angeles County, California; Santa Ana, California; San

Defendant Lisa Kehl is the District Director for District 16, Dallas District

Defendant Gary Garman is the Acting Field Office Director for the Dallas

Defendant Anna Chau is the Acting District Director for the District 23, Los

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 9 of 35 Page ID #:9

1

Bernardino, California; and San Fernando Valley, California Field Offices. Acting

District Director Chau has been delegated the authority to adjudicate naturalization

applications filed within her district, and is responsible for the adjudication of

Plaintiff Mosavis and Plaintiff Behmaneshs naturalization applications. Plaintiffs

sue Defendant Chau in her official capacity.

26.

Field Office of USCIS. She is the official in charge of the field office where

Plaintiffs Mosavi and Behmanesh submitted their naturalization applications, and

she is responsible for the adjudication of their applications. Plaintiffs sue

Defendant Corrina Luna is the Field Office Director for the Los Angeles

10

Defendant Luna in her official capacity.

11

27.

12

City of USCIS, which has responsibility for Missouri, Iowa, Western Wisconsin,

13

Minnesota, North Dakota, South Dakota, Nebraska, Kansas, and Southern Illinois.

14

District Director Douglas has been delegated the authority to adjudicate

15

naturalization applications filed within his district, and is responsible for the

16

adjudication of Plaintiff Ahmed Osman Hassans adjustment of status application.

17

Plaintiff sues Defendant Douglas in his official capacity.

18

28.

19

Office of USCIS. She is the official in charge of the field office where Plaintiff

20

Ahmed Osman Hassan submitted his adjustment of status application, and she is

21

responsible for the adjudication of his application. Plaintiff sues Defendant Tritten

22

in her official capacity.

Defendant David Douglas is the District Director for District 15, Kansas

Defendant Leslie Tritten is the Field Office Director for the St. Paul Field

23

LEGAL FRAMEWORK

24

Naturalization Procedure

25

29.

To naturalize as a U.S. citizen, an applicant must satisfy certain eligibility

26

criteria under the INA and its implementing regulations. See 8 U.S.C. 1421-

27

1458; 8 C.F.R. 316.1-316.14.

28

30.

Applicants must prove that they are at least 18 years of age, 8 C.F.R.
9

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 10 of 35 Page ID #:10

1

316.2(a)(1); have resided continuously, after being lawfully admitted in the

United States for at least five years; and have been physically present in the

United States for at least half of that time. 8 U.S.C. 1427(a)(1).

31.

preceding the date of application, attach[ment] to the principles of the

Constitution of the United States, and favorabl[e] dispos[ition] toward the good

order and happiness of the United States . . . . 8 C.F.R. 316.2(a)(7).

32.

naturalization unless, during the five years preceding the date of the application,

10

they are found (1) to be a habitual drunkard, (2) to have committed certain drug-

11

related offenses, (3) to be a gambler whose income derives principally from

12

gambling or has been convicted of two or more gambling offenses, (4) to have

13

given false testimony for the purpose of obtaining immigration benefits; or if the

14

applicant (5) has been convicted and confined to a penal institution for an

15

aggregate period of 180 days or more, (6) has been convicted of an aggravated

16

felony, or (7) has engaged in conduct such as aiding Nazi persecution or

17

participating in genocide, torture, or extrajudicial killings. 8 U.S.C. 1101(f)(6).

18

33.

19

in circumstances limited to those codified in 8 U.S.C. 1424, including, inter alia,

20

if the applicant has advocated, is affiliated with any organization that advocates, or

21

writes or distributes information that advocates the overthrow by force or violence

22

or other unconstitutional means of the Government of the United States, the

23

duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . .

24

of the Government of the United States, or the unlawful damage, injury, or

25

destruction of property.

26

34.

27

investigation, see 8 U.S.C. 1446(a); 8 C.F.R. 335.1, which includes a full FBI

28

criminal background check, see 8 C.F.R. 335.2.

Applicants must also demonstrate good moral character for the five years

An applicant is presumed to possess the requisite good moral character for

An applicant is barred from naturalizing for national security-related reasons

Once an individual submits an application, USCIS conducts a background

10

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 11 of 35 Page ID #:11

1

35.

After completing the background investigation, USCIS schedules a

naturalization examination at which the applicant meets with a USCIS examiner

for an interview.

36.

stated that the processing of an immigration benefit application, which includes

naturalization, should be completed not later than 180 days after the initial filing

of the application. 8 U.S.C. 1571(b). USCIS must either grant or deny a

naturalization application within 120 days of the date of the examination. 8 C.F.R.

335.3.

In order to avoid inordinate processing delays and backlogs, Congress has

10

37.

If the applicant has complied with all requirements for naturalization, federal

11

regulations state that USCIS shall grant the application. 8 C.F.R. 335.3(a)

12

(emphasis added).

13

38.

14

Constitution to establish an uniform Rule of Naturalization. . . . And when it

15

establishes such uniform rule, those who come within its provisions are entitled to

16

the benefit thereof as a matter of right. . . . Schwab v. Coleman, 145 F.2d 672,

17

676 (4th Cir. 1944) (emphasis added); see also Marcantonio v. United States, 185

18

F.2d 934, 937 (4th Cir. 1950) (The opportunity having been conferred by the

19

Naturalization Act, there is a statutory right in the alien to submit his petition and

20

evidence to a court, to have that tribunal pass upon them, and, if the requisite facts

21

are established, to receive the certificate. (quoting Tutun v. United States, 270

22

U.S. 568, 578 (1926))).

23

39.

Courts have long recognized that Congress is given power by the

Once an application is granted, the applicant is sworn in as a U.S. citizen.

Refugee Adjustment of Status to Lawful Permanent Resident

24
25

40.

Federal law allows certain non-citizens to adjust their immigration status to

26

that of an LPR.

27

41.

28

not limited to, one year of residence in the United States after being granted

Several events may trigger eligibility to adjust to LPR status, including, but
11

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 12 of 35 Page ID #:12

1

asylum or refugee status. See, e.g., 8 U.S.C. 1159, 1255(a).

42.

classified as a refugee under 8 U.S.C. 1157and whose status has not been

terminatedmay apply for lawful permanent residency. See 8 U.S.C. 1159(b).

43.

U.S.C. 1182 apply, USCIS will approve the application, admit the applicant for

lawful permanent residence as of the date of the aliens arrival in the United States,

and issue proof of such status. 8 C.F.R. 209.1(e) (emphasis added); see also 8

U.S.C. 1159(a)(2).

Every individual present in the United States for at least one year who is

Unless USCIS finds that certain grounds of inadmissibility enumerated in 8

10

44.

An applicant may be found inadmissible, and therefore ineligible to become

11

a lawful permanent resident, if certain security-related grounds apply, including,

12

inter alia, the applicant has engaged in terrorist activity, is a representative or

13

member of a terrorist organization, endorses or espouses terrorist activity, or

14

incites terrorist activity. See 8 U.S.C. 1182(a)(3). USCISs definition of a

15

national security concern in CARRP is significantly broader than these security-

16

related grounds of inadmissibility set by Congress.

17

45.

18

including for adjustment of status, within 180 days. 8 U.S.C. 1571(b).

Congress has directed USCIS to process immigration benefit applications,

19

FACTUAL BACKGROUND

20

The Controlled Application Review and Resolution Program (CARRP)

21

46.

In April 2008, USCIS created CARRP, an agency-wide policy for

22

identifying, processing, and adjudicating immigration applications that raise

23

national security concerns.

24

47.

25

delayed the adjudication of many immigration applications that raised possible

26

national security concerns, in part due to backlogs created by the FBI Name

27

Check.

28

48.

Upon information and belief, prior to CARRPs enactment, USCIS simply

Congress did not enact CARRP, and USCIS did not promulgate it as a
12

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 13 of 35 Page ID #:13

1

proposed rule with the notice-and-comment procedures mandated by the APA. See

5 U.S.C. 553(b)-(c).

49.

available to the public, except in response to Freedom of Information Act

(FOIA) requests and litigation to compel responses to those requests. In fact, the

program was unknown to the public, including applicants for immigration benefits,

until it was discovered in litigation challenging an unlawful denial of naturalization

in Hamdi v. USCIS, No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal

Feb. 25, 2012), and then through the governments response to a FOIA request.

Since CARRPs inception, USCIS has not made information about CARRP

10

50.

CARRP directs USCIS officers to screen immigration applications

11

including applications for asylum, visas, lawful permanent residency, and

12

naturalizationfor national security concerns.

13

51.

14

security concern, it takes the application off a routine adjudication track and

15

without notifying the applicantplaces it on a CARRP adjudication track where it

16

is subject to procedures and criteria unique to CARRP that result in lengthy delays

17

and prohibit approvals, except in limited circumstances, regardless of an

18

applicants statutory eligibility.

If a USCIS officer determines that an application presents a national

CARRPs Definition of a National Security Concern

19
20

52.

According to the CARRP definition, a national security concern arises

21

when an individual or organization [that] has been determined to have an

22

articulable linkno matter how attenuated or unsubstantiatedto prior, current,

23

or planned involvement in, or association with, an activity, individual, or

24

organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B)

25

of the Immigration and Nationality Act. Those sections of the INA make

26

inadmissible or removable any individual who, inter alia, has engaged in terrorist

27

activity or is a member of a terrorist organization.

28

53.

For the reasons described herein, an individual need not be actually

13

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 14 of 35 Page ID #:14

1

suspected of engaging in any unlawful activity or joining any proscribed

organization to be branded a national security concern under CARRP.

54.

those ostensibly involving Known or Suspected Terrorists (KSTs), and those

ostensibly involving non-Known or Suspected Terrorists (non-KSTs).

55.

security concern, if his or her name appears in the Terrorist Screening Database

(TSDB) (also referred to as the Terrorist Watch List). USCIS, therefore, applies

CARRP to any applicant whose name appears in the TSDB.

CARRP distinguishes between two types of national security concerns:

USCIS automatically considers an applicant a KST, and thus a national

10

56.

Upon information and belief, the TSDB includes as many as one million

11

names, many of whom present no threat to the United States.

12

57.

13

known as the Watchlisting Guidance, permits non-U.S. citizens, including LPRs, to

14

be listed in the TSDB even where the government does not have reasonable

15

suspicion of involvement with terrorist activity. The Guidance permits the

16

watchlisting of non-citizens and LPRs simply for being associated with someone

17

else who has been watchlisted, even when any involvement with that persons

18

purportedly suspicious activity is unknown. The Guidance also states explicitly

19

that non-citizens and LPRs may be watchlisted based on fragmentary or

20

uncorroborated information, or information of suspected reliability. These

21

extremely loose standards significantly increase the likelihood that the TSDB

22

contains information on individuals who are neither known nor appropriately

23

suspected terrorists.

24

58.

25

maintains the TSDB, has failed to ensure that innocent individuals are not

26

watchlisted or are promptly removed from watchlists. In 2013 alone, the

27

watchlisting community nominated 468,749 individuals to the TSDB, and the TSC

28

rejected only approximately one percent of those nominations. In 2009, the

The governments recently disclosed criteria for watchlist nominations,

To make matters worse, the Terrorist Screening Center (TSC), which

14

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 15 of 35 Page ID #:15

1

Government Accountability Office found that 35 percent of the nominations to the

TSDB were outdated, and that tens of thousands of names had been placed on the

list without an adequate factual basis. The Inspector General of the Department of

Justice has criticized the Terrorist Screening Center, which maintains the TSDB,

for employing weak quality assurance mechanisms and for failing to remove

subjects from the TSDB when information no longer supports their inclusion.

Public reports also confirm that the government has nominated or retained people

on government watchlists as a result of human error.

59.

The federal governments official policy is to refuse to confirm or deny give

10

individuals inclusion in the TSDB or provide a meaningful opportunity to

11

challenge that inclusion. Nevertheless, individuals can become aware of their

12

inclusion due to air travel experiences. In particular, individuals may learn that

13

they are on the Selectee List, a subset of the TSDB, if they have the code

14

SSSS listed on their boarding passes. They may also learn of their inclusion in

15

the TSDB if U.S. federal agents regularly subject them to secondary inspection

16

when they enter the United States from abroad or when boarding a flight over U.S.

17

airspace. Such individuals are also often unable to check in for flights online or at

18

airline electronic kiosks at the airport.

19

60.

20

look for indicators of a non-Known or Suspected Terrorist (non-KST)

21

concern.

22

61.

23

statutory indicators; and (3) indicators contained in security check results.

24

62.

25

individual generally meets the definitions described in Sections 212(a)(3)(A), (B),

26

and (F), and 237(a)(4)(A) and (B) of the INA (codified at 8 U.S.C.

27

1182(a)(3)(A), (B), and (F) and 1227(a)(4)(A) and (B)), which list the security

Where the KST designation does not apply, CARRP instructs officers to

These indicators fall into three categories: (1) statutory indicators; (2) nonStatutory indicators of a national security concern arise when an

28
15

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 16 of 35 Page ID #:16

1

and terrorism grounds of inadmissibility and removability.1 However, CARRP

expressly defines statutory indicators of a national security concern more

broadly than the statute, stating the facts of the case do not need to satisfy the

legal standard used in determining admissibility or removability under those

provisions of the INA to give rise to a non-KST national security concern.

63.

of charitable donations to organizations later designated as financiers of terrorism

by the U.S. Treasury Department and to construe such donations as evidence of a

national security concern, even if an individual had made such donations without

For example, CARRP specifically directs USCIS officers to look at evidence

10

any knowledge or any reasonable way of knowing that the organization was

11

allegedly engaged in proscribed activity. Such conduct would not make an

12

applicant inadmissible for a visa or lawful permanent resident status under the

13

statute, see INA 212(a)(3)(B), 8 U.S.C. 1182(a)(3)(B), nor does it have any

14

bearing on a naturalization application.

15

64.

16

through or residence in areas of known terrorist activity; large scale transfer or

17

receipt of funds; a persons employment, training, or government affiliations; the

18

identities of a persons family members or close associates, such as a roommate,

19

co-worker, employee, owner, partner, affiliate, or friend; or simply other

Non-statutory indicators of a national security concern include travel

20
21

22

applicant from obtaining lawful permanent resident status or a visa. However, they

23

do not bar an applicant who is already a legal permanent resident from

24

naturalization, which is governed by the statutory provisions specific to

25

naturalization. See 8 U.S.C. 1421-1458. The security and terrorism provisions

26

may also render a non-citizen removable, see 8 U.S.C. 1227(a)(4), but the

27

government has not charged any of the plaintiffs with removability under these

28

provisions.

These security and terrorism grounds of inadmissibility, if applicable, may bar an

16

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 17 of 35 Page ID #:17

1

suspicious activities.

65.

security concern in instances where, for example, the FBI Name Checkone of

many security checks utilized by USCISproduces a positive hit on an applicants

name and the applicants name is associated with a national security related

investigatory file. Upon information and belief, this indicator leads USCIS to label

applicants national security concerns solely because their names appear in a law

enforcement or intelligence file, even if they were never the subject of an

investigation. For example, an applicants name could appear in a law

Finally, security check results are considered indicators of a national

10

enforcement file in connection with a national security investigation because he or

11

she once gave a voluntary interview to an FBI agent, he or she attended a mosque

12

that was the subject of FBI surveillance, or he or she knew or was associated with

13

someone under investigation.

14

66.

15

concerns based on vague and overbroad criteria that often turn on lawful activity,

16

national origin, and innocuous associations. These criteria are untethered from the

17

statutory criteria that determine whether or not a person is eligible for the

18

immigration status they seek, and are so general that they necessarily ensnare

19

individuals who pose no threat to the security of the United States.

Upon information and belief, CARRP labels applicants national security

Delay and Denial

20
21

67.

Once a USCIS officer identifies a CARRP-defined national security

22

concern, the application is subjected to CARRPs rules and procedures that guide

23

officers to deny such applications or, if an officer cannot find a basis to deny the

24

application, to delay adjudication as long as possible.

Deconfliction

25
26

68.

One such procedure is called deconfliction, which requires USCIS to

27

coordinate withand, upon information and belief, subordinate its authority to

28

the law enforcement agency, often the FBI, that possesses information giving rise
17

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 18 of 35 Page ID #:18

1

to the supposed national security concern.

69.

instruct USCIS to ask certain questions in an interview or to issue a Request for

Evidence (RFE); to comment on a proposed decision on the benefit; and to

request that an application be denied, granted, or held in abeyance for an indefinite

period of time.

70.

or intelligence agencies to directly affect the adjudication of a requested

immigration benefit, but also results in independent interrogations of the

During deconfliction, the relevant law enforcement agency has authority to

Upon information and belief, deconfliction not only allows law enforcement

10

immigration applicantor the applicants friends and familyby agencies such as

11

the FBI.

12

71.

13

immigration applications because the FBI requests or recommends the denial, not

14

because the person was statutorily ineligible for the benefit. The FBI often

15

requests that USCIS hold or deny an application not because the applicant poses a

16

threat, but because it seeks to use the pending immigration application to coerce

17

the applicant to act as an informant or otherwise provide information.

Upon information and belief, USCIS often makes decisions to deny

Eligibility Assessment

18
19

72.

In addition to deconfliction, once officers identify an applicant as a

20

national security concern, CARRP directs officers to perform an eligibility

21

assessment to determine whether the applicant is eligible for the benefit sought.

22

73.

23

for any possible reason to deny an application so that valuable time and resources

24

are not unnecessarily expended to investigate the possible national security

25

concern. Where no legitimate reason supports denial of an application subjected

26

to CARRP, USCIS officers often invent false or pretextual reasons to deny the

27

application.

28

///

Upon information and belief, at this stage, CARRP instructs officers to look

18

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 19 of 35 Page ID #:19

Internal Vetting

1
2

74.

Upon information and belief, if, after performing the eligibility assessment,

an officer cannot find a reason to deny an application, CARRP instructs officers to

first internally vet the national security concern using information available in

DHS systems and databases, open source information, review of the applicants

file, RFEs, and interviews or site visits.

75.

officers are instructed to again conduct deconfliction to determine the position of

any interested law enforcement agency.

After conducting the eligibility assessment and internal vetting, USCIS

External Vetting

10
11

76.

12

to deny the benefit, the application then proceeds to external vetting.

13

77.

14

of the national security concern with the law enforcement or intelligence agency

15

that possesses the information that created the concern and obtain additional

16

information from that agency about the concern and its relevance to the individual.

17

78.

18

abeyance for periods of 180 days to enable law enforcement agents and USCIS

19

officers to investigate the national security concern. The Field Office Director

20

may extend the abeyance periods so long as the investigation remains open.

21

79.

22

USCIS may hold a case in abeyance, even though the INA requires USCIS to

23

adjudicate a naturalization application within 120 days of examination, 8 C.F.R.

24

335.3, and Congress has made clear its intent that USCIS adjudicate immigration

25

applications, including for naturalization and lawful permanent residence, within

26

180 days of filing the application. 8 U.S.C. 1571(b).

During external vetting, USCIS instructs officers to confirm the existence

CARRP policy purports to authorize USCIS officers to hold applications in

Upon information and belief, CARRP provides no outer limit on how long

Adjudication

27
28

If the national security concern remains and the officer cannot find a basis

80.

When USCIS considers an applicant to be a KST national security

19

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 20 of 35 Page ID #:20

1

concern, CARRP forbids USCIS field officers from granting the requested benefit

even if the applicant satisfies all statutory and regulatory criteria.

81.

concern, CARRP forbids USCIS field officers from granting the requested benefit

in the absence of supervisory approval and concurrence from a senior level USCIS

official.

82.

decision to brand naturalization applicant Tarek Hamdi as a national security

concern affected whether he was eligible for naturalization, a USCIS witness

When USCIS considers an applicant to be a non-KST national security

In Hamdi v. USCIS, 2012 WL 632397, when asked whether USCISs

10

testified at deposition that it doesnt make him statutorily ineligible, but because

11

he is ahe still has a national security concern, it affects whether or not we can

12

approve him. The witness testified that, under CARRP, until [the] national

13

security concern [is] resolved, he wont get approved.

14

83.

15

applications subject to CARRP when it cannot find a reason to deny the

16

application. When an applicant files a mandamus action to compel USCIS to

17

finally adjudicate his or her pending application, it often has the effect of forcing

18

USCIS to deny a statutorily-eligible application because CARRP prevents agency

19

field officers from granting an application involving a national security concern.

20

84.

21

application processing and adjudication: one for those applications subject to

22

CARRP and one for all other applications. CARRP rules and procedures create

23

substantive eligibility criteria that exclude applicants from immigration benefits to

24

which they are entitled by law.

25

85.

26

or she has been labeled a national security concern, nor is the applicant ever

27

provided with an opportunity to respond to and contest the classification.

28

86.

Upon information and belief, USCIS often delays adjudication of

CARRP effectively creates two substantive regimes for immigration

At no point during the CARRP process is the applicant made aware that he

Upon information and belief, CARRP results in extraordinary processing

20

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 21 of 35 Page ID #:21

1

and adjudication delays, often lasting many years, and baseless denials of

statutorily-eligible immigration applications.

Facts Specific To Each Plaintiff

Ahmad Shawky Muhanna and Reem Yousef Muhanna

87.

Plaintiffs Ahmad Shawky Muhanna and Reem Yousef Muhanna are

nationals of Palestine and LPRs of the United States. Mr. Muhanna is fifty-four

years old and Ms. Muhanna is forty-six years old. They are residents of

Richardson, Texas.

88.

Ahmad Muhanna moved to the United States in 1985 to study at the

10

University of Wisconsin-Madison. He earned a masters degree there, and then a

11

doctorate degree from North Carolina State University (NCSU) in civil

12

engineering.

13

89.

14

Carolina.

15

90.

16

bachelors degree in electrical engineering, and, in 1994, she earned a masters

17

degree in from NCSU in the same field.

18

91.

19

a job there. They have lived in Dallas suburbs ever since.

20

92.

The Muhannas each became LPRs in 2002.

21

93.

The Muhannas both applied for naturalization in May 2007.

22

94.

The Muhannas resided continuously in the United States for at least five

23

years preceding the date of filing their applications for naturalization, and have

24

resided continuously within the United States from the date of filing their

25

applications until the present.

26

95.

Neither Mr. Muhanna nor Ms. Muhanna ever been convicted of any crime.

27

96.

Mr. and Ms. Muhanna are Muslim and active participants in their religious

28

community. Every year they donate roughly three percent of their annual income

In December 1988, Mr. Muhanna married Reem Yousef in Raleigh, North

In 1991, Ms. Muhanna graduated summa cum laude from NCSU with a

In December 1995, the couple moved to Texas after Ms. Muhanna accepted

21

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 22 of 35 Page ID #:22

1

to humanitarian causes in accordance with the teachings of Islam.

97.

began experiencing problems when they tried to travel, both domestically and

internationally. Mr. and Ms. Muhannas boarding passes are routinely marked

with the code SSSS, indicating that they are on the Selectee List , a subset of the

TSDB.

98.

has not been able to check in for flights online. In addition, on numerous

occasions when Mr. Muhanna was overseas, airline officials would not check him

10

in for his flight until an airline official communicated with officials in Washington,

11

D.C. and those officials cleared him for travel. On one occasion, U.S. government

12

officials prevented Mr. and Ms. Muhanna from boarding a flight from Canada to

13

the U.S., stating that they needed to check with officials in Washington, D.C.

14

before they could allow him to board the flight. After making them wait for many

15

hours and miss their flight, the officials finally permitted them to board a new

16

flight and return home.

17

99.

18

subjected to CARRP in 2008, after USCIS adopted the policy.

19

100. Beginning in August 2009years after Mr. and Ms. Muhanna filed their

20

N400s and after USCIS canceled two appointments for their interviews on their

21

naturalization applicationsFBI agents made approximately six separate visits to

22

the Muhannas home and to Mr. Muhannas work place.

23

101. On each occasion, the Muhannas instructed the agents to speak with their

24

attorney, who in turn requested that the agents submit written questions for the

25

Muhannas to answer. The FBI agents never provided the questions.

26

102. Upon information and belief, the visits were the product of the CARRPs

27

deconfliction process.

28

103. In July 2011, Mr. and Ms. Muhanna filed writs of mandamus in federal court

Some time before they filed their naturalization applications, the Muhannas

The Muhannas regularly have trouble checking in for flights. Mr. Muhanna

Upon information and belief, Mr. and Ms. Muhannas applications were

22

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 23 of 35 Page ID #:23

1

to compel USCIS to schedule interviews on their naturalization applications. As a

result, USCIS finally interviewed Mr. and Ms. Muhanna in October 2011.

104. Mr. and Ms. Muhanna testified truthfully and to the best of their ability in

their interviews, and both volunteered information about their past contacts with

members of the Holy Land Foundation (HLF), which was an Islamic charity.

105. The Muhannas passed the U.S. civics tests during their respective

naturalization examinations, but the USCIS examining officers told them that

decisions could not be made at that time and instead requested additional

information, such as copies of old passports and tax documents.

10

106. On February 4, 2012, USCIS denied the Muhannas naturalization

11

applications, alleging that they lacked the requisite good moral character for

12

testifying falsely about their alleged affiliation with the HLF, even though they

13

both voluntarily disclosed the totality of their interactions with the organization.

14

107. In March 2012, the Muhannas timely filed administrative appeals contesting

15

the USCISs denials.

16

108. In September 2012, USCIS conducted interviews of Mr. and Ms. Muhanna

17

on their administrative appeals. At the conclusion of these interviews, the

18

examining USCIS officers said that a decision would be made within sixty days.

19

109. To date, USCIS has not made a determination on the Muhannas

20

applications.

21

110. Upon information and belief, Mr. and Ms. Muhanna are on the Selectee List

22

and therefore are included in the TSDB, as indicated by the SSSS code that

23

appears on their boarding passes when they travel and by their consistent travel

24

difficulties. USCIS, therefore, considers them KST national security concerns.

25

111. Upon information and belief, USCIS also may consider them non-KST

26

national security concerns because they have travel[ed] through or reside[d] in

27

areas of known terrorist activitymainly Palestineand because of their

28

donations to certain Islamic charities.

23

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 24 of 35 Page ID #:24

1

112. Upon information and belief, Mr. and Ms. Muhannas applications are

subject to CARRP, which caused the delay in the adjudication of their applications,

the ultimate denial of their applications, and the current delay in adjudication of

their appeals, despite the fact that they are statutorily-entitled to naturalize.

Abrahim Mosavi

113. Plaintiff Abrahim Mosavi is a citizen of Iran and an LPR of the United

States. He is sixty years old, and a resident of Beverly Hills, California.

114. Mr. Mosavi came to the United States as a student in the late 1970s and has

resided in the United States ever since.

10

115. Mr. Mosavi became an LPR in 1987.

11

116. On November 20, 2000, Mr. Mosavi applied for naturalization.

12

117. He resided continuously in the United States for at least five years

13

immediately preceding the date of filing his application for naturalization, and he

14

has resided continuously within the United States from that date until the present.

15

118. Mr. Mosavi has never been convicted of a crime.

16

119. Since 2001, Mr. Mosavi has traveled on occasion to Iran to visit family.

17

Since then, every time Mr. Mosavi returns to the United States, federal government

18

agents, after reviewing his personal information at the immigration checkpoint,

19

escort him to secondary inspection, during which they search and question him.

20

Upon information and belief, federal government officials always subject him to

21

secondary inspection because he is in the TSDB.

22

120. On June 18, 2001, Mr. Mosavi attended his naturalization examination. A

23

USCIS officer told him he passed the examination, but that his case would be

24

continued for supervisory review.

25

121. Nearly ten years passed before USCIS adjudicated his application. During

26

this time, Mr. Mosavi inquired with USCIS on the status of his application on

27

numerous occasions through letters and Infopass, a service that allows an applicant

28

to schedule an appointment with a USCIS officer.

24

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 25 of 35 Page ID #:25

1

122. Upon information and belief, prior to 2008, USCISs adjudication of Mr.

Mosavis application was delayed, at least in part, due to the FBI Name Check

backlog in processing immigration applications. Once CARRP was adopted in

2008, Mr. Mosavis application became subject to CARRP.

123. On February 11, 2010, USCIS denied his application on grounds that he

failed to submit information requested by the agency.

124. Mr. Mosavi contested this determination and, on March 11, 2010, he filed an

administrative appeal with an accompanying letter-brief, which demonstrated that

he had provided all of the requested information.

10

125. On July 16, 2010, Mr. Mosavi attended a hearing on his administrative

11

appeal and provided even more information after additional requests by USCIS.

12

126. Two years later, on August 24, 2012, a USCIS decision denying his

13

administrative appeal asserted that USCIS had denied his naturalization application

14

because during the statutory period, [he was] continuously absent from the United

15

States from November 15, 2008 through June 6, 2010which was not only

16

impossible considering that USCIS issued its decision on his naturalization

17

application on February 11, 2010, but was also factually erroneous because USCIS

18

had not denied his application on those grounds.

19

127. On September 26, 2012, Mr. Mosavi moved to reopen and reconsider the

20

denial of his appeal because of these obvious factual errors. USCIS granted his

21

motion to reopen in October 2012 and agreed to reconsider its decision.

22

128. On September 23, 2013, Mr. Mosavi appeared for a second hearing on his

23

reopened administrative appeal. In accordance with USCISs request, he again

24

submitted extensive additional information.

25

129. At the conclusion of the September 2013 hearing, the USCIS officer told

26

Mr. Mosavi that he would receive a decision within thirty days.

27

130. At present, Mr. Mosavi is still waiting for a decision on his administrative

28

appeal.
25

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 26 of 35 Page ID #:26

1

131. Upon information and belief, Mr. Mosavi is in the TSDB, as indicated by the

fact that U.S. officials always subject him to secondary inspection. USCIS,

therefore, considers him a KST national security concern.

132. Upon information and belief, USCIS considers him a non-KST national

security concern because of his frequent travel to Iran.

133. Upon information and belief, Mr. Mosavis naturalization application is

subject to CARRP, which caused undue delay in the adjudication of his

application, the ultimate denial of his application, and the current delay in

adjudication of his appeal, despite his statutory entitlement to naturalize.

Neda Behmanesh

10
11

134. Plaintiff Neda Behmanesh is a citizen of Iran and an LPR of the United

12

States. She is forty-five years old and a resident of Beverly Hills, California.

13

135. Ms. Behmanesh came to the United States on a tourist visa in 1990 and has

14

resided in the United States ever since.

15

136. Ms. Behmanesh married a United States citizen on October 17, 2003. Based

16

on that marriage, USCIS granted her LPR status on February 8, 2005.

17

137. Ms. Behmanesh filed her naturalization application on December 8, 2011.

18

138. Ms. Behmanesh has not traveled outside the United States since her arrival

19

in 1990. She has resided continuously in the United States for at least five years

20

immediately preceding the date of filing her application for naturalization, and has

21

resided continuously within the United States from the date of filing her

22

application until the present.

23

139. Ms. Behmanesh has never been convicted of a crime.

24

140. On April 16, 2012, Ms. Behmanesh attended her naturalization examination.

25

She received a notice indicating that she passed the examination, but that a

26

decision could not be made on her application at that time.

27

141. On September 4, 2012, USCIS denied her application, asserting that Ms.

28

Behmanesh failed to establish she was an LPR because the marriage on which her
26

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 27 of 35 Page ID #:27

1

LPR status was based was fraudulent. USCIS claimed the FBI had records

indicating Ms. Behmanesh was dating and living with another man during her

marriage. That claim is demonstrably false.

142. Ms. Behmanesh was involved in a relationship with this other man prior to

her marriage.

143. During this relationship, the man became the subject of an FBI investigation

on suspicion that he tried to cash counterfeit checks.

144. Ms. Behmanesh became aware of this investigation around 2002, when FBI

agents approached her for an interview about him. He was eventually arrested,

10

convicted, and sentenced to prison for his federal crimes.

11

145. Contrary to the assertions of USCIS, at the time Ms. Behmanesh married in

12

October 2003, this other man was incarcerated, not living with her.

13

146. Ms. Behmanesh contested the denial of her naturalization application by

14

filing an administrative appeal on October 2, 2012. She submitted evidence

15

demonstrating that her former boyfriend was in custody at the time she married her

16

husband, that she resided with her husband after their marriage, and that her

17

marriage was indeed bona fide. This supporting evidence included a notarized

18

affidavit from her (now former) husband.

19

147. Although USCIS accused Ms. Behmanesh of fraudulently obtaining her

20

lawful permanent residency, the agency never initiated removal proceedings.

21

148. On August 28, 2013, Ms. Behmanesh attended a hearing on her

22

administrative appeal. At that hearing, a USCIS agent told her that USCIS had set

23

aside its previous denial and had reopened her naturalization application.

24

149. At present, she is still waiting for a decision on her reopened application.

25

150. Upon information and belief, USCIS considers Ms. Behmanesh a non-KST

26

national security concern because the FBI Name Check revealed that she was a

27

subject of the investigation of her former boyfriend.

28

151. As a result, Ms. Behmaneshs application is subject to CARRP, which

27

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 28 of 35 Page ID #:28

1

caused the denial of her application, and the current delay in adjudication of her

appeal, despite her statutory entitlement to naturalize.

Ahmed Osman Hassan

152. Plaintiff Ahmed Osman Hassan is a citizen of Somalia and a refugee

residing lawfully in the United States. He is thirty-six years old, and a resident of

Rochester, Minnesota.

153. On February 25, 2004, after spending fourteen years in a refugee camp in

Kenya, Mr. Hassan moved to the United States and was admitted as a refugee. He

has lived in the United States ever since then.

10

154. The United Nations High Commissioner for Refugees and the United States

11

conferred refugee status on Mr. Hassan based on his membership in the Tuni clan,

12

a minority clan that suffers persecution in Somalia at the hands of the dominant

13

Hawiye tribe.

14

155. Mr. Hassan is Muslim.

15

156. On or about April 18, 2006, Mr. Hassan submitted an application for

16

adjustment of status to LPR, along with supporting documentation.

17

157. Mr. Hassan has never been convicted of a crime.

18

158. Upon information and belief, Mr. Hassans application became subject to

19

CARRP in 2008, after USCIS adopted the policy.

20

159. According to Mr. Hassans immigration Alien file, on July 7, 2008, there

21

was a positive response to his name in the FBI Name Check. As of August 20,

22

2009, that positive response reflected that USCIS considers him a KST national

23

security concern.

24

160. According to Mr. Hassans immigration Alien file, USCIS subjected his

25

application to CARRP, and conducted deconfliction in August 2009.

26

161. In 2009, an FBI agent approached Mr. Hassan at his home in Las Vegas,

27

Nevada. The agent told him that she knew he was waiting for USCIS to make a

28

decision on his adjustment of status application and that she could help him if he
28

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 29 of 35 Page ID #:29

1

agreed to work as an informant for the FBI in the Las Vegas Muslim community.

She asked Mr. Hassan to go to mosques in the Las Vegas area and report back to

the FBI about people who attended the mosques and their activities.

162. Mr. Hassan declined to become an informant at area mosques for the FBI.

On a number of occasions, however, Mr. Hassan agreed to talk with the FBI and to

answer their questions.

163. In or around December 2009, the FBI told Mr. Hassan that he was not being

cooperative enough, and then communication between the FBI and Mr. Hassan

ceased.

10

164. Upon information and belief, the FBI visits, the FBIs offer to assist him

11

with his immigration application, and the ultimate actions by USCIS in his

12

immigration case are the products of CARRPs deconfliction process. The FBI

13

influenced USCIS to deny Mr. Hassans adjustment application and revoke his

14

refugee status in retaliation for his refusal to become an informant.

15

165. According to Mr. Hassans immigration file, on September 8, 2009, March

16

16, 2010, and May 10, 2010, the Joint Terrorism Task Force (JTTF)a

17

partnership of law enforcement agencies led by the FBIrequested information

18

relating to Mr. Hassans adjustment of status application from USCIS.

19

166. On January 18, 2011, the USCIS Las Vegas Field Office began CARRP

20

adjudication.

21

167. On January 31, 2011, according to Mr. Hassans immigration file, USCIS

22

issued a Notice of Intent to Terminate Mr. Hassans refugee status. Mr. Hassan

23

never received this notice.

24

168. On March 9, 2011, USCIS issued a Notice of Termination of Refugee Status

25

to Mr. Hassan on the grounds that he may have misrepresented himself as a

26

member of the Tuni clan. Mr. Hassan informed USCIS that he never received any

27

notification of the agencys intent to terminate his status and demanded an

28

opportunity to respond pursuant to 8 C.F.R. 207.9.

29

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 30 of 35 Page ID #:30

1

169. On May 10, 2012, USCIS issued a Notice of Intent to Terminate Mr.

Hassans refugee status, and again alleged that he may have misrepresented

himself as a member of the Tuni clan. The Notice did not provide any evidence or

description to support its allegation. Mr. Hassan received this notice and

responded by submitting affidavits from several witnesses attesting to his

membership in the Tuni clan.

170. On August 3, 2012, USCIS issued a second Notice of Termination of Mr.

Hassans refugee status, again on the grounds that he may have misrepresented

himself as a member of the Tuni clan. USCIS neither provided nor described any

10

evidence to support its conclusion.

11

171. On August 7, 2012, four days after terminating his refugee status and over

12

six years after Mr. Hassan filed his application, USCIS denied his adjustment of

13

status application on the ground that he was not a refugee and was therefore

14

ineligible for LPR status. Despite USCISs mandatory obligation to inform Mr.

15

Hassan that he could renew his request for permanent residence in removal

16

proceedings, see 8 C.F.R. 209.1(e), the denial letter instead stated that Mr.

17

Hassan was required to leave the United States within thirty days or be subject to

18

removal.

19

172. In an effort to comply with the letter, Mr. Hassan attempted to leave the

20

United States and to enter Canada through a land border crossing on or around

21

August 23, 2012.

22

173. At the Canadian border, Mr. Hassan requested asylum. However, the

23

Canadian authorities returned him to the United States, and DHS authorities

24

initiated removal proceedings against him.

25

174. According to a DHS record in Mr. Hassans immigration file, DHS officials

26

contacted the FBI, including an FBI case agent in Las Vegas, about Mr. Hassan

27

during his detention on the border. The record states the FBI requested that

28

agents ask [Mr. Hassan] for a written statement renouncing all immigration and
30

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 31 of 35 Page ID #:31

1

refugee benefits in the United States. HASSAN declined to cooperate.

175. On August 21, 2013, an immigration judge terminated removal proceedings

against Mr. Hassan, finding that Mr. Hassan was still a refugee because USCIS had

improperly terminated his refugee status.

176. On November 18, 2013, Mr. Hassan submitted a new application for

adjustment of status to LPR. To date, that application remains pending.

177. Upon information and belief, USCISs delay in adjudicating Mr. Hassans

first request for adjustment of status, its attempts to terminate his refugee status

and deny that application, and its delayed adjudication of his current application,

10

even though he is statutorily-eligible to adjust, are due to CARRP.

11

FIRST CLAIM FOR RELIEF

12

Immigration and Nationality Act and Implementing Regulations

13

(Plaintiffs Ahmad Muhanna, Reem Muhanna,

14

Abrahim Mosavi, and Neda Behmanesh)

15

178. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully

16

set forth herein.

17

179. To secure naturalization, an applicant must satisfy certain statutorily-

18

enumerated criteria.

19

180. By its terms, CARRP creates additional, non-statutory, substantive criteria

20

that must be met prior to a grant of a naturalization application.

21

181. Accordingly, CARRP violates 8 U.S.C. 1427, 8 C.F.R. 316.2, and 8

22

C.F.R. 335.3, as those provisions set forth the exclusive applicable statutory and

23

regulatory criteria for a grant of naturalization.

24

182. Because of this violation and because CARRPs additional, non-statutory,

25

substantive criteria have been applied to Plaintiffs, Plaintiffs have suffered and

26

continue to suffer injury in the form of unreasonable delays and unwarranted

27

denials of their applications for naturalization.

28

///
31

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 32 of 35 Page ID #:32

1

SECOND CLAIM FOR RELIEF

Immigration and Nationality Act and Implementing Regulations

(Plaintiff Ahmed Osman Hassan)

183. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully

set forth herein.

184. To secure adjustment of status from refugee to LPR, an applicant must

satisfy certain statutorily-enumerated criteria.

185. By its terms, CARRP creates additional, non-statutory, substantive criteria

that must be met prior to a grant of adjustment of status to LPR.

10

186. Accordingly, CARRP violates 8 U.S.C. 1159 and 8 C.F.R. 209.1, as

11

those provisions set forth the exclusive applicable statutory and regulatory criteria

12

for refugees to adjust their status.

13

187. Because of this violation and because CARRPs additional, non-statutory,

14

substantive criteria have been applied to Plaintiff Hassan, Plaintiff Hassan has

15

suffered and continues to suffer injury in the form of unreasonable delays and

16

unwarranted denials of his application for LPR status.

17

THIRD CLAIM FOR RELIEF

18

Uniform Rule of Naturalization

19

(Plaintiffs Ahmad Muhanna, Reem Muhanna,

20

Abrahim Mosavi, and Neda Behmanesh)

21

188. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully

22

set forth herein.

23

189. Congress has the sole power to establish criteria for naturalization, and any

24

additional requirements, not enacted by Congress, are ultra vires.

25

190. By its terms, CARRP creates additional, non-statutory, substantive criteria

26

that must be met prior to a grant of a naturalization application.

27

191. Accordingly, CARRP violates Article I, Section 8, Clause 4 of the United

28

States Constitution.
32

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 33 of 35 Page ID #:33

1

192. Because of this violation and because CARRPs additional, non-statutory,

substantive criteria have been applied to Plaintiffs, all Plaintiffs (except for

Plaintiff Hassan) have suffered and continue to suffer injury in the form of

unreasonable delays and unwarranted denials of their naturalization applications.

FOURTH CLAIM FOR RELIEF

Administrative Procedure Act (5 U.S.C. 706)

(All Plaintiffs)

193. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully

set forth herein.

10

194. CARRP constitutes final agency action that is arbitrary and capricious

11

because it neither focuses on nor relates to a [non-citizens] fitness to obtain the

12

immigration benefits subject to its terms. Judulang v. Holder, 132 S. Ct. 476, 485

13

(2011).

14

195. CARRP is also not in accordance with law, is contrary to constitutional

15

rights, and is in excess of statutory authority because it violates the INA and

16

exceeds USCISs statutory authority to implement (not create) the immigration

17

laws, as alleged herein.

18

196. As a result of these violations, Plaintiffs have suffered and continue to suffer

19

injury in the form of unreasonable delays and unwarranted denials of their

20

immigration applications.

21

FIFTH CLAIM FOR RELIEF

22

Administrative Procedure Act (Notice and Comment)

23

(All Plaintiffs)

24

197. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully

25

set forth herein.

26

198. The APA, 5 U.S.C. 553, requires administrative agencies to provide a

27

notice-and-comment period prior to implementing a substantive rule.

28

199. CARRP constitutes a substantive agency rule within the meaning of 5

33

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 34 of 35 Page ID #:34

1

U.S.C. 551(4).

200. Defendants failed to provide a notice-and-comment period prior to the

adoption of CARRP.

201. Because CARRP is a substantive rule promulgated without the notice-and-

comment period, it violates 5 U.S.C. 553 and is therefore invalid.

202. As a result of these violations, Plaintiffs have suffered and continue to suffer

injury in the form of unreasonable delays and unwarranted denials of their

immigration applications.

SIXTH CLAIM FOR RELIEF

10

Fifth Amendment (Procedural Due Process)

11

(All Plaintiffs)

12

203. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully

13

set forth herein.

14

204. Plaintiffs compliance with the statutory and regulatory requirements

15

established in 8 U.S.C. 1427 and 8 C.F.R. 316.2 (for naturalization applicants),

16

and in 8 U.S.C. 1159 and 8 C.F.R. 335.3 (for adjustment of status applicants),

17

vests in them a constitutionally protected property and liberty interest.

18

205. This constitutionally-protected property or liberty interest triggers

19

procedural due process protection.

20

206. Defendants failure to give Plaintiffs notice of their classification under

21

CARRP, a meaningful explanation of the reason for such classification, and any

22

process by which Plaintiffs can challenge their classification, violates the Due

23

Process Clause of the Fifth Amendment to the United States Constitution.

24

207. Because of this violation, Plaintiffs have suffered and continue to suffer

25

injury in the form of unreasonable delays and unwarranted denials of their

26

immigration applications.

27
28
34

Case 2:14-cv-05995-PSG-FFM Document 1 Filed 07/31/14 Page 35 of 35 Page ID #:35

1

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court grant the

3
4

following relief:
1.

Enter a judgment declaring that (a) CARRP violates the INA

and its implementing regulations; Article 1, Section 8, Clause 4 of the

United States Constitution; the Fifth Amendment to the United States

Constitution; and the APA; and (b) Defendants violated the APA by

adopting CARRP without promulgating a rule and following the process for

notice and comment by the public;

10

2.

Enjoin Defendants, their subordinates, agents, employees, and

11

all others acting in concert with them from applying CARRP to the

12

processing and adjudication of Plaintiffs immigration benefit applications;

13
14

3.

Order Defendants to rescind CARRP because they failed to

follow the process for notice and comment by the public;

15

4.

Award Plaintiffs reasonable attorneys fees and costs; and

16

5.

Grant any other relief that this Court may deem fit and proper.

17
18
19
20
21

Dated: July 31, 2014

Respectfully submitted,
By:

/s/ Jennifer L. Pasquarella

JENNIFER L. PASQUARELLA
ACLU Foundation of Southern
California

22
23
24
25
26
27
28
35

NEWS

The Secret Government Rulebook For

Labeling You a Terrorist
By Jeremy Scahill and Ryan Devereaux

23 Jul 2014, 2:45 PM EDT

The Obama administration has quietly approved a substantial expansion of the terrorist
watchlist system, authorizing a secret process that requires neither concrete facts nor
irrefutable evidence to designate an American or foreigner as a terrorist, according to a key
government document obtained by The Intercept.
The March 2013 Watchlisting Guidance, a 166-page document issued last year by the
National Counterterrorism Center, spells out the governments secret rules for putting
individuals on its main terrorist database, as well as the no fly list and the selectee list, which
triggers enhanced screening at airports and border crossings. The new guidelines allow
individuals to be designated as representatives of terror organizations without any evidence
they are actually connected to such organizations, and it gives a single White House official
the unilateral authority to place entire categories of people the government is tracking onto
the no fly and selectee lists. It broadens the authority of government officials to nominate
people to the watchlists based on what is vaguely described as fragmentary information. It
also allows for dead people to be watchlisted.

Over the years, the Obama and Bush Administrations have fiercely resisted disclosing the
criteria for placing names on the databasesthough the guidelines are officially labeled as
unclassified. In May, Attorney General Eric Holder even invoked the state secrets privilege to
prevent watchlisting guidelines from being disclosed in litigation launched by an American
who was on the no fly list. In an affidavit, Holder called them a clear roadmap to the
governments terrorist-tracking apparatus, adding: The Watchlisting Guidance, although
unclassified, contains national security information that, if disclosed could cause significant
harm to national security.

The rulebook, which The Intercept is publishing in full, was developed behind closed doors by
representatives of the nations intelligence, military, and law-enforcement establishment,
including the Pentagon, CIA, NSA, and FBI. Emblazoned with the crests of 19 agencies, it offers
the most complete and revealing look into the secret history of the governments terror list
policies to date. It reveals a confounding and convoluted system filled with exceptions to its
own rules, and it relies on the elastic concept of reasonable suspicion as a standard for

determining whether someone is a possible threat. Because the government tracks suspected
terrorists as well as known terrorists, individuals can be watchlisted if they are suspected of
being a suspected terrorist, or if they are suspected of associating with people who are
suspected of terrorism activity.
Instead of a watchlist limited to actual, known terrorists, the government has built a vast
system based on the unproven and flawed premise that it can predict if a person will commit a
terrorist act in the future, says Hina Shamsi, the head of the ACLUs National Security Project.
On that dangerous theory, the government is secretly blacklisting people as suspected
terrorists and giving them the impossible task of proving themselves innocent of a threat they
havent carried out. Shamsi, who reviewed the document, added, These criteria should never
have been kept secret.
The documents definition of terrorist activity includes actions that fall far short of bombing
or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the
guidelines also define destruction of government property and damaging computers used by
financial institutions as activities meriting placement on a list. They also define as terrorism
any act that is dangerous to property and intended to influence government policy through
intimidation.
This combinationa broad definition of what constitutes terrorism and a low threshold for
designating someone a terroristopens the way to ensnaring innocent people in secret
government dragnets. It can also be counterproductive. When resources are devoted to tracking
people who are not genuine risks to national security, the actual threats get fewer resources
and might go unnoticed.
If reasonable suspicion is the only standard you need to label somebody, then its a slippery
slope were sliding down here, because then you can label anybody anything, says David
Gomez, a former senior FBI special agent with experience running high-profile terrorism
investigations. Because you appear on a telephone list of somebody doesnt make you a
terrorist. Thats the kind of information that gets put in there.
The fallout is personal too. There are severe consequences for people unfairly labeled a
terrorist by the U.S. government, which shares its watchlist data with local law enforcement,
foreign governments, and private entities. Once the U.S. government secretly labels you a
terrorist or terrorist suspect, other institutions tend to treat you as one. It can become difficult
to get a job (or simply to stay out of jail). It can become burdensomeor impossibleto travel.
And routine encounters with law enforcement can turn into ordeals.

A chart from the March 2013 Watchlisting Guidance

In 2012 Tim Healy, the former director of the FBIs Terrorist Screening Center, described to CBS
News how watchlists are used by police officers. So if you are speeding, you get pulled over,
theyll query that name, he said. And if they are encountering a known or suspected terrorist,
it will pop up and say call the Terrorist Screening Center. So now the officer on the street
knows he may be dealing with a known or suspected terrorist. Of course, the problem is that
the known or suspected terrorist might just be an ordinary citizen who should not be treated
as a menace to public safety.
Until 2001, the government did not prioritize building a watchlist system. On 9/11, the
governments list of people barred from flying included just 16 names. Today, the no fly list has
swelled to tens of thousands of known or suspected terrorists (the guidelines refer to them as
KSTs). The selectee list subjects people to extra scrutiny and questioning at airports and border
crossings. The government has created several other databases, too. The largest is the Terrorist
Identities Datamart Environment (TIDE), which gathers terrorism information from sensitive
military and intelligence sources around the world. Because it contains classified information

that cannot be widely distributed, there is yet another list, the Terrorist Screening Database,
or TSDB, which has been stripped of TIDEs classified data so that it can be shared. When
government officials refer to the watchlist, they are typically referring to the TSDB. (TIDE is
the responsibility of the National Counterterrorism Center; the TSDB is managed by the
Terrorist Screening Center at the FBI.)
In a statement, a spokesman for the National Counterterrorism Center told The Intercept that
the watchlisting system is an important part of our layered defense to protect the United
States against future terrorist attacks and that watchlisting continues to mature to meet an
evolving, diffuse threat. He added that U.S. citizens are afforded extra protections to guard
against improper listing, and that no one can be placed on a list solely for activities protected
by the First Amendment. A representative of the Terrorist Screening Center did not respond to
a request for comment.
The system has been criticized for years. In 2004, Sen. Ted Kennedy complained that he was
barred from boarding flights on five separate occasions because his name resembled the alias of
a suspected terrorist. Two years later, CBS News obtained a copy of the no fly list and reported
that it included Bolivian president Evo Morales and Lebanese parliament head Nabih Berri.
One of the watchlists snared Mikey Hicks, a Cub Scout who got his first of many airport patdowns at age two. In 2007, the Justice Departments inspector general issued a scathing report
identifying significant weaknesses in the system. And in 2009, after a Nigerian terrorist was
able to board a passenger flight to Detroit and nearly detonated a bomb sewn into his
underwear despite his name having been placed on the TIDE list, President Obama admitted
that there had been a systemic failure.
Obama hoped that his response to the underwear bomber would be a turning point. In 2010,
he gave increased powers and responsibilities to the agencies that nominate individuals to the
lists, placing pressure on them to add names. His administration also issued a set of new
guidelines for the watchlists. Problems persisted, however. In 2012, the U.S. Government
Accountability Office published a report that bluntly noted there was no agency responsible for
figuring out whether watchlist-related screening or vetting is achieving intended results.
The guidelines were revised and expanded in 2013and a source within the intelligence
community subsequently provided a copy to The Intercept.

Concrete facts are not necessary

The five chapters and 11 appendices of the Watchlisting Guidance are filled with acronyms,
legal citations, and numbered paragraphs; it reads like an arcane textbook with a vocabulary
all its own. Different types of data on suspected terrorists are referred to as derogatory
information, substantive derogatory information, extreme derogatory information and
particularized derogatory information. The names of suspected terrorists are passed along a
bureaucratic ecosystem of originators, nominators, aggregators, screeners, and
encountering agencies. And upgrade, usually a happy word for travellers, is repurposed to
mean that an individual has been placed on a more restrictive list.
The heart of the document revolves around the rules for placing individuals on a watchlist. All
executive departments and agencies, the document says, are responsible for collecting and
sharing information on terrorist suspects with the National Counterterrorism Center. It sets a
low standardreasonable suspicionfor placing names on the watchlists, and offers a
multitude of vague, confusing, or contradictory instructions for gauging it. In the chapter on
Minimum Substantive Derogatory Criteriaeven the title is hard to digestthe key
sentence on reasonable suspicion offers little clarity:

To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the

totality of the circumstances, must rely upon articulable intelligence or information
which, taken together with rational inferences from those facts, reasonably warrants
a determination that an individual is known or suspected to be or has been
knowingly engaged in conduct constituting, in preparation for, in aid of, or related to
TERRORISM and/or TERRORIST ACTIVITIES.
The rulebook makes no effort to define an essential phrase in the passagearticulable
intelligence or information. After stressing that hunches are not reasonable suspicion and
that there must be an objective factual basis for labeling someone a terrorist, it goes on to
state that no actual facts are required:

In determining whether a REASONABLE SUSPICION exists, due weight should be

given to the specific reasonable inferences that a NOMINATOR is entitled to draw
from the facts in light of his/her experience and not on unfounded suspicions or
hunches. Although irrefutable evidence or concrete facts are not necessary, to be
reasonable, suspicion should be as clear and as fully developed as circumstances
permit.
While the guidelines nominally prohibit nominations based on unreliable information, they
explicitly regard uncorroborated Facebook or Twitter posts as sufficient grounds for putting
an individual on one of the watchlists. Single source information, the guidelines state,
including but not limited to walk-in, write-in, or postings on social media sites, however,
should not automatically be discounted the NOMINATING AGENCY should evaluate the
credibility of the source, as well as the nature and specificity of the information, and nominate
even if that source is uncorroborated.
There are a number of loopholes for putting people onto the watchlists even if reasonable
suspicion cannot be met.
One is clearly defined: The immediate family of suspected terroriststheir spouses, children,
parents, or siblingsmay be watchlisted without any suspicion that they themselves are
engaged in terrorist activity. But another loophole is quite broadassociates who have a
defined relationship with a suspected terrorist, but whose involvement in terrorist activity is
not known. A third loophole is broader stillindividuals with a possible nexus to terrorism,
but for whom there is not enough derogatory information to meet the reasonable suspicion
standard.
Americans and foreigners can be nominated for the watchlists if they are associated with a
terrorist group, even if that group has not been designated as a terrorist organization by the
U.S. government. They can also be treated as representatives of a terrorist group even if they
have neither membership in nor association with the organization. The guidelines do
helpfully note that certain associations, such as providing janitorial services or delivering
packages, are not grounds for being watchlisted.
The nomination system appears to lack meaningful checks and balances. Although government
officials have repeatedly said there is a rigorous process for making sure no one is unfairly
placed in the databases, the guidelines acknowledge that all nominations of known terrorists
are considered justified unless the National Counterterrorism Center has evidence to the
contrary. In a recent court filing, the government disclosed that there were 468,749 KST
nominations in 2013, of which only 4,915 were rejecteda rate of about one percent. The
rulebook appears to invert the legal principle of due process, defining nominations as
presumptively valid.

Proling categories of people

While the nomination process appears methodical on paper, in practice there is a shortcut
around the entire system. Known as a threat-based expedited upgrade, it gives a single White
House official the unilateral authority to elevate entire categories of people whose names
appear in the larger databases onto the no fly or selectee lists. This can occur, the guidelines
state, when there is a particular threat stream indicating that a certain type of individual
may commit a terrorist act.
This extraordinary power for categorical watchlistingotherwise known as profilingis
vested in the assistant to the president for homeland security and counterterrorism, a position
formerly held by CIA Director John Brennan that does not require Senate confirmation.
The rulebook does not indicate what categories of people have been subjected to threatbased upgrades. It is not clear, for example, whether a category might be as broad as militaryage males from Yemen. The guidelines do make clear that American citizens and green card
holders are subject to such upgrades, though government officials are required to review their
status in an expedited procedure. Upgrades can remain in effect for 72 hours before being
reviewed by a small committee of senior officials. If approved, they can remain in place for 30

days before a renewal is required, and can continue until the threat no longer exists.
In a set of watchlisting criteria riddled with exceptions that swallow rules, this exception is
perhaps the most expansive and certainly one of the most troubling, Shamsi, the ACLU
attorney, says. Its reminiscent of the Bush administrations heavily criticized color-coded
threat alerts, except that here, bureaucrats can exercise virtually standard-less authority in
secret with specific negative consequences for entire categories of people.
The National Counterterrorism Center declined to provide any details on the upgrade
authority, including how often it has been exercised and for what categories of people.

Pocket litter and scuba gear

The guidelines provide the clearest explanation yet of what is happening when Americans and
foreigners are pulled aside at airports and border crossings by government agents. The fifth
chapter, titled Encounter Management and Analysis, details the type of information that is
targeted for collection during encounters with people on the watchlists, as well as the
different organizations that should collect the data. The Department of Homeland Security is
described as having the largest number of encounters, but other authorities, ranging from the
State Department and Coast Guard to foreign governments and certain private entities, are
also involved in assembling encounter packages when watchlisted individuals cross their
paths. The encounters can be face-to-face meetings or electronic interactionsfor instance,
when a watchlisted individual applies for a visa.

In addition to data like fingerprints, travel itineraries, identification documents and gun
licenses, the rules encourage screeners to acquire health insurance information, drug
prescriptions, any cards with an electronic strip on it (hotel cards, grocery cards, gift cards,
frequent flyer cards), cellphones, email addresses, binoculars, peroxide, bank account
numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The
digital information singled out for collection includes social media accounts, cell phone lists,
speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the
information is then uploaded to the TIDE database.
Screeners are also instructed to collect data on any pocket litter, scuba gear, EZ Passes,
library cards, and the titles of any books, along with information about their conditione.g.,
new, dog-eared, annotated, unopened. Business cards and conference materials are also
targeted, as well as anything with an account number and information about any gold or
jewelry worn by the watchlisted individual. Even animal informationdetails about pets
from veterinarians or tracking chipsis requested. The rulebook also encourages the collection
of biometric or biographical data about the travel partners of watchlisted individuals.
The list of government entities that collect this data includes the U.S. Agency for International
Development, which is neither an intelligence nor law-enforcement agency. As the rulebook
notes, USAID funds foreign aid programs that promote environmentalism, health care, and
education. USAID, which presents itself as committed to fighting global poverty, nonetheless
appears to serve as a conduit for sensitive intelligence about foreigners. According to the
guidelines, When USAID receives an application seeking financial assistance, prior to
granting, these applications are subject to vetting by USAID intelligence analysts at the TSC.
The guidelines do not disclose the volume of names provided by USAID, the type of information
it provides, or the number and duties of the USAID intelligence analysts.
A USAID spokesman told The Intercept that in certain high risk countries, such as Afghanistan,
USAID has determined that vetting potential partner organizations with the terrorist watchlist
is warranted to protect U.S. taxpayer dollars and to minimize the risk of inadvertent funding of
terrorism. He stated that since 2007, the agency has checked the names and other personal
identifying information of key individuals of contractors and grantees, and sub-recipients.

Death and the watchlist

The government has been widely criticized for making it impossible for people to know why
they have been placed on a watchlist, and for making it nearly impossible to get off. The
guidelines bluntly state that the general policy of the U.S. Government is to neither confirm
nor deny an individuals watchlist status. But the courts have taken exception to the official
silence and footdragging: In June, a federal judge described the governments secretive removal
process as unconstitutional and wholly ineffective.
The difficulty of getting off the list is highlighted by a passage in the guidelines stating that an
individual can be kept on the watchlist, or even placed onto the watchlist, despite being
acquitted of a terrorism-related crime. The rulebook justifies this by noting that conviction in
U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a
reasonable suspicion. Once suspicion is raised, even a jurys verdict cannot erase it.
Not even death provides a guarantee of getting off the list. The guidelines say the names of
dead people will stay on the list if there is reason to believe the deceaseds identity may be
used by a suspected terroristwhich the National Counterterrorism Center calls a

demonstrated terrorist tactic. In fact, for the same reason, the rules permit the deceased
spouses of suspected terrorists to be placed onto the list after they have died.
For the living, the process of getting off the watchlist is simple yet opaque. A complaint can be
filed through the Department of Homeland Security Traveler Redress Inquiry Program, which
launches an internal review that is not subject to oversight by any court or entity outside the
counterterrorism community. The review can result in removal from a watchlist or an
adjustment of watchlist status, but the individual will not be told if he or she prevails. The
guidelines highlight one of the reasons why it has been difficult to get off the listif multiple
agencies have contributed information on a watchlisted individual, all of them must agree to
removing him or her.
If a U.S. citizen is placed on the no fly list while abroad and is turned away from a flight bound
for the U.S., the guidelines say they should be referred to the nearest U.S. embassy or
consulate, which is prohibited from informing them why they were blocked from flying.
According to the rules, these individuals can be granted a One-Time Waiver to fly, though
they will not be told that they are traveling on a waiver. Back in the United States, they will be
unable to board another flight.
The document states that nominating agencies are under a continuing obligation to provide
exculpatory information when it emerges. It adds that the agencies are expected to conduct
annual reviews of watchlisted American citizens and green card holders. It is unclear whether
foreignersor the deadare reviewed at the same pace. As the rulebook notes, watchlisting is
not an exact science.
Josh Begley, Lynn Dombek, and Peter Maass contributed to this story.
Photo credits: TSA: G.J. McCarthy/Dallas Morning News/Corbis (2); Guidance: Josh Begley; White
House: Win McNamee/Getty Images; Airport: Nick Ut/AP Photo
//
2013 Watchlisting Guidance (PDF)

ACKNOWLEDGEMENTS
This report was written by Jennie Pasquarella of the ACLU of Southern California (ACLU SoCal).
Interviews and research for this report were conducted by Mona Iman and Jennie Pasquarella of the
ACLU SoCal.
Editorial assistance was provided by Ahilan Arulanantham, Bardis Vakili, Mona Iman, and Belinda
Escobosa Helzer of the ACLU SoCal, and Hamsa Murthy of Mayer Brown LLP.
The report was designed by Robert Barnes of Barnes Design.
Cover art is by Marcus Benigno of the ACLU SoCal and Robert Barnes of Barnes Design.
The ACLU SoCal acknowledges with sincere thanks the California Community Foundation and the ACLU
Human Rights Project for their generous support of this project.
The following individuals made important contributions to this report: Paul Chavez of the Lawyers
Committee for Civil Rights of the San Francisco Bay Area (LCCR); Rena Chng and Marcia Maack of
Mayer Brown LLP; Edward Wenger of Jones Day; Shakeel Syed of the Islamic Shura Council of Southern
California; ACLU SoCal law clerks Blair Bailey, Mia Crager, Jordan Cunnings, Miguel Gradilla, Kaley
Lichtman, Tim Martin, Kate Mollison, and Marisol Ramirez; and LCCR law clerks Claire Fawcett,
Brianna Evans, and Veronica Melendez. Immigration lawyers Stacy Tolchin, Kip Evan Steinberg,
Nancy Hormachea, Helen A. Sklar, Valerie Curtis-Diop, Cheri Attix, Kate Evans, and Tin Thanh Nguyen
provided valuable information about their cases. The ACLU SoCal also thanks Karen Tumlin of the
National Immigration Law Center and Ameena Qazi of the Council on American Islamic Relations who
participated in the initial Freedom of Information Act request that uncovered some of the documents
upon which this report is based.

DEDICATION
This report is dedicated to the men and women whose lives and dreams have been forever altered
by the U.S. governments discriminatory treatment, needless delay, and unwarranted denials of their
applications for citizenship and other immigration benefits. We are particularly indebted to the men
and women who told us their stories and allowed us to share them in this report. It is only because of
their courage to speak up that this report could be written. And it is only because of their resolve to seek
change that the harms of CARRP can be undone, and fairness and equality in the immigration process
restored.
Published August 2013.

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

TABLE OF CONTENTS

GLOSSARY OF ABBREVIATIONS......................................................................ii
EXECUTIVE SUMMARY.....................................................................................1

Findings.............................................................................................................................................. 2
Recommendations............................................................................................................................. 4

I. INTRODUCTION................................................................................................7
II. BACKGROUND................................................................................................11

The Origins of CARRP...................................................................................................................... 11

Naturalization Procedure................................................................................................................ 12

III. CARRP: USCISS NATIONAL SECURITY POLICY............................................15

How it Works: The Mechanics of CARRP........................................................................................ 15

Stage One: Identifying National Security Concerns, Catching Far Too Many in the Net ........ 17

Known or Suspected Terrorist (KST)....................................................................................... 18

Non-Known or Suspected Terrorist (Non-KST)..................................................................... 22

In-Between Stages: Deconfliction, Ceding Authority Expressly Granted to DHS........................ 28

Stage Two: Eligibility Assessment and Internal Vetting, Looking for a Reason to Deny.............. 31

Stage Three: External Vetting, Looking for More Reasons to Deny................................................ 33

Stage Four: Adjudication................................................................................................................. 33

All Roads Lead to Denial............................................................................................................. 33
If the National Security Concern Remains, Officers are Not
Authorized to Approve the Application...................................................................................... 34

Deportation is Encouraged.......................................................................................................... 36

IV. THE IMPACT OF CARRP: DISCRIMINATION, DELAY, AND DENIAL...............39

Problem One: CARRP Disproportionately Impacts AMEMSA Immigrants

and Mislabels them National Security Concerns....................................................................... 39

The Terrorist Watch List and FBI Name Check......................................................................... 39

National Origin and Associational Criteria............................................................................... 40

Equating Islam with Terrorism................................................................................................... 41
Problem Two: CARRP Mandates Endless Delays in Violation of the
Immigration and Naturalization Laws........................................................................................... 42
Problem Three: CARRP Creates Secret Exclusions to Immigration Benefits
Not Authorized by Law and Mandates Pretextual Denials........................................................... 44

Secret Exclusions......................................................................................................................... 45

Pretextual Denials....................................................................................................................... 45
False Testimony....................................................................................................................... 45
Failure to Prosecute ............................................................................................................... 50

V. CARRPe DIEM: PRACTICE POINTERS FOR IMMIGRATION LAWYERS..........53

VI. CONCLUSION..................................................................................................59

Muslims Need Not Apply i

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

GLOSSARY OF ABBREVIATIONS
I joined the army to fight for other
peoples freedom, and I ended up
losing my own.
ACLU

American Civil Liberties Union

AMEMSA Arab, Middle Eastern, Muslim, and South Asian

CARRP

Controlled Application Review and Resolution Program

CLASS

Consular Lookout Automated Support System

FBI

Federal Bureau of Investigation

FDNS

Fraud Detection and National Security unit

FOIA

Freedom of Information Act

IBIS

Inter-Agency Border Inspection System

IDENT

Automated Biometrics Identification System

KST

Known or Suspected Terrorist

NCIC

National Crime Information Center

Non-KST Non-Known or Suspected Terrorist

OBIM

Office of Biometric Identity Management

TECS

Treasury Enforcement Communications System

TSC

Terrorist Screening Center

TSDB

Terrorist Screening Database

SAO

Security Advisory Opinions

USCIS

United States Citizenship and Immigration Services

ii Muslims Need Not Apply

Specialist Yassine Bahammou,

to whom the Army promised expedited citizenship when he joined
as an Arabic translator, but who
instead endured years of delay to
become a citizen after unfounded
accusations were made against
him and other Muslim soldiers.
I always played by the rules. I paid
taxes, contributed to society and
raised a beautiful family. The U.S.
government treated me differently
in the citizenship process because I
am a Muslim man. It was incredibly
frustrating and truly demoralizing.
No person of faith, no honest man
should have to face the discrimination I have, especially when striving
to take an oath of allegiance to the
United States.
Tarek Hamdi
Part of the reason that people love
to become United States citizens
is because of the great features of
the U.S. Constitution and the U.S.
system in general. Equality for
everybody and you expect that would
be true in the process of becoming a
U.S. citizen. But instead we are being
treated in a way directly opposite
because of our religion and national origin. I never expected that the
U.S. government, which is the most
important preserver of the Constitution, would itself be violating it and
doing it secretly so that most people
cannot even know about it. That is
hurtful, and it strikes me that it is
un-American too. It shatters your
belief to some extent in what America stands for.
Mahdi Asgari

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

EXECUTIVE SUMMARY

The CARRP
program directs
agency officers
to delay and
ultimately deny
the immigration
benefits
applications to
applicantsit has
blacklisted, all
without even
telling these
individuals that
they were labeled
threats to our
nation, let alone
giving them an
opportunity to
respond to the
allegations.

Millions of immigrants and aspiring Americans apply to U.S. Citizenship and Immigration
Services (USCIS) each year for immigration benefits, including to naturalize as American
citizens. But, under a previously-unknown national security program, USCIS secretly excludes
many of those aspiring Americans from Arab, Middle Eastern, Muslim, and South Asian
communities from the promises of citizenship, legal residency, asylum, and other benefits by
delaying and denying their applications without legal authority. For years, and without notice
to applicants, their lawyers, or the public at large, USCIS has been blacklisting law-abiding
applicants as national security concerns based on lawful religious activity, national origin,
and innocuous associations. Once blacklisted, these aspiring Americans are barred from
obtaining immigration benefits to which they are legally entitled. As a result, by putting
their applications on indefinite hold or rejecting them for unfounded reasons, thousands of
law-abiding immigrants have had their dreams of citizenship and other immigration status
dashed, without ever being told why their applications were treated differently than others.
In 2008, USCIS implemented this covert agency program, known as the Controlled Application Review and Resolution Program or CARRP, to ensure that immigration benefits are
not granted to individuals and organizations that pose a threat to national security. But the
program relies on deeply flawed mechanisms to identify national security concerns, including error-ridden and overbroad watch-list systems and security checks; and religious, national origin, and associational profiling. Predictably, the CARRP program not only catches far too
many harmless applicants in its net, but it has overwhelmingly affected applicants who are
Muslim or perceived-to-be Muslim.
The CARRP program directs agency officers to delay and ultimately deny the immigration
benefits applications of applicants it has blacklisted, all without even telling these individuals
that they were labeled threats to our nation, let alone giving them an opportunity to respond
to the allegations. Although the U.S. Constitution expressly forbids USCIS from creating its
own rules of naturalization, it secretly has done precisely that under CARRP. By barring the
provision of citizenship and other immigration benefits to applicants who are legally eligible
for those benefits under the criteria enacted by Congress, and by mandating inordinate delays
in direct contravention of statutory processing time limits, CARRP directs USCIS officers to
violate the very immigration laws that they are meant to administer.
Through a process known as deconfliction, CARRP also cedes much of the authority reserved solely for the immigration agency to federal law enforcement, in particular the Federal
Bureau of Investigation (FBI). It directs USCIS officers to work with the law enforcement
agency that possesses national security information about the applicant which is almost
always the FBI to determine what action the law enforcement agency would like it to take
on the application. Under CARRP, USCIS officers are instructed to follow FBI direction as to
whether to deny, approve, or hold in abeyance (potentially indefinitely) an application for
an immigration benefit. As a result, CARRP has effectively turned the immigration benefits
adjudication process over to the FBI.
This report focuses in particular on the harm CARRP has done to the naturalization process
that is, the process by which lawful permanent residents become U.S. citizens. Although

Muslims Need Not Apply 1

A C L U

S o C a l

L C C R / S F B A Y

USCIS paints
a picture of a
government that
welcomes some,
but shuns others
based on their
religion, national
origin, and other
profiling criteria,
and that secretly
deprives those it
blacklists of the
rights and benefits
afforded them by
law.

M A Y E R

B R O W N

naturalization applications must generally be adjudicated within six months of filing, CARRP has led USCIS to hold applications for years without adjudication. While the applicants
wait, they continue on with their lives as lawful permanent residents in the United States.
Ironically, while CARRP treats applicants as supposedly too dangerous to naturalize, they are
simultaneously treated as too harmless to expeditiously investigate, arrest or deport, undermining any argument that applicants subject to CARRP are true national security concerns.
CARRPs endless delays often amount to USCIS searching for a basis to deny the application
that simply is not there, or perhaps not even searching at all; they certainly do not manifest
an urgent or serious concern for national security. Meanwhile, contributing members of our
society, with hopes of participating in our political process and, in many cases, joining their
families as U.S. citizens, are blocked from fully realizing their American dreams.
For most people who apply for immigration benefits, the process of becoming a citizen or
permanently immigrating to this country represents the American promise of freedom,
equal opportunity, and a system of laws that promotes fairness and equality. But in practice,
people subject to the CARRP policy find that their initial encounters with the U.S. government
convey the opposite message. By relegating the applications of Muslim (or perceived-to-be
Muslim) aspiring Americans to a deceptive system designed to deny them membership in our
Nations community without fair process, USCIS paints a very different picture of the America
we believe in. It paints a picture of a government that welcomes some, but shuns others based
on their religion, national origin, and other profiling criteria, and that secretly deprives those
it blacklists of the rights and benefits afforded them by law. For far too many lawful permanent residents who apply to become citizens of this great nation, many of whom have lived
in the United States for decades and made it their home, CARRP sends one strong message:
Muslims need not apply.

Findings
Misidentifies national security concerns

2 Muslims Need Not Apply

CARRP disproportionately impacts immigrants from Arab, Middle Eastern, Muslim, and
South Asian communities. It does so by relying on extraordinarily overbroad criteria that
treat religious practices, national origin, and innocuous associations and activities as
national security concerns, and through reliance on a faulty watch-list system and FBI
surveillance data that sweeps in people who do not present any actual threat.

CARRP broadly defines a national security concern as an individual with a link to

prior, current, or planned involvement in, or association with, an activity, individual or
organization described in [the security and terrorism sections] of the Immigration and
Nationality Act, but then further expands the breadth and vagueness of that definition
by explicitly instructing officers to ignore the legal standards of proof set forth in those
sections of the Act.

CARRP automatically deems applicants whose names appear on the Terrorist Watch List
as national security concerns, thereby imposing an even more severe harm than the
travel-related harms normally associated with inclusion on the Watch List. Under CARRP,
USCIS will delay (and likely deny) the application of an individual labeled a national
security concern.

The Terrorist Watch List is a faulty, over-inclusive list containing hundreds of thousands
of names of individuals, including U.S. residents, who are never told they are on the
Watch List or given a meaningful opportunity to dispute their inclusion on it.

CARRP instructs USCIS officers to label applicants national security concerns if they
gave lawful donations to several large Muslim-American charities, even if those dona-

A C L U

CARRP creates
new, secret
eligibility criteria
for immigration
benefits by
preventing the
approval of any
application for
an immigration
benefit that the
agency labels a
national security
concern.

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

tions were made long before any accusations that the charities were providing material
support to terrorist organizations. CARRP encourages such labeling despite the fact that
the U.S. government portrayed the very same donors as innocent, misled victims of these
charities when it shut them down.

CARRP instructs officers to label applicants national security concerns based on national origin and other overbroad criteria, such as if they have travel[ed] through or resid[ed]
in areas of known terrorist activity (effectively singling applicants out as concerns
based on the country they are from); if they wire money back to their families in their
home countries; or if they speak a foreign language or have certain professions.

CARRP instructs officers to label applicants national security concerns if their names
are contained in an FBI file related to a national security investigation, even if they were
not the subject of the investigation and even if, for example, their names appear in the
file only because they attended a mosque that the FBI subjected to surveillance, or they
once gave a voluntary interview to the FBI, as many Muslim immigrants have in the last
decade.

Authorizes inordinate delays

CARRP mandates that USCIS officers delay adjudication of applications in direct contravention of statutory time limitations.

It provides that USCIS may hold cases in abeyance for periods of 180 days to provide
for investigations of the national security concern whether by the FBI or USCIS
and that the Field Office Director may extend those abeyance periods indefinitely so
long as the investigation remains open.

Because CARRP prohibits an applicant considered a national security concern from

being approved for the benefit even if they are statutorily eligible, it requires USCIS
officers to delay adjudication until or unless they can find a reason to deny the application or otherwise decide that the concern has been resolved.

Encourages FBI interference and harassment

CARRP effectively turns over the immigration benefits application process to the FBI,
allowing them to dictate to USCIS when or whether an application should be granted, denied, or held in abeyance. It also provides the FBI an opportunity to comment on USCISs
proposed decisions in immigration cases, to submit questions for USCIS to ask in interviews, and to suggest Requests for Evidence that USCIS should make.

CARRP requires USCIS officers to inform the FBI or other relevant law enforcement
agencies as soon as an applicant it has labeled a national security concern has applied
for an immigration benefit. As a result, far too often, the FBI exploits this information to
blackmail applicants to work for them as informants, telling applicants that the FBI can
help them get their long-delayed immigration application adjudicated and approved if
they agree to snitch on their communities.

Mandates pretextual denials

CARRP creates new, secret eligibility criteria for immigration benefits by preventing the
approval of any application for an immigration benefit that the agency labels a national
security concern. USCIS is not authorized to make rules, beyond those set forth by Congress, for granting naturalization or other immigration benefits.

CARRP prohibits USCIS officers from approving any application for immigration
benefits belonging to a person whose name appears on the Terrorist Watch List.
Muslims Need Not Apply 3

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP also prohibits USCIS officers from approving any application belonging to a
person it deems a national security concern for any other reason, unless they have
supervisory approval.

CARRP mandates that USCIS find a pretextual, statutory basis to deny any application
blacklisted as a national security concern, even where the applicant is statutorily eligible for the benefit. Such denials are often facially implausible or otherwise unfounded.

As a result of CARRPs requirement that officers invent a reason to deny otherwise

eligible applicants, USCIS often misuses the false testimony grounds as a basis to
deny naturalization applications.

Deprives applicants of any fair process

Under CARRP, USCIS will neither tell applicants that they have been deemed a national
security concern, nor give them an opportunity to contest that designation.

USCIS violates Constitutional due process protections and its own regulations by relying on derogatory information (that creates the alleged national security concern) in
deciding to deny an application, and never disclosing that information or allowing the
applicant to confront it.

Recommendations
Investigations
of immigration
benefits
applications must
be conducted
expeditiously, with
a general practice
of adjudicating
them within six
months.

1. USCIS should rescind or substantially reform CARRP to conform to existing immigration

law, as well as basic standards of fairness and non-discrimination.
2. Applicants must not be barred from obtaining immigration benefits for which they are
legally eligible. In particular, USCIS must approve naturalization applications that meet
the statutory criteria permitting naturalization.
3. Investigations of immigration benefits applications must be conducted expeditiously,
with a general practice of adjudicating them within six months. USCIS should not hold
applications in abeyance for prolonged periods, and must never do so indefinitely.
4. Decisions to deny an application must be made based on statutory criteria, not secret
policy. USCIS should not provide pretextual reasons for denying benefits applications.
a. USCIS should clearly define the terms affiliation, membership, and association
used in question 8(a) on the N-400 naturalization application.
b. USCIS officers must apply uniform standards to all naturalization applicants. For
example, a Muslim applicant must not be denied naturalization for failing to disclose
their mosque if a Christian applicant is not similarly expected to disclose their church
on the application.
5. Applicants may only be denied immigration benefits based on national security-related
concerns if such concerns actually render them ineligible under immigration law.
a. For example, applicants may not be denied immigration benefits for their lawful
donations to charities later accused of terrorism financing. They may only be denied
such benefits if their donations were knowingly made to support terrorism financing
and, as a result, they are ineligible for the benefit under immigration law.

4 Muslims Need Not Apply

A C L U

Decisions to deny
an application
must be made
based on statutory
criteria, not secret
policy.

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

6. Applicants must be afforded an opportunity to meaningfully respond to any evidence

that serves as the underlying reason for the denial.
7. USCIS should not permit the FBI or other law enforcement agencies to delay, exploit, or
otherwise obstruct the immigration benefits adjudication process.
a. In particular, USCIS should not permit the FBI to use information about a pending
immigration benefit application to coerce or blackmail an applicant into serving as
an informant. At a minimum, any discussion between the FBI and an applicant in
connection with an immigration application must be knowing and voluntary, and
USCIS must make clear that an applicants eligibility for an immigration benefit is not
contingent on their cooperation with the FBI.
b. USCIS should not permit the FBI to use the immigration application process to obtain information about individuals that does not pertain to USCISs adjudication of
the benefit application.

Muslims Need Not Apply 5

A C L U

S o C a l

L C C R / S F B A Y

6 Muslims Need Not Apply

M A Y E R

B R O W N

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

I. INTRODUCTION

Tarek HamdiS STORY

Tarek Hamdi

In 2001, after nearly twenty-five years residing in the United States as a lawful permanent
resident (or green card holder), Tarek Hamdi, an Egyptian national and practicing Muslim, decided to become a U.S. citizen, like his American-born wife and four daughters. Unbeknownst
to Tarek or his lawyers, his naturalization1 application was deliberately delayed and denied
by United States Citizenship and Immigration Services (USCIS) due to the secret national
security policy known as the Controlled Application Review and Resolution Program or
CARRP. Under CARRP, USCIS has quietly deprived Arab, Middle Eastern, Muslim, and South
Asian (AMEMSA)2 immigrants who aspire to be citizens across the United States the
immigration benefits they are entitled to under law. For Tarek, becoming a citizen should have
taken no more than six months by law, but instead it became a grueling eleven-year ordeal
that ultimately required two interventions by the federal courts, all because of CARRP.
USCIS treated Tarek as a national security concern because the Federal Bureau of Investigation (FBI) told USCIS that they were unable to rule out the possibility that Mr. Hamdi
may be a threat to the security of the United States. The FBI based its assessment of Tarek
on an act of charity. In 2000, Tarek gave his annual Islamic tithing (or zakat) to a U.S.-based
Islamic charity, Benevolence International Foundation (BIF), to fund humanitarian relief
to refugees and orphaned victims of wars. Two years later, the federal government shut down
BIF based on allegations of terrorism financing and prosecuted its leader for defrauding its
donors donors like Tarek by telling them their money was solely being used for humanitarian purposes. Even though Tareks act of giving was, from his perspective, no different than
a Catholic tithing to the American Red Cross, and even though BIF was shut down precisely
because the government had determined that donors like Tarek were the victims of fraud,
USCIS nonetheless treated Tareks naturalization application as suspect, labeling him a national security concern. The agency took his application off a routine adjudication track
and placed it on the CARRP track, which required the agency to concoct a pretextual reason to
deny Tareks application in spite of his statutory eligibility to naturalize.
After the agency delayed adjudicating his case for years and denied it three times, based on,
among other things, his alleged affiliation with BIF, Tarek took his case to court in hopes of
a fair decision on his application. In February 2012, after a three-day trial, a federal district
court judge rejected all of USCISs pretextual claims for why Tarek was ineligible to naturalize.
The judge personally swore him in as an American citizen a few months later.
While Tarek overcame CARRP and became an American citizen, he is, unfortunately, the
exception, not the rule. As detailed throughout this report, many other law-abiding aspiring
Americans have had their applications for citizenship and other immigration benefits unfairly
stymied through the secret CARRP process.

Muslims Need Not Apply 7

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Photo Credit: Loris Guzzetta

MAHDI ASGARIS STORY

Mahdi Asgari

Mahdi Asgari, an Iranian and practicing Muslim, has waited three years for a decision on
his naturalization application. Mahdi is a Cornell University and Oklahoma State University mathematics professor who came to the United States in 1994 to pursue his Ph.D. After
completing his Ph.D. at Purdue University, USCIS granted Mahdi a National Interest Waiver,
allowing him to adjust his status to that of a lawful permanent resident in recognition of his
unique specialization in the field of mathematics. USCIS also found it in the national interest for him to remain in the United States. He and his wife have since made the United States
their home, and are raising their daughter here.
After submitting his application for naturalization in August 2010, Mahdi began receiving
visits from FBI agents in connection with his application. One agent told Mahdis lawyer that
the visits were just fishing expeditions to talk to him about Iran. But during one interview,
the FBI agents questions focused on his relationship with a fellow Iranian graduate student
at Purdue University, where Mahdi had studied for his Ph.D., who is now on the Specially Designated Nationals list of the Office of Foreign Assets Control. During Mahdis naturalization
interview, a USCIS officer also asked him about his relationship with this individual. Mahdi
explained to the USCIS officer, as he did to the FBI, that the man is a former acquaintance and
peer from graduate school with whom he has since had very little contact, except for occasional holiday greeting emails.
By law, Mahdi should have received a decision on his application more than two and a half
years ago, but USCIS has placed his application on a CARRP processing track. Being placed
on the CARRP track means endless delay and, eventually, a denial. Mahdi is anything but a
national security concern, but so long as USCIS treats him as such under CARRP, USCIS will
follow directions from the FBI to delay and ultimately deny Mahdis application.3
hassan razmaraS STORY
Hassan Razmara, an Iranian national and practicing Muslim, has waited nearly six years for
a decision on his naturalization application. In 2002, Hassan migrated to the United States
after obtaining lawful permanent residence through the diversity visa lottery. He and his
wife applied to naturalize in 2007. Although his wifes application was approved, Hassans was
delayed.
Hassan attended an Iranian mosque in West Covina, California that was heavily surveilled by
the FBI in and around 2008. The federal government prosecuted its imam, Seyed M. Mousavi,
in 2008, for naturalization fraud, filing false tax returns, and violating the U.S. economic embargo against Iran. But Hassan himself had no connection of any kind to that misconduct.

Hassan Razmara

8 Muslims Need Not Apply

In February 2009, Hassan passed his naturalization exam and interview, but three months
later, USCIS called him in for a second interview. An FBI agent attended that second USCIS
interview and asked Hassan a series of questions about his community, his mosque, and Mr.
Mousavi, the imam. About one month later, the same FBI agent called him for a meeting and
told Hassan that he would expedite his naturalization case if he agreed to work with the agency as an informant. Although he continued to receive calls from the agent, Hassan declined
the invitation to become an informant upon legal advice that his eligibility for naturalization
could not be made contingent on his agreement to snitch on his community.

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

More than four years later, Hassans naturalization application is still pending with USCIS for
additional background checks. Though Hassans naturalization presents no threat to our
nations security, USCIS likely put his case on a CARRP track requiring delay and ultimately
denial in spite of his eligibility to naturalize at the FBIs request.

Uncovering CARRP
Since 2008, USCIS
has used CARRP
to quietly deny,
without legal
authority, the
benefits to which
these individuals
are entitled.

Tarek, Mahdi, and Hassans stories are not unique. They are like those of an untold number
of AMEMSA immigrants and aspiring citizens whose applications for naturalization, lawful
permanent residence, asylum, and visas have been unfairly delayed and denied on pretextual
grounds, in spite of their legal eligibility for the benefits they seek. Since 2008, USCIS has used
CARRP to quietly deny, without legal authority, the benefits to which these individuals are
entitled. USCISs attempts to detect national security concerns among applicants for immigration benefits rely on a dragnet approach that treats lawful religious activity, national origin,
and innocuous associations as reason to label people as national security concerns. Moreover, under CARRP, USCIS takes its cues from the FBI, converting the immigration benefits
system into an instrument of law enforcement, but without any accountability.
Congress long ago sought to eradicate discrimination from our naturalization
system by passing the Immigration and Nationality Act of 1952.4 But since 2008, USCIS has
effectively resurrected this discrimination under the cover of CARRP. Through CARRP, USCIS
has established its own undisclosed set of criteria that do not relate to statutory eligibility, but
nonetheless delay and exclude certain applicants from obtaining benefits without congressional approval.
Although USCIS has used CARRP to delay and deny immigration benefits applications for
years, causing great harm to applicants and their communities (as well as considerable confusion for immigration lawyers), it was not publicly known until recently what was causing
these problems. Through this report, we seek to publicly reveal this policy for the first time and
explain how it operates to harm law-abiding aspiring Americans from AMEMSA communities.
The information contained in this report is based on USCIS CARRP policy documents, memoranda, officer training materials, and other information obtained through litigation and
Freedom of Information Act (FOIA) requests. It is also based on dozens of interviews with
applicants for immigration benefits as well as immigration lawyers representing individuals
whose cases have been subjected to the CARRP process.
While this report attempts to summarize and distill the great deal of information we have
learned to date about CARRP, much remains unknown. USCIS has yet to respond to a number
of our requests for information under FOIA, and it has failed to disclose key documents that
will be essential to a full and comprehensive understanding of how the program works. Many
of the documents USCIS produced through FOIA were highly redacted, leaving many questions unanswered. On June 7, 2013, the ACLU of Southern California sued USCIS to obtain
additional information.5 Furthermore, while CARRP applies to all applications to USCIS for
immigration benefits including asylum, visas, green cards, and naturalization we have
focused this report primarily on the programs impact on those seeking naturalization, about
which we have the most information.

Muslims Need Not Apply 9

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

In the meantime, we hope that this report can serve as a helpful guide for applicants and
immigration lawyers working on cases affected by CARRP. We also hope that it will inform lawmakers, advocates, and the public in a shared attempt to ensure that our immigration system
remains fair and true to our core values as a nation. Aspiring Americans seek to become part
of a nation that promotes fairness, embraces religious freedom, and forbids discrimination.
Our immigration process should live up to and reflect those ideals.

See It Online:
The CARRP policy documents obtained through FOIA are available online at
www.aclusocal.org/carrp.

10 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

II. BACKGROUND

The Origins of CARRP

The end of the
FBI Name Check
delay problem,
however, marked
the beginning
of a new set of
administrative
delays in
processing
immigration
applications.

Since the attacks on September 11, 2001, the federal government has made efforts to improve security screenings in every aspect of government. In the realm of immigration, the
Department of Homeland Security has sought to ensure not only that it thoroughly vets the
immigration applications and petitions of those who seek to live in this country, but that this
screening is done in coordination with other federal agencies, particularly law enforcement
agencies. While USCISs policies and procedures to improve security screenings have changed
and evolved since 9/11, these changes have sometimes brought with them administrative and
legal problems for the agency and, in turn, for the applicants.
One significant problem resulted from the adoption of a new rule in November 2002 that
requires the agency to run all applications for immigration benefits through an additional
security check, known as the FBI Name Check, before adjudication.6 Prior to 2002, USCIS
performed FBI criminal background checks on all applicants. Those checks, however, would
search only FBI main files for records of individual applicants.7 After 2002, the FBI Name
Check added additional screening by running an applicants name through other FBI files and
databases to determine whether or not there was a match that is, whether or not an applicants name appeared in any file or database.8
Due to the number of USCIS applications as well as inadequate resources and staffing at the FBI
to process the Name Checks, hundreds of thousands of immigration applications for naturalization and green cards were delayed for years following this change.9 However, under naturalization law, USCIS is expected to process and adjudicate an application for naturalization within
six months of the date of its filing.10 In response to the unlawful delays, a series of class-action
lawsuits were filed across the country challenging the lengthy naturalization delays resulting
from the FBI Name Check.11 Following these lawsuits, the federal government cleared out the
backlogs, and many applicants who waited years finally had their applications adjudicated.12
The end of the FBI Name Check delay problem by 2008-09, however, marked the beginning of
a new set of administrative delays in processing immigration applications. USCIS issued the
CARRP intra-agency policy in 2008, apparently as an attempt to create an agency-wide policy
for identifying, processing, and adjudicating cases involving national security concerns and
coordinating with outside agencies.
No description of CARRP can be complete without mention of the significant disparate
impact on AMEMSA immigrants. Unlike the pre-existing Name Check policy, which led only
to lengthy delays, CARRP prevents the fair adjudication of immigration benefit applications
and results in pretextual, unjustified denials of those benefits that disproportionately impact
people from the AMEMSA communities. Moreover, under the FBI Name Check problem,
applicants, with some diligence, were able to discover the reason for the delay in their case. In
contrast, USCIS has worked to keep CARRP itself a secret, and it does not inform applicants of
the causes of the delays they experience. As a result, neither applicants nor their lawyers have
known or understood the reason for the inordinate delays or unjustified denials in their cases,
nor why certain applicants suddenly face extensive investigations, removal proceedings, or
criminal prosecution.

Muslims Need Not Apply 11

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Naturalization Procedure
The naturalization
process also can
not be prolonged
indefinitely: USCIS
must make a final
determination
on every
naturalization
application, either
at the time of the
examination or, at
the latest, within
120 days after
the date of the
examination.

Under federal immigration law, persons who have been residing in the United States as lawful
permanent residents may become U.S. citizens through a process known as naturalization.
A person seeking naturalization must meet certain requirements under the Immigration and
Nationality Act (INA), 8 U.S.C. 1101 et seq. Those requirements include a sufficient period
of physical presence in the United States, good moral character, an understanding of the English language, and some knowledge of the history and government of the United States.13 In
particular, a lawful permanent resident can naturalize as a U.S. citizen after five years of continuous residence in the United States, or three years of continuous residence if she is married
to a U.S. citizen.14 The applicant must demonstrate by a preponderance of the evidence that
she is a person of good moral character, attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of the United States.15 The
immigration code sets out a list of persons who shall not be regarded as having good moral character. This includes, for example, someone who is a habitual drunkard, someone
whose income is derived principally from illegal gambling or has been convicted of two or
more gambling offenses, someone who has been convicted of an aggravated felony, someone
confined to a penal institution for 180 days or more following a conviction, someone who has
participated in persecution, or someone who gives false testimony under oath for the purpose of obtaining an immigration benefit.16 This list is circumscribed by design as courts have
recognized we do not require perfection in our new citizens in order to establish that they
possess the requisite good moral character required for citizenship.17
A person seeking to naturalize must submit an application for naturalization (Form N-400) to
USCIS for adjudication, along with a fee.18 Once USCIS receives a naturalization application,
it conducts a background investigation of the applicant.19 Under federal regulations, the FBI
performs a criminal background check on each naturalization applicant, which involves a
fingerprint and database check to determine whether the applicant has an administrative
or criminal record.20 USCIS, in cooperation with other agencies, also now performs a series
of additional security checks.21 After the background investigation and security checks are
complete, USCIS schedules an in-person naturalization interview and examination, at which
point an applicant meets with a USCIS examiner who is authorized to ask questions and take
testimony.22 The examination typically includes a review to verify that the information submitted in the Form N-400 naturalization application is correct, a test of the applicants English
literacy, and a test of basic knowledge of the history and government of the United States.23
The USCIS examiner must then determine whether to grant or deny the naturalization application.24 Naturalization is not discretionary: if the applicant has complied with all the requirements, USCIS must grant the application.25
The naturalization process also can not be prolonged indefinitely: USCIS must make a final
determination on every naturalization application, either at the time of the examination
or, at the latest, within 120 days after the date of the examination.26 If USCIS does not issue
a decision within 120 days of the examination, an applicant may file suit in federal district
court under 8 U.S.C. 1447(b), which confers jurisdiction on the court either to determine the
matter namely to grant or deny citizenship or to remand with appropriate instructions to
USCIS to determine the matter.27 A primary purpose of the statutory provision at 8 U.S.C.
1447(b), enacted in 1990, was to decrease backlogs in the naturalization process and reduce
waiting times for naturalization applicants.28

12 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

In addition to the specific 120-day deadline for adjudicating applications after the examination, 8 U.S.C. 1571(b) states, [i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial date of
filing of the application. This provision, along with other statutory provisions,29 makes clear
Congresss intent to eliminate persistent backlogs in the processing of immigration benefit
applications. Congress has defined backlogs as the period of time in excess of 180 days that
such application has been pending before [USCIS].30 These provisions make clear that USCIS
is generally expected to process and adjudicate a naturalization application within 180 days.

Muslims Need Not Apply 13

A C L U

S o C a l

L C C R / S F B A Y

14 Muslims Need Not Apply

M A Y E R

B R O W N

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

III. CARRP: USCISS NATIONAL SECURITY POLICY

CARRP procedures
govern all stages
of the processing
and adjudication
of an immigration
benefit application
from the
moment the
application is filed
to the moment it is
decided.

The case will

remain on a
CARRP track
so long as the
agency continues
to believe that
the person poses
a national
security concern
or is otherwise
instructed by the
FBI to treat them
as a concern.

Adopted by USCIS in April 2008, CARRP or the Controlled Application Review and Resolution Program established a uniform, agency-wide policy for handling applications with
perceived national security concerns intended to ensure that immigration benefits are not
granted to individuals and organizations that pose a threat to national security.31 The immigration benefits administered by USCIS include naturalization, green cards (i.e., lawful
permanent resident status), asylum, and certain visas.

How It Works: The Mechanics of CARRP

CARRP procedures govern all stages of the processing and adjudication of an immigration
benefit application from the moment the application is filed to the moment it is decided.
It applies to all applications or petitions to USCIS that request immigrant or non-immigrant
status,32 making CARRP inapplicable to only a handful of applications handled by USCIS.33
CARRPs process for adjudicating benefits applications proceeds in four basic stages. Stage
One involves identifying whether a national security concern exists in an individual case. If
so, USCIS will move the case from a routine adjudication track to a CARRP track, and every
aspect of the case will be handled in accordance with the CARRP policy.34 The case will remain
on a CARRP track so long as the agency continues to believe that the person poses a national
security concern or is otherwise instructed by the FBI to treat them as a concern. Stages Two
and Three are investigative stages, aimed at finding a reason to deny an application, and Stage
Four is the adjudicative stage at which point a decision must be rendered.
The following USCIS chart summarizes, in the agencys terms, the four stages of CARRP.

Muslims Need Not Apply 15

A C L U

S o C a l

L C C R / S F B A Y

16 Muslims Need Not Apply

M A Y E R

B R O W N

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

a. Stage One: Identifying National Security Concerns

In order to
determine whether
an applicant
presents a
national security
concern, USCIS
officers are
directed to look
for indicators
that may implicate
national security
concerns through
responses to
security checks or
other information
obtained during
the adjudicative
process.

Catching Far Too Many in the Net

USCIS screens every application for an immigration benefit at the outset through
a series of security and background checks to determine if any possible national security
concern is present. National security concerns can be identified at any stage of the immigrant benefit screening or adjudicative process, but in most cases, they will be identified at
the outset.
CARRP defines a national security concern as an individual or organization [that] has been
determined to have an articulable link to prior, current, or planned involvement in, or association with, an activity, individual or organization described in [the security and terrorism
sections]35 of the Immigration and Nationality Act.36 The terms link and association with
are not further defined, thus leaving this definition extremely vague. Moreover, while the
policy suggests that officers should use the activities, individuals, and organizations described
in the security and terrorism sections of the Act as exemplars of indicators of a national
security concern, it also makes clear that the facts of the case do not need to satisfy the legal
standard used in determining admissibility or removability, a qualification that only further
expands the vagueness and breadth of the definition.37
In order to determine whether an applicant presents a national security concern, USCIS
officers are directed to look for indicators that may implicate national security concerns
through responses to security checks or other information obtained during the adjudicative
process.38 Security checks are now conducted at the outset of the processing of an application, soon after an individual applies for an immigration benefit.39 While a number of security
checks are performed, the FBI Name Check appears to be the security check most utilized for
identifying indicators of a national security concern.
Under CARRP, there are two types of national security concerns: those described as Known
or Suspected Terrorists (KSTs) and non-Known or Suspected Terrorists (non-KSTs). USCIS will automatically label an applicant a national security concern whose security checks
reveal that he or she has already been labeled by the federal government as a KST. USCIS
may also label an applicant a non-KST national security concern if certain indicators
are present.40 Both categories cast extremely wide nets, rely on discriminatory profiling, and
yield imprecise, inaccurate, and often absurd results that disproportionately impact AMEMSA
applicants.

Stage One: Identifying a National Security Concern

Known or
Suspected
Terrorist (KST)

Non-Known
or Suspected
Terrorist
(Non-KST)

Muslims Need Not Apply 17

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

i. Known or Suspected Terrorist (KST)

If USCISs security
checks reveal
that an applicant
appears on the
Terrorist Watch
List, he or she is
thus a KST and,
under CARRP,
USCIS will
automatically
consider that
applicant a
national security
concern.

18 Muslims Need Not Apply

Under CARRP, a KST is any person whose name has been placed in the Terrorist Screening
Database, otherwise known as the Terrorist Watch List.41
If USCISs security checks reveal that an applicant appears on the Terrorist Watch List, he
or she is thus a KST and, under CARRP, USCIS will automatically consider that applicant a
national security concern.42 Applicants are not told that they are on the Terrorist Watch List,
nor are they given a meaningful opportunity to dispute their inclusion on the list. Instead,
unbeknownst to them, their applications will proceed on a CARRP track, causing delay and
likely preventing USCIS from granting their application.
The Terrorist Watch List is
Decoding USCIS Documents
notoriously over-inclusive,
containing among its at least
Defining a KST
875,000 names,70 thousands
of U.S. residents of AMEMSA
CARRP defines a Known or Suspected Terrorist (KST)
descent who pose no threat
as a category of individuals who have been nominated
to the security of this counand accepted for placement in the Terrorist Screening
try. This over-inclusion arises
Database (TSDB), are on the Terrorist Watch List, and
because the Watch List does
have a specially-coded lookout posted when queried in
not require evidence that
TECS/IBIS, and/or the Consular Lookout Automated Supthe listed individuals pose
port System (CLASS), used by the Department of State.43
a threat of engaging in any
terrorist activity. NonetheThis definition effectively means that a KST is anyone
less, once someones name
whose name appears on the Terrorist Watch List. The
is on the Watch List, the
Terrorist Watch List is synonymous with the Terrorist
federal government does not
Screening Database, and, according to testimony from
provide a meaningful way
the Director of the Terrorist Screening Center, nearly
for that person to contest
every person accepted into the Terrorist Watch List will
her placement and have her
also have a record in the Treasury Enforcement Comname removed. The Watch
munications System/ Inter-Agency Border Inspection
Lists operation is particularSystem (TECS/IBIS) and CLASS systems.44
ly unfair when coupled with
CARRP. Even if an applicants
name erroneously appears
on the Watch List, she is also blacklisted from obtaining the immigration benefit that she
seeks. (See the text box How Does the Terrorist Watch List Work? for more information).

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Decoding USCIS Documents

How Does the Terrorist Watch List Work?
The Terrorist Watch List, or Terrorist Screening Database (TSDB) is developed and maintained by the Terrorist Screening Center (TSC),
which is administered by the FBI.45 The Terrorist Screening Database is the federal governments consolidated list of suspected international and domestic terrorists. It is used for watch list-related screening.46 The TSC sends records from the Terrorist Watch List to other
government agencies, which use them to identify and screen known or suspected terrorists. For example, the TSC provides records to U.S.
Customs and Border Protection (CBP) for use in screening travelers entering the United States and to the State Department for use in
determining whether to grant or revoke a visa.47
The National Counterterrorism Center (NCTC) and the FBI are the two government agencies primarily responsible for nominating individuals for inclusion on the Terrorist Watch List.48 The TSC ultimately determines whether a nomination satisfies the reasonable suspicion
standard for inclusion in the Watch List.49 According to the TSC, reasonable suspicion requires articulable facts which, taken together with
rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct
constituting, in preparation for, in aid of or related to terrorism and terrorist activities.50 The term related to is not further defined. The
federal government has not disclosed guidelines or criteria explaining how it determines that the government has reasonable suspicion
that a person is a known or suspected terrorist. According to TSC Director Timothy Healys testimony to Congress, the reasonable suspicion standard is based on the totality of the circumstances in order to account for the sometimes fragmentary nature of terrorist information. Due weight must be given to the reasonable inferences that a person can draw from the available facts.51
Given the vagueness of the standard, it is no surprise that the Terrorist Watch List is notoriously over-inclusive and includes individuals
who present no threat to our nation. A 2007 Government Accountability Office report found that the TSC rejects only one percent of nominations it receives to the Watch List.52 For example, until 2008, Nobel Peace Prize Winner Nelson Mandela was on the Watch List.53
In 2010, the U.S. government expanded the Terrorist Watch List in response to the intelligence failures that permitted Nigerian citizen
Umar Farouk Abdulmutallab, a would-be bomber, to fly from Amsterdam to Detroit on December 25, 2009. TSC Director Timothy Healy
reported that the TSC had identified additional individuals from high-threat countries and upgraded them either for inclusion in the
consolidated Terrorist Watch List or for inclusion in the No Fly List or Selectee List.54
The federal governments No Fly List and Selectee List are subsets of the Terrorist Watch List.55 Inclusion in these lists requires that
nominees meet criteria more stringent than the reasonable suspicion standard required for inclusion in the Terrorist Watch List itself.56
That is, a person can be on the Terrorist Watch List but not on the No-Fly or Selectee lists. Individuals on the No-Fly List are entirely
prohibited from boarding commercial flights that originate in or pass through U.S. airspace.57 Individuals on the Selectee List, also known
as the Secondary Security Screening Selection (SSSS) List,58 are subjected to additional inspection prior to being permitted to board
commercial flights over U.S. airspace.59
The government does not provide any notice to an individual who is placed on the Terrorist Watch List, or the No-Fly or Selectee lists.60 An
individual will likely discover their Watch List inclusion only when denied boarding on a flight (due to placement on the No-Fly List), when
subject to secondary inspection by the Transportation Security Administration (TSA) prior to boarding a flight (due to placement on the
Selectee List), or when subject to secondary inspection by Customs and Border Protection (CBP) after entering the United States from
travel abroad (due to inclusion on the Terrorist Watch List).61 Usually, persons included on the Selectee List will see the code SSSS listed on
their boarding pass.
Importantly, once an individual is placed on the Terrorist Watch List, it is very difficult to get off the list.62 The government does not provide
Watch Listed persons any meaningful redress process after being denied boarding on flights, secondary screening prior to boarding, or
secondary inspection after returning to the U.S. from travel abroad. The only redress process available is the Department of Homeland
Security Traveler Redress Inquiry Program (DHS TRIP), which permits travelers to submit a standard online form describing the travel
problem and providing identification information.63 DHS TRIP submits these traveler complaints to the TSC, which determines whether
the complainant is a positive match on the Terrorist Watch List and, if so, whether the individual should remain on the list.64 The TSC has
provided no publicly available information about how it makes these decisions.65 The TSC is the final arbiter of whether an individuals name
is retained on or removed from the list.66 Once the TSC makes a final determination regarding a particular individuals status on the Watch
List, the TSC advises DHS that it has completed its process.67 DHS TRIP then responds to the individual with a letter that explicitly states
that it can neither confirm nor deny the existence of any Terrorist Watch List records related to the individual.68 The letters do not set forth
any basis for inclusion in a Terrorist Watch List and do not state how the government has resolved the complaint at issue.69

Muslims Need Not Apply 19

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP IN PRACTICE
KSTs: Getting It Wrong
Abrahim Mosavi is a 61 year-old Iranian national, a Muslim, and a thirty-five year lawful
resident of the United States. He has waited for thirteen years for a decision on his naturalization application, which he filed in 2000. Abrahim has never been convicted of a crime
and has lived a peaceful life in the United States. He believes the government placed his
name on the Terrorist Watch List (for reasons unknown to him), because Border Patrol
agents routinely subject him to interrogation at secondary inspection when he enters the
United States from overseas trips. These inspections demonstrate that USCIS considers
him a KST, and that his naturalization application is subject to CARRP, thus explaining the
thirteen-year delay he has experienced.
Abrahim Mosavi

Samir,71 a Tunisian national, practicing Muslim, and thirteen-year lawful resident of the
United States, has been waiting for three years for a determination on his naturalization
application. He has never been charged with or convicted of a crime. Samir is routinely
subject to secondary inspection when he returns to the United States and he was once
denied boarding on a U.S. flight. He is thus likely on the Terrorist Watch List. As a result,
USCIS likely considers him a KST and has put his naturalization application on a CARRP
track, explaining the delay and disparate treatment he has experienced in the application
process. During his naturalization interview in September 2011 for which USCIS gave
him only one days notice a USCIS agent questioned him extensively about his religious
affiliations and ongoing relationships back home in Tunisia, and about how much money
he has sent in support of his family. Such questions have no bearing on his eligibility to
naturalize.

KSTs: Getting It Obviously Wrong

The following individuals are or were at one time on the Terrorist Watch List. If any of
these individuals were to apply for an immigration benefit, USCIS would have automatically deemed them a KST national security concern and would delay and, ultimately, deny
their applications under CARRP.
Nelson Mandela was listed on the Terrorist Watch List and needed special permission
to enter the United States. Fortunately, Mandela was removed from the Watch List by an
act of Congress in 2008 a solution the average person cannot rely upon.72
Senator Edward Kennedy (D-Mass) learned his name was on the Terrorist Watch
List after suffering repeated delays at airport security. Removal of his name eventually
required him to have a personal conversation with the Secretary of DHS.73
Representative John Lewis (D-Ga), a hero of the Civil Rights Movement, was on the
Terrorist Watch List.74
Yusuf Islam, formerly known as Cat Stevens, the popular singer is on the Terrorist Watch List (and, apparently, on the more restrictive subset of the Watch List known as
the No-Fly List).75

20 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

This USCIS CARRP flow chart demonstrates the process by which a KST national security concern is
identified and, if the concern is confirmed, the path towards denying the application.

Muslims Need Not Apply 21

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

ii. Non-Known or Suspected Terrorist (Non-KST)

Photo Credit: Mei-Chun Jan

If the security checks do not indicate that an applicant is a KST, then officers are directed by
CARRP to look for other indicators from any relevant sources that the applicant could be a
national security concern even though she is not a known or even suspected terrorist. CARRP refers to this kind of applicant as a Non-KST.76

Ive lived in the United

States 25 years, more
than Ive lived in any
other place. I feel the
U.S. is my home. And
now you are telling me
that my citizenship is
denied because I donated
to this organization? The
lady in the interview was
asking me Reem, you
are a smart lady. You
have a masters degree
in engineering. How
come you didnt know at
the time when you were
giving money to this
organization that it was
going to end up being a
terrorist organization?
I told her, Well, Im not
smarter than the U.S.
government. Why would
you expect me to know
that before the government itself found out?
Reem Muhanna

The policy sets out three types of indicators of a non-KST national security concern: statutory indicators, non-statutory indicators, and indicators contained in security check results.77
All are extraordinarily overbroad categories that often lead to wildly inaccurate conclusions
about an applicants connection to any actual threat to national security.

Non-KST Indicators: Statutory Indicators

CARRP instructs officers to use the activities, individuals, and organizations described in
Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA, which list the security
and terrorism grounds of inadmissibility and removability, as indicators of a national security
concern.
This collection of sections makes inadmissible or removable any person who is a member of
or associated with a terrorist organization or who has engaged in terrorist activity, but the
terms are broadly defined.78 Terrorist organizations are defined as either (1) those designated by name as foreign terrorist organizations by the Secretary of State (known as Tier I
or Tier II organizations)79 or (2) any group of two or more individuals, whether organized
or not, which engages in, or has a subgroup which engages in certain enumerated terrorist
activities (known as Tier III non-designated organizations).80 The vast overbreadth of the
Tier III category has been extensively documented.81 Among other things, the statute provides that an individual has engaged in terrorist activity if she committed an act that the
actor knows, or reasonably should know, affords material support. . . . for the commission of
a terrorist activity or to a terrorist organization.82 Material support includes, among other
things, funds, transfer of funds or other material financial benefit, no matter how small.83
Courts have read the provision broadly, such that it applies even to minimal forms of support,
support that is lawful under international law, and, in some cases, involuntary support.84
Importantly, under the statute, an individual who did not know, and should not reasonably
have known, that she was providing material support to a terrorist organization or that
the recipient planned to commit a terrorist activity is not inadmissible or removable.85 CARRP,
however, instructs officers to look far beyond the statutes already broad applicability for
indicators of national security concerns. CARRP makes clear that the facts of the case do not
need to satisfy the legal standard used in determining admissibility or removability in order
to constitute a national security concern.86 In addition, it instructs officers to look not only at
the Department of State website for lists of Tier I and Tier II terrorist organizations with which
an applicant may have some association, but to look at the Department of Treasury listings of
Specially Designated Global Terrorist Entities pursuant to Executive Order 13224 for organizations likely to meet the Tier III undesignated terrorist organization definition.87 The Treasury Department designated a number of the largest U.S. Islamic charities as Terrorist Entities
pursuant to this Executive Order.88
These instructions have led USCIS to make unwarranted conclusions about whether an applicant is a national security concern. The requirement that USCIS officers look at associations
with organizations designated by the Treasury Department (including charities), combined
with the instruction that an applicants association need not meet the legal standard for

22 Muslims Need Not Apply

A C L U

S o C a l

inadmissibility or removability to be a national security

concern, may explain why
USCIS has singled out so
many Muslim immigrants as
concerns for their donations to Islamic charities later designated by the Treasury
Department as financiers of
terrorism, such as the Holy
Land Foundation, Global Relief Foundation, and Benevolence International Foundation donations that were
not only lawful, but made
with the good faith intention
that they would be used only
for humanitarian purposes.
It is particularly ironic that
USCIS would now claim that
donors to these charities are
national security concerns
when the government previously accused these charities
of misrepresenting to donors
that their money was being
spent on solely charitable
causes, thereby portraying
the donors to these charities as innocent victims of
organizations that supported
terrorism.89

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP IN PRACTICE
Singling Out Muslim Applicants for Their Charitable
Donations
Tarek Hamdi was labeled a
national security concern
because of evidence of a
donation he made to the
Benevolence International
Foundation (BIF), an
American Islamic charity
based in Chicago, before the
Treasury Department ever
accused it and designated it a
financier of terrorism. In
2003, BIFs leader Enaam Arnout pled guilty to charges
of racketeering conspiracy for misleading the organizations donors by holding BIF out to be a charitable
organization involved solely in humanitarian work, when
it instead used some of the monies to support militants
fighting for the unrecognized government of Chechnya.91
Although Tarek was one of thousands of U.S. donors
defrauded by BIF, USCIS nonetheless subjected his
application to CARRP, delaying and ultimately denying
his naturalization application on pretextual grounds until
a federal court reversed that decision.92
Jamal Atalla, a physician who volunteered his time
providing emergency services, was likely labeled a
national security concern and had his naturalization
application subjected to CARRP because of volunteer
work and donations he made to the Global Relief Foundation (GRF), an American Islamic charity, prior to its
designation by the Treasury Department as a financier of
terrorism.93 Like Tarek Hamdi, Jamal was also a victim
of GRF to the extent GRF misrepresented its charitable
activities. USCIS likely put his application on a CARRP
track, delaying and ultimately denying his naturalization
application on pretextual grounds. Jamal appealed to the
federal district court, which disagreed with USCIS and
found him eligible to naturalize. The governments appeal of that decision is pending before the Ninth Circuit.94

While the material support

provisions of the statute
were designed to ensure that
individuals who did not or
should not have known that
they were supporting terrorism would not be held liable
for their support, CARRPs
guidance leads to the opposite result, as it encourages
officers to ignore the statutes
requirement that a person
knowingly provide material support by directing them to scrutinize any material support
provided to an organization designated by the Treasury Department (i.e., many of the largest
American Muslim charities).90 It thus punishes people who engaged in no wrongdoing by
preventing them from obtaining immigration benefits.

Muslims Need Not Apply 23

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Non-KST Indicators: Non-Statutory Indicators

CARRP also instructs officers to look at non-statutory indicators of a national security concern, such as (1) a persons employment, training, or government affiliations; (2) other suspicious activities; and (3) family members or close associates.95 With respect to employment,
training, and government affiliations, it instructs officers to consider proficiency in particular
technical skills gained through formal education, training, employment, or military service,
including foreign language or linguistic expertise, as well as knowledge of radio, cryptography,
weapons, nuclear physics, chemistry, biology, pharmaceuticals, and computer systems.96

Abrahim Mosavi. Travel to

see family? CARRPd.

Tarek Hamdi. Donated $ to

charities? CARRPd.

Mahdi Asgari. Suspicious

former classmates?
CARRPd.

24 Muslims Need Not Apply

CARRP states that other suspicious activities could include:

Unusual travel patterns and travel through or residence in areas of known terrorist
activity;

Criminal activities such as fraudulent document manufacture; trafficking or smuggling

of persons, drugs, or funds; or money laundering;

Large scale transfer or receipt of funds;

Membership or participation in organizations

that are described in, or
that engage in, activities outlined in sections
212(a)(3)(A), (B), or (F),
or 237(a)(4)(A) or (B) of
the Act.97

Finally, CARRP directs officers to look at whether the

applicant has a family member or close associate who
is a national security concern
to determine whether that
association gives rise to a
national security concern
for the applicant. The policy
states that a close associate could be a roommate,
co-worker, employee, owner,
partner, affiliate, or friend.98
Such indicators are obviously
vague and overbroad, and
therefore necessarily capture
individuals who pose no
threat to national security at
all. As discussed in Chapter IV(a), they also lead to
national origin and religious
discrimination. By defining
suspicious activities as
including travel through or
residence in areas of known

CARRP IN PRACTICE
Finding a National Security Concern Based Solely on
a Casual Association
Mahdi Asgari may have been deemed a national security concern solely because he attended university with
and casually associated with another Iranian student
who years later the U.S. government placed on its Specially Designated Nationals list of the Office of Foreign
Assets Control. USCIS has placed his application on a
CARRP track, given the lengthy delays in his case and
repeat visits from the FBI in connection with his naturalization application.
Zuhair Mahmoud is a practicing Muslim originally
from Jordan who has resided in the United States for
twenty-three years. He is blind and is active in advocacy
for people with disabilities. His application for naturalization was delayed for five years, ultimately requiring the
intervention of the federal district court on two separate
occasions. USCIS may have deemed Zuhair a national
security concern and subjected his application to CARRP and its predecessor policies on account of non-KST
indicators that amount to religious and other profiling.
For example, Zuhair regularly attended mosque, served
on the Board of the Islamic Schools of Denver, and made
donations to charitable organizations during fundraisers at his mosque. His career has been spent working
in information technology. He was regularly subject to
secondary inspection at the airport. After two successful
federal lawsuits, a federal court finally ruled that he was
eligible to naturalize in 2009.

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Photo Credit: Shealah Craighead

The policy
effectively directs
officers to find
national security
concerns simply
because an
applicant is from
a given country
where his family or
friends still reside.

Zuhair Mahmoud. IT Professional? CARRPd.

CARRPs NonKST indicators are

obviously vague
and overbroad,
and therefore
necessarily
capture individuals
who pose no threat
to national security
at all.

terrorist activity, the policy effectively directs officers to find national security concerns
simply because an applicant is from a given country where his family or friends still reside.
Similarly, [l]arge scale transfer or receipt of funds is so broad as to include individuals who
wire money back to their families in their home countries. In addition, by directing agents to
consider a persons profession, military training, or foreign language expertise, for example,
as indicators of a national security concern, this indicator could apply broadly to a large
segment of skilled immigrant applicants, and, ultimately, to anyone who speaks a language
other than English.

Non-KST Indicators: Indicators Contained in Security Check Results

Finally, officers are directed to examine the results of security checks, such as the FBI Name
Check, the FBI Fingerprint or NCIC Criminal History Check,99 the OBIM and IDENT checks,100
and TECS/IBIS,101 to determine whether any indicators of a national security concern are
present.

Muslims Need Not Apply 25

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Decoding USCIS Documents

Security Checks
USCIS performs the following security checks on applications for immigration benefits: the FBI Name Check; the FBI Fingerprint Check; Treasury Enforcement Communications System/ Inter-Agency Border Inspection System (TECS/IBIS); the
Consular Lookout Automated Support System (CLASS); Department of State Security Advisory Opinions (SAOs); the Office
of Biometric Identity Management (OBIM), formerly the U.S. Visitor and Immigrant Status Indicator Technology (US VISIT);
the Automated Biometrics Identification System (IDENT)); and other system checks.102
FBI Name Check is the FBI name-based background check called the National Name Check Program.103 The FBI receives
name check requests from federal agencies, including USCIS; from components within the legislative, executive, and
judicial branches of the federal government; and from foreign police and intelligence agencies.104 Agencies request a name
check prior to bestowing certain benefits.105 After receiving a request, the FBI reviews documents to determine whether a
specific individual has been the subject of or mentioned in any FBI investigation, and, if so, what information the FBI can
release to the requesting agency.106
FBI Fingerprint Check is the FBIs national fingerprint and criminal history check called the Integrated Automated Fingerprint Identification System (IAFIS).107 The FBI responds to requests submitted by local, state, and federal partners (like USCIS), inquiring about apprehensions.108 IAFIS provides fingerprint search capabilities, latent search capabilities, electronic
image storage, and electronic exchange of fingerprints and responses.109
TECS/IBIS is the Department of Homeland Securitys primary lookout system. U.S. Customs and Border Protection (CBP)
is the principal owner and primary user of TECS.110 It uses the system to screen individuals at all ports of entry.111
CLASS is a database administered by the Department of States Bureau of Consular Affairs. The database is used by consular officers abroad to screen visa applicants for travel to the United States.112
SAO is a system used by the U.S. Department of State, whereby consular officers abroad are required to refer visa applications with suspect names or other flags identified by CLASS and other systems to Washington-based agencies (intelligence
and other law enforcement bodies) for further review, before granting U.S. nonimmigrant visas to foreign nationals.113
OBIM (formerly US-VISIT, the system for collecting and sharing biometric data at points of entry) is the central database
created within the Department of Homeland Security in March 2013 to streamline the provision of technologies for collection, storage, and analysis of biometric data, and upkeep of watchlists.114 All non-U.S. citizens, with limited exception, are
subject to OBIM procedures, including digital fingerprints and photographs upon entry or reentry into the United States.115
IDENT serves as a biographic and biometric repository for the Department of Homeland Security. Once a persons biometric data has been collected by OBIM, IDENT stores and enables the sharing and cross-checking of that data. It automatically compares new encounters to identified data within the system, and checks against its KST, criminal, and other immigration violation-related watchlists.116

26 Muslims Need Not Apply

A C L U

Among these
security checks,
the use of the
FBI Name Check
is perhaps the
most troubling,
because it is most
likely to have a
dragnet effect,
leading USCIS to
erroneously label a
person a national
security concern
without any
legitimate basis to
do so.

S o C a l

Among these security

checks, the use of the FBI
Name Check is perhaps the
most troubling, because it is
most likely to have a dragnet effect, leading USCIS to
erroneously label a person a
national security concern
without any legitimate basis
to do so. CARRP states if
the results of the FBI Name
Check are positive meaning the applicants name is
somehow mentioned in a
file and the result relates
to certain types of national
security law enforcement investigations, such as terrorism-related investigations,
then they are indicators
of a national security
concern.117

L C C R / S F B A Y

M A Y E R

B R O W N

Decoding USCIS Documents

Positive FBI Name Check Hits
If an applicant has a positive FBI Name Check result
linking their name to a file relating to certain types of investigations, USCIS may deem them a national security
concern.
These investigations include:
foreign counterintelligence;
acts of terrorism;
international terrorism;
domestic terrorism;
hostage taking terrorism;
money laundering or suspicious financial transactions
with some link to a national security activity;
violations of arms control treaty measures;
sabotage;
bombings and explosives violations;

threats or attempts to use, possess, produce, or transWhen an applicant receives

port weapons of mass destruction (WMD); and
a positive name check hit
use, possession, production, or transport of a WMD.118
in an FBI file related to a
national security investigaNotably, an individual applicant may receive a positive
tion, CARRP directs USCIS
name check from merely being referenced (i.e., menofficers to treat the applitioned) in a file, regardless of whether he or she was the
cant as a national security
suspect of the investigation. In this way, witnesses, famconcern, except in those
ily members, and even victims of the above-mentioned
instances where a Letterhead
crimes, as well as individuals with the same or similar
Memorandum (LHM) on
sounding names as people in FBI files, may receive a
file states that the case agent
positive hit in the FBI Name Check.
made a definitive finding
that the applicant had no
nexus to national security.119
Therefore, USCIS may deem any applicant a national security concern whose name is merely contained in a file associated with one of these types of investigations and, as will generally
be the case, no definitive finding has been made that the person is not a national security
concern. As a result, USCISs reliance on FBI Name Check results to determine whether an
individual is a national security concern disproportionately impacts AMEMSA immigrants,
and leads to the denial of benefits for many people who do not present any threat to our
nation.

Muslims Need Not Apply 27

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP IN PRACTICE
Positive FBI Name Checks as Indicators of a National Security Concern

Tarek Hamdi

Ahmad and Reem

Muhanna

Tarek Hamdis naturalization application was initially flagged as a national security

concern because his FBI name check produced a positive hit related to a counterterrorism investigation. Specifically, there was a hit on his name in the investigative files
of the FBIs investigation of Benevolence International Foundation. An FBI record of a voluntary interview Tarek gave to the FBI regarding a donation he made to the Benevolence
International Foundation was contained in the file and triggered the hit.120 Further, a
Letterhead Memorandum on file stated that the FBI could not rule out the possibility that
Tarek was a national security concern. As a result, USCIS treated him as a concern.121
Ahmad and Reem Muhanna, nationals of Palestine and practicing Muslims, have resided together in the United States since 1988. They filed their naturalization applications
in May 2007 and have since waited six years for a final decision on their naturalization
applications. FBI Name Check results likely identified FBI records from its investigation
of the Holy Land Foundation, an Islamic charity, that showed that the Muhannas made
donations to the charity before it was shut down by the government. USCIS likely deemed
them national security concerns, and placed their applications on a CARRP track,
because of their donations, which would explain the lengthy delays they have experienced
and USCISs implausible denial of their applications. The Muhannas have administratively
appealed that determination and are awaiting a decision on their appeal.

b. In-Between Stages: Deconfliction

Ceding Authority Expressly Granted to DHS
Once USCIS has identified a national security concern in a particular case (Stage One of
CARRP), CARRP then encourages an officer to conduct so-called deconfliction. Deconfliction means contacting the law enforcement agency that possesses the supposed national
security information about the applicant (described as the record owner of the information)
to ensure that any USCIS adjudicative activities (e.g., an interview, request for evidence, site
visit, decision to grant or deny a benefit, or timing of the decision) do not compromise or impede any ongoing investigation or other record owner interest.122 CARRP requires that USCIS
officers conduct deconfliction at all stages throughout the processing and adjudication of a
CARRP application.
According to USCIS, deconfliction provides USCIS an opportunity to inquire with the law enforcement agency about an applicants criminal and immigration history, as well as to request
information about a persons associations, travel, military training, and residences, among
other things. 123 However, it also expressly provides an opportunity for the law enforcement
agency usually the FBI to submit questions that USCIS will ask in an interview or through
a Request for Evidence (RFE), to comment on a proposed decision on the benefit, and to
request that a case be denied, granted, or held in abeyance.124 According to the policy, USCIS
may hold cases in abeyance for periods of 180 days to enable law enforcement and USCIS
investigations of the national security concern, and the Field Office Director may extend the
abeyance periods indefinitely so long as the investigation remains open.125

28 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Muslims Need Not Apply 29

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP directs that deconfliction take place before adjudicative action is taken in a case
involving a national security concern.126 This requirement ensures that the law enforcement
agency always has an opportunity to opine on the adjudicative action being taken and to
request delay or denial.

At my second naturalization interview, an FBI

agent, Ali, was present
and asked me a lot of
questions about my community, my mosque, my
imam, and other people
I knew there. I answered
all of his questions to the
best of my understanding. Later on, I received
several calls from Agent
Ali to have another informal interview at a coffee
shop. I agreed to meet
with him and he repeated
all the questions about
me and my community
again. He said there is
not any problem with my
naturalization case and
they are not holding it up.
But he also said he would
expedite my naturalization case if I signed an
agreement with him that
I become an informant
for the FBI. I believe that
the USCIS and the FBI is
keeping my naturalization application open so
that the FBI can pressure
me into becoming an
informant and providing
them information about
my community. I do not
believe that spying on my
community is a requirement of U.S. citizenship.
Hassan Razmara

30 Muslims Need Not Apply

While some level of interagency cooperation (beyond information sharing) may be appropriate in the benefits adjudication process, CARRPs deconfliction process, by design, blurs
the lines of USCIS authority by empowering the law enforcement agency to interfere in the
processing and adjudication of an immigration application. Not only does the policy provide
that law enforcement can opine on whether or not a person should receive a benefit, thereby empowering them to influence decisions that they are not legally authorized to make, it
also very often leads law enforcement to misuse information it obtains from USCIS about an
applicant and his or her pending application.127
For example, the FBI routinely uses this information to blackmail individuals into becoming
informants for the agency, claiming that if the individuals agree to work with the FBI, the
agency will ensure that their applications are finally approved.

See It Online:
For CARRP deconfliction training manuals and videos, go to www.aclusocal.org/carrp.

CARRP IN PRACTICE
Deconfliction: FBI Interference and Mandatory Delays
Zuhair Mahmoud was contacted by the FBI on four separate occasions for voluntary
interviews after filing his naturalization application. On all four occasions, the agents
pushed Zuhair into becoming an informant for the FBI, and once offered to assist him
with his pending naturalization application in exchange for his working as an informant
for them. On one occasion they also asked for his expertise as an IT specialist to log into
Arabic-language chat rooms. Zuhair was willing to talk with the FBI, but not willing to
work as an informant. USCIS delayed adjudicating his application for five years, ultimately
requiring the intervention of a federal district court on two separate occasions before he
was finally naturalized.
Hassan Razmara applied to naturalize in 2007. In the following year, when the federal
government put Hassans mosque under surveillance and prosecuted its imam, USCIS
stalled Hassans naturalization process. Although he passed his naturalization examination, three months later USCIS called Hassan back for additional questioning about the
mosque, with an FBI agent present in the interview. Subsequently, the same FBI agent
contacted him several more times in an effort to coerce him into acting as an informant,
with promises that if he agreed, his naturalization would be expedited. Hassan declined
to spy on his community; years later, his USCIS application is still pending, likely at the
behest of the FBI.

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP IN PRACTICE
Deconfliction: FBI Interference and Mandatory Delays
Mahdi Asgaris naturalization application has been delayed three years due, at least in
part, to deconfliction. Since filing his application, FBI agents have approached him for
questioning on multiple occasions, each time referencing his naturalization application.
Their questions centered on what he knew of an Iranian man who had attended the same
graduate university, whose name now appears on the Specially Designated Nationals list
of the Office of Foreign Assets Control. USCIS later asked him many of the same questions in his naturalization interview questions that the FBI likely instructed USCIS to ask
through the deconfliction process. Although Mahdis casual association with the man years
ago cannot impact his eligibility for naturalization, and although he has explained everything he knows and remembers, he still has not received a decision on his application.
Mahdi Asgari

Ahmed Osman Hassan

Samir was visited by the FBI on a few occasions after filing his naturalization application,
likely due to deconfliction. The FBI continues to approach his friends for questioning about
him. Three years after filing his application and two years after his naturalization interview, he is still waiting for a decision.
Ahmed Osman Hassan is a Somali refugee who spent 14 years of his childhood in a
refugee camp in Kenya before resettling in the United States in 2004 with the help of the
United Nations High Commissioner for Refugees. Soon after applying for his green card in
2006, police looking for a suspect with similar features mistakenly arrested Ahmed. Despite his release, the FBI file created in his name likely led his application to be subject to
CARRP, resulting in USCISs multiyear delay in processing his green card application and,
ultimately, the FBI targeting him as a potential informant. Between 2009 and 2010, the FBI
repeatedly interfered in Ahmeds life to question him on his religious practices and access
to other Somali Muslims in his community, promising immigration assistance to him and
his family in exchange for information. When Ahmed eventually tired of the anxiety-provoking calls and visits by the FBI, however, and exercised his right to decline additional
questions, USCIS (likely at the behest of the FBI) immediately denied Ahmeds green card
application and terminated his refugee status.

c. Stage Two: Eligibility Assessment and Internal Vetting

Looking for a Reason to Deny
Once a national security concern has been identified, USCIS officers are directed under
CARRP to conduct a thorough review of the record associated with the application or petition
to determine if the individual is eligible for the benefit sought i.e. to conduct an eligibility
assessment.128
Notably, [t]he purpose of the eligibility assessment is to ensure that valuable time and resources are not unnecessarily expended externally vetting a case with a record owner when
the individual is otherwise ineligible for the benefit sought. When this is the case, the application or petition may be denied on any legally sufficient grounds.129
In other words, at this stage of the CARRP process, officers scrutinize the application or petition far more than they would for a routine adjudication to find any basis upon which
they can deny the application in order to avoid spending time and resources vetting the

Muslims Need Not Apply 31

A C L U

S o C a l

L C C R / S F B A Y

At this stage of the

CARRP process,
officers scrutinize
the application
to find any basis
upon which they
can deny the
application.

M A Y E R

B R O W N

national security concern (either internally or externally, with the relevant law enforcement
agency) to determine whether there is a live concern.
Through internal vetting, officers assess whether the applicant is eligible for the immigration benefit, and, if so, further examine the nature of the national security concern.130 At this
stage, officers are only permitted to review information available on DHS systems and databases, open source information, the applicants file, and other information obtained through
Requests for Evidence (RFEs), interviews or site visits.131

CARRP IN PRACTICE
Searching for Pretextual Reasons to Deny through Internal Vetting
Mohammad Hamdan132 is a Jordanian national and practicing Muslim, who runs a
successful dentistry practice and serves in leadership roles within his religious community. Like many in his community, after the September 11, 2001 attacks, the FBI visited
Mohammad for general questioning; the FBI likely created a record of that interview that
would be triggered by the FBI Name Check. Since that time, he has been subjected to extensive secondary inspection each time he travels, and is frequently met by officials at the
plane upon landing in the United States and abroad. As a result, USCIS likely considered
Mohammad to be a national security concern, and therefore it was required by CARRP
to find a reason to deny his naturalization application. Upon internally vetting his file, it
issued Mohammad an RFE for his business licensing dating back five years. Mohammad
complied fully with the request. One of his business records, however, was dated two
months late one year. Although Mohammad explained that the license was valid the entire
year, despite being dated two months late, USCIS denied his application alleging that he
failed to comply with the RFE by failing to provide a license for the two-month period. Mohammad administratively appealed the unwarranted denial, and was ultimately granted
his citizenship.
Abrahim Mosavi, an Iranian national with no strong religious identity, has been waiting
thirteen years for a fair adjudication of his application to naturalize. After subjecting him
to years of delays and multiple RFEs regarding information that has no statutory bearing
on his eligibility for citizenship, and thousands of dollars in filing and attorneys fees, USCIS denied Abrahims application in 2010 on grounds that he failed to provide information
that was never asked of him. Upon appeal, USCIS again denied his application, this time
by making the false and illogical claim that in February 2010 he was outside the country
into the future through June 2010 and that he had been absent from the country for more
than 180 days.

Abrahim Mosavi

32 Muslims Need Not Apply

CARRP training documents specifically instruct officers on what factors to assess to determine whether they can come up with a reason to deny the benefit. The instructions are specifically geared toward finding a basis to deny an application on false testimony grounds or
failure to prosecute an application. Officers are instructed to document an eligibility assessment by creating a complete timeline of the persons immigration history, to create a detailed
summary and assessment of all the eligibility factors for the benefit sought, to conduct a
thorough fraud assessment, and to review whether there were any ineligibility factors affecting the previous underlying benefit.133 Officers are encouraged to carefully review names,
addresses listed, marriage history, travel history, and other sources, to detect discrepancies
and possible evidence of fraud. They are further instructed to look at open source information
and tax returns to find evidence of discrepancies on the application that could indicate fraud.

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

For example, one training document suggests that officers compare the following:

If, after conducting

the eligibility
assessment, an
officer concludes
that there is a
basis to deny
the application,
officers are
instructed to
again conduct
deconfliction
to determine the
position of any
interested law
enforcement
agency, and
then, based
on the results,
either deny the
application or hold
it in abeyance per
law enforcement
instructions.

External vetting is
similar to internal
vetting in that
its purpose is to
vet the national
security concern
and to look for a
reason to deny the
application.

addresses listed on applications with those found in other open sources;

an applicants tax returns with his immigration application for discrepancies in information about spouses or children;

information found in open sources about an applicants employment with information

about employment listed on an application; and

information about charitable contributions found in open sources or tax returns with
information contained on an application or provided in an interview.134

If officers identify questions, they are encouraged to send RFEs requesting additional
documents and information and to follow up on their questions in interviews with the
applicants.135
If, after conducting the eligibility assessment, an officer concludes that there is a basis to deny
the application, officers are instructed to again conduct deconfliction to determine the
position of any interested law enforcement agency, and then, based on the results, either deny
the application or hold it in abeyance per law enforcement instructions.136 However, if the
national security concern remains and the officer cannot find a basis to deny the benefit, the
application then proceeds to Stage Three of CARRP.

d. Stage Three: External Vetting

Looking for More Reasons to Deny
If the internal vetting and eligibility assessment reveal that the national security concern
remains and the applicant is eligible for the benefit, the case proceeds to the third stage of
CARRP, during which officers externally vet the national security concern before the application can be adjudicated.137 External vetting is similar to internal vetting in that its purpose
is to vet the national security concern and to look for a reason to deny the application. The
difference is that internal vetting relies on investigations using DHSs own data systems while
external vetting relies on outside agencies to provide additional information, and may involve
handling sensitive or classified information.138
During external vetting, a USCIS officer must confirm the existence of the national security
concern with the record owner of the information that created the concern and obtain
additional information from that agency regarding the nature of the concern and its relevance
to the individual.139 The officer is also instructed to collect additional information from that
agency to support an eligibility determination and removability.140 If there is no record owner
because an officer identified the national security concern through interactions with the applicant or other means, then external vetting is not required.141

e. Stage Four: Adjudication

All Roads Lead to Denial
If after external vetting the national security concern remains, officers are instructed to
evaluate whether the results of the vetting have any relevance to adjudication and seek to obtain any other additional information, such as through an RFE, interview, or administrative
site visit that could provide a basis to deny the application. They are instructed to thoroughly

Muslims Need Not Apply 33

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

document an eligibility determination and to document and pursue facts that would support removal, rescission, termination, or revocation of the persons underlying immigration
benefit.142
All paths for a case labeled a national security concern lead USCIS to find a reason to deny
the application.

Ultimately, if a KST
national security
concern remains
after deconfliction
and vetting, and
the applicant is
otherwise eligible
for the benefit,
CARRP states that
the application
may not be
approved.

If the National Security Concern Remains, Officers are

Not Authorized to Approve the Application
Ultimately, if a KST national security concern remains after deconfliction and vetting, and
the applicant is otherwise eligible for the benefit, CARRP states that the application may not
be approved.143 The policy states bluntly Officers are not authorized to approve applications
with confirmed KST [National Security] concerns.144 Instead, the policy suggests that the case
must then be sent to headquarters for additional vetting to find a reason to deny the benefit
and also to find a basis to initiate removal proceedings.145

CARRP IN PRACTICE
KSTs Cannot Be Approved Unless Removed from the Terrorist Watch List
Jameel Haddad,145a a Palestinian national and practicing Muslim, moved to the United
States with his Palestinian-American wife eight years ago with conditional permanent residency status. He filed an I-751 petition to remove the conditions in 2007 as required, but
has been repeatedly told that his petition remains pending security checks, and is thus
forced to file costly extensions every year. Three years ago, Jameel tried to naturalize.
Although he passed his interview, he was again told that USCIS could not adjudicate his
application before the resolution of his I-751. Despite this, he has yet to be afforded the
opportunity to interview on the I-751 to which he is entitled. Jameel is routinely referred to
secondary inspection when he travels, indicating that he is on the Watch List, and in 2010,
U.S. Customs and Border Protection held him and his family at John F. Kennedy International Airport for fourteen hours with no explanation. Jameel is likely considered a KST,
and it seems that as long as his name remains in the system, and there is no cause for
denial or deportation, USCIS will continue to indefinitely hold his application in abeyance.
Yassine Bahammou is one of a number of Arabic-speaking immigrants who joined
the U.S. Army as interpreters during the Iraq war through a program known as 09 Lima,
which offered expedited naturalization and other benefits to enlistees in exchange for
their service. Specialist Bahammou, who already held a valid green card when he enlisted, hoped to build a career in law enforcement after his service. As soon as he applied to
naturalize in 2009, however, USCIS received a request from the Army to place his application in abeyance pending an investigation that was later dropped and proven to be entirely
unfounded. Ignoring official letters from the Army clearing his name, USCIS continued to
question him on the debunked investigation, and prevented his application from moving
forward until 2012. Despite his innocence, Specialist Bahammous name was also never
removed from the governments Watch List, and as a result, he has been barred not only
from serving with the D.C. National Guard, as he had planned, but prevented from gaining
other employment in the security sector.146

34 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

All Roads Lead to Denial or Delay. This USCIS CARRP flow chart demonstrates how every step of the CARRP
vetting and adjudication process is designed to find a basis to deny or hold an application in abeyance.

Muslims Need Not Apply 35

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

If a non-KST national security concern remains after deconfliction and vetting, and the
applicant is otherwise eligible for the benefit, CARRP states that [o]fficers are not authorized
to approve applications with confirmed Non-KST NS concerns without supervisory approval
and concurrence from a senior-level official.147 If a senior-level official does not concur with
the officers recommendation to approve, the senior-level official then may seek assistance
from the USCIS Fraud Detection and National Security unit at headquarters. Assistance from
headquarters entails a lengthy review process involving multiple USCIS sub-agencies whose
purpose is to find a reason to deny the application and information to support that determination.148

Deportation Is Encouraged
The policy does
not stop at merely
finding pretextual
grounds to deny
naturalization, but
goes even further
to encourage
actual deportation
with all of the
concomitant
hardship, including
the separation of
entire families.

If the agency ultimately finds

CARRP IN PRACTICE
grounds to deny the benefit,
the policy directs officers
Searching for Grounds for Deportation
to also look for grounds to
support deportation and to
Once USCIS determined that Tarek Hamdi was a nacoordinate with Immigration
tional security concern and that it would not approve
and Customs Enforcement
his application in spite of his eligibility to naturalize, it
(ICE) to initiate removal
worked with Immigration and Customs Enforcement
proceedings by serving a
(ICE) to investigate possible grounds to place him in reNotice to Appear in immimoval proceedings. The investigation focused on whether
gration court on the applithe government could place him in removal proceedings
cant.149 Thus, the policy does
on grounds that his single donation to the Benevolence
not stop at merely finding
International Foundation (BIF) constituted material
pretextual grounds to deny
support to a terrorist organization. In order to do so, the
naturalization, but goes
government needed evidence from Tarek that he donated
even further to encourage
to BIF knowing that it was financing terrorism-related
actual deportation with all of
activities. In order to obtain this evidence, USCIS schedthe concomitant hardship,
uled Tarek for a second interview in connection with his
including the separation of
naturalization application. Even though USCIS scheduled
entire families. An officer
the interview as a naturalization interview, the actual
who denies a benefit based
purpose of this interview was to question him for the
on a non-KST concern is repurpose of initiating removal proceedings. Unable to esquired to enter a record into
tablish that Tarek knowingly provided material support,
TECS for future reference by
ICE ultimately concluded that there was no basis upon
law enforcement,150 presumwhich they could initiate removal proceedings.
ably creating a record for the
use of other federal agencies
indicating that the individual was deemed to have a national security concern. Similarly,
non-KST concern cases that are approved must also be documented in Fraud Detection and
National Security unit (FDNS) databases to reflect that the national security concern was
not resolved.151
Through its four stages and deconfliction, CARRP systematically mandates that USCIS
agents delay processing and adjudication and exclude law-abiding immigrants from obtaining the immigration benefits, including naturalization, to which they are lawfully entitled.
It does this by relying on dragnet techniques that fail to identify people who genuinely pose
a threat to our national security, and by improperly ceding its decision-making authority
to the FBI.152 As discussed in the next chapter, these techniques disproportionately impact
AMEMSA immigrants, and the delays and denials they cause violate governing immigration
law. Through CARRP, USCIS has sought to circumvent Congress which has sole authority

36 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

under the Constitution to establish an uniform Rule of Naturalization153 by establishing

its own set of rules for adjudication. In doing so, it has fundamentally strayed not just from
its duty to administer (not make) the laws governing immigration benefits, but has also infused the immigration process with discrimination and a lack of fairness that are profoundly un-American.

Through CARRP,
USCIS has sought
to circumvent
Congress
which has sole
authority under
the Constitution
to establish an
uniform Rule of
Naturalization
by establishing its
own set of rules
for adjudication.

Q [H]ow does [the fact that USCIS considered him a national

security concern] affect whether Mr. Hamdi is eligible for
naturalization?
A Well, it it doesnt make him statutorily ineligible, but because he
is a he still has a national security concern, it affects whether or
not we can approve him. . . .
Q Okay. And why does it affect whether or not you can approve him?
A Because hes because theres still a national security concern.
Q And although that doesnt make him ineligible statutorily, how
does it make him ineligible otherwise?
A Well, until until that national security concern is is resolved, he
wont get approved.
Q And how does that come from a body of law or policy?
A Well, it comes from yes it does.
Q What body of law or policy does that come from?
A That comes [from] the CARRP policy.
Deposition of USCIS witness Officer Robert Osuna.154

Muslims Need Not Apply 37

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

IV. The Impact of CARRP: Discrimination,

Delay, and Denial
Though there are numerous legal and policy problems with CARRP, three problems in particular raise the greatest concerns. First, CARRP disproportionately impacts law-abiding immigrants from AMEMSA communities, mislabeling them national security concerns based on
arbitrary and discriminatory criteria. Second, it mandates inordinate delays in the processing
and adjudication of immigration benefits applications, thereby leaving law-abiding aspiring
Americans waiting for years in limbo while their applications remain unadjudicated. And,
third, it creates secret exclusions to immigration benefits not authorized by law, resulting in
pretextual (and often unfounded) denials of such benefits. Yet, despite these serious consequences, applicants are never told that their applications have been subjected to CARRPs
processing rules, and they have no opportunity to contest that classification.

I think whats actually

more hurtful to me in the
citizenship process than
the length of time its
taken, is the way some of
us are treated differently.
If everybody was subject
to the same process and
it took everybody a long
time to naturalize, maybe
that would be more understandable. But when
the government picks
people out of the line
and keeps them waiting
for long, long periods of
time, especially when
this seems to be done
on account of peoples
religion or national origin
and when they have been
law-abiding, they do not
deserve this.
- Mahdi Asgari

This chapter will evaluate these three principal problems with CARRP and their legal and policy implications for immigration benefits applicants, particularly naturalization applicants.

a. Problem One: CARRP Disproportionately Impacts

Law-Abiding Immigrants from AMEMSA Communities
and Mislabels Them National Security Concerns
CARRP disproportionately impacts law-abiding AMEMSA immigrants and mislabels them as
national security concerns. Rather than identifying real threats to the United States, CARRP
instead directs USCIS officers to disregard actual statutory eligibility criteria and make determinations about whether an applicant is a national security concern based on a notoriously
overbroad and error-ridden Terrorist Watch List system and other criteria that are discriminatory. As a result, large numbers of Muslims and others from Muslim-majority countries are
ensnared in CARRPs processes. In practice, CARRP works to covertly exclude aspiring Americans in AMEMSA communities from the immigration benefits to which they are entitled.

i. The Terrorist Watch List and FBI Name Check

USCISs reliance on the Terrorist Watch List and the FBI Name Check to identify applicants
that pose a national security concern leads to the unjustified misidentification of many
immigrants as concerns.
As described in Chapter III(a)(i), USCIS automatically deems any applicant on the Terrorist
Watch List a Known or Suspected Terrorist (KST) and, thus, a national security concern,
subject to CARRP. The Terrorist Watch List is not only notoriously overbroad, but the Terrorist Screening Center (TSC), which operates the Watch List, does not require evidence that
would meet ordinary legal standards of proof, such as reasonable suspicion, before a persons
name can be placed on the Watch List. Rather, federal agents can nominate individuals to
the List based on a series of inferences that do not rise to the level of reasonable suspicion,
such as the mere fact that a person comes from a high threat country.155 The elimination of
evidentiary criteria from watchlisting practices makes them highly dependent on religious
and national origin profiling, and thus inherently error-prone.156 Because CARRP relies on the
Terrorist Watch List to identify national security concerns, it replicates the same errors and
profiling inherent in the Watch List.
Muslims Need Not Apply 39

A C L U

S o C a l

L C C R / S F B A Y

CARRPs use
of the Name
Check process
disproportionately
impacts Muslim
immigrants
because of the
FBIs extensive
surveillance and
data collection
on the Muslim
community.

M A Y E R

B R O W N

In addition, USCISs reliance on the FBI Name Check as an indicator of a national security
concern also has a disproportionate impact on AMEMSA immigrants who pose no threat. As
described in Chapter III(a)(ii), if the Name Check produces a positive hit, which can occur
whenever an individuals name is mentioned in the file for a law enforcement investigation
involving terrorism, USCIS may label the applicant a national security concern.
CARRPs use of the Name Check process disproportionately impacts Muslim immigrants
because of the FBIs extensive surveillance and data collection on the Muslim community. For
example, the FBI has engaged in massive programs to interview Muslims living in the United
States, including Muslim immigrants, over the past decade. Sometimes these interviews relate
to ongoing investigations, while in other cases they are simply part of FBI efforts to gather
information about the Muslim population in the United States.157 Records of these interviews,
even if the person was never the subject of an investigation, are electronically stored by the
FBI and will trigger a positive response to the FBI Name Check.158 Similarly, the mere mention
of an applicants name in FBI records or reports of interviews with others will also trigger a
positive response to the FBI Name Check.159 These positive Name Check results can lead USCIS to mislabel applicants as national security concerns.
In addition, other sweeping initiatives of the FBI to gather information on the Muslim population similarly lead innocent Muslim applicants to receive positive FBI Name Check hits,
which can lead USCIS to mislabel them as national security concerns. In particular, the FBI
has engaged in extensive surveillance of the Muslim community through the use of informants. For example, between 2006 and 2007, the FBI utilized an informant named Craig
Monteilh as part of an investigation named Operation Flex in Orange County, California.
Monteilh conducted surveillance at nearly a dozen mosques in Orange County. He spoke
with hundreds of regular mosque attendees and observed many more, both directly and by
copying membership lists from mosque rosters. Through this process, he collected names,
addresses, cell phone numbers, email addresses, car license plate numbers, and other forms
of identifying information.160 Mr. Monteilh shared all of the personal information that he
gathered with the FBI, and it is now part of the FBIs record of the Operation Flex counter-terrorism investigation.161 Under CARRP, an FBI Name Check run on the name of anyone subject
to Mr. Monteilhs information gathering would likely trigger a positive hit and lead USCIS to
mislabel that applicant a national security concern.
As described in Chapter III(a)(ii), a further source of harm to innocent members of the Muslim
communities arises from the relationship between the Name Check process and the FBIs actions against several large Muslim charities. Through its investigations of Islamic charities, the
FBI obtained years of records of lawful financial donations to those charities made by American Muslims. The FBI stores the donors names in files related to investigations of those charities a fact that, by itself, can trigger a positive hit on the FBI Name Check, as it did in Tarek
Hamdis case and likely did in the cases of Reem and Ahmad Muhanna and Jamal Atalla.162

ii. National Origin and Associational Criteria

CARRP also explicitly directs agents to identify applicants as national security concerns
based on inherently discriminatory (and extremely amorphous) criteria. (See Chapter III(a)
(ii) for a description of the criteria.) In particular, CARRP directs officers to rely on national
origin as an indicator of a national security concern, instructing them that [u]nusual travel
patterns and travel through or residence in areas of known terrorist activity can constitute
grounds for finding a concern.163 The broad, discriminatory reach of this instruction is apparent: a USCIS officer could deem an applicant a national security concern because he or

40 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

she, for example, frequently travels to the Middle East to visit relatives, like Abrahim Mosavi,
or was merely born and raised in the Palestinian Occupied Territories before immigrating to
the United States, like Reem and Ahmad Muhanna. This factor could arguably apply to virtually every applicant originally from the Middle East, North Africa, and parts of South Asia,
who would be deemed to have resided in areas of known terrorist activity.
CARRP also permits an applicants associations to give rise to a national security concern if
a family member or close associate is considered to be a national security concern, thus
allowing entire families or closely-knit communities to suffer harmful immigration consequences through its operation. For example, if an applicants spouse is considered a KST and
thus a national security concern, that concern could be imputed to the applicant so long
as the concern could also relate to the applicant.164 As Mahdi Asgaris case illustrates, an
agent applying CARRP could deem a former classmate a close associate, and thereby subject
an entirely innocent persons application to years of delay or pretexual denial.
These national origin and associational criteria necessarily leads USCIS to disproportionately
(mis)label immigrants from AMEMSA communities as national security concerns.

iii. Equating Islam with Terrorism

Over the years,
many Muslim
immigrants and
immigration
lawyers in the Los
Angeles area have
reported to the
ACLU of Southern
California that
USCIS agents
ask extensive
questions about
naturalization
applicants
religious
practices during
naturalization
interviews,
including
questions about
what mosque they
attend and how
often they pray.

Given the obvious disparate impact of the criteria described above, it is unsurprising that, in
practice, CARRPs protocols have led USCIS officials to erroneously equate Muslim religious
observance and practices with evidence of national security concerns during the naturalization process itself.
Over the years, many Muslim immigrants and immigration lawyers in the Los Angeles area
have reported to the ACLU of Southern California that USCIS agents ask extensive questions
about naturalization applicants religious practices during naturalization interviews, including questions about what mosque they attend and how often they pray. The questioning was
so commonplace in Los Angeles that in December 2009 a member of the Los Angeles American Immigrant Lawyers Association (AILA) raised concerns at a Los Angeles District liaison
meeting with then-USCIS District Director Jane Arellano about improper and irrelevant
religious questioning in naturalization interviews.165
Patterns of USCIS agents inappropriately equating lawful religious practices with terrorism
activities have also emerged in several federal court naturalization cases in recent years. For
example, in Hajro v. Barrett, the government argued at trial, among other things, that the applicant, a Bosnian national and Muslim, failed to reveal in his naturalization interview his association with Tablighi Jamaat, an informal Islamic religious practice that teaches talking
with other Muslims about their shared faith and practices and sometimes involves traveling
to other communities.166 Although USCIS implied that Tablighi Jamaat was some sort of
terrorist-related organization, the Court concluded that Tablighi Jamaat was a community of
people practicing an informal religious practice, not an organized entity akin to the types of
groups asked about on the naturalization form and in the interview.167
In addition, as described above in Chapter III(a)(ii), USCIS commonly construes lawful Islamic charitable giving practices as evidence of a national security concern, despite the lack of
any evidence connecting the donors to terroristic intentions, as demonstrated in the cases of
Tarek Hamdi, Jamal Atalla, and Reem and Ahmad Muhanna.

Muslims Need Not Apply 41

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP IN PRACTICE

Ive waited for 13 years

and am very tired of
the endless waiting. In
order to live in the United
States, I must have my
citizenship in order to
have a certain and stable
future. I wished that
one day this problem
would be over because
becoming a U.S. citizen
is my dream. Im 61
years old and have spent
almost 40 years of my
life in the United States
and 21 years in Iran. I
am a stranger in Iran;
the United States is my
home.
Abrahim Mosavi

The U.S. government

never tells you why your
application has been
delayed. In a sense, it is
denying you the dream of
citizenship, without really
denying you citizenship.
But by simply taking a lot
of time which seems
like forever it denies
you that dream.
Mahdi Asgari

42 Muslims Need Not Apply

USCIS denied Reem and Ahmad Muhannas applications for naturalization on grounds
that they could not establish the requisite good moral character to naturalize. It alleged
that their lawful charitable donations to the Holy Land Foundation, prior to it being shut
down, precluded them from showing good moral character, and that they failed to disclose their membership and association with the Holy Land Foundation, even though they
disclosed that they made charitable donations to HLF, attended its fundraisers, and knew
some of its employees (while also making clear that those activities did not make them
members of the organization). Although USCIS presented no evidence that the Muhannas
knew that HLF was engaged in anything but lawful charitable work, USCIS nonetheless
denied their naturalization applications and threatened them with deportation in their
denial letters.

b. Problem Two: CARRP Mandates Endless

Delays in Violation of the Immigration and
Naturalization Laws
CARRP subjects applicants for immigration benefits to inordinate delays in
the processing and adjudication of their applications. As described in Chapter III(b), the policy expressly directs USCIS agents to delay or hold cases in abeyance while they pursue deconfliction and internal or external vetting. Given that CARRP imposes no deadlines for any of
these processes, and that it explicitly forbids the approval of an application even when the
applicant is statutorily eligible for the benefit unless its dictates have been satisfied, CARRP
produces indefinite delays for people awaiting naturalization. Because USCIS is unable to approve the application, it may continue to vet the case until finding a reason to deny or simply
hold it in abeyance indefinitely.168
When applicants subject to these delays inquire with USCIS about the status of their applications, they are typically told that their application is pending administrative checks or
additional security or background checks. Aspiring citizens are thus forced to choose
between endlessly waiting for movement on their applications and filing mandamus lawsuits
(against the country to which they wish to swear allegiance) at great burden and expense.
While they wait, applicants are also deprived of the opportunity to vote and to participate in
the U.S. democratic process, as well as many educational or job opportunities, because they
are not U.S. citizens.

A C L U

Just because I did not

sign an agreement with
the FBI to spy on my
community, Ive not
received my citizenship
and I lost a lot of job
opportunities. I am an
engineer, and many
employers only hire U.S.
citizens. Ive struggled to
afford my family expenses, rent, and credit card
payments. During the
last two years, I went to
the immigration building
but nothing has changed
they just repeat that
my application is pending
further background
checks.
Hassan Razmara

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Tarek Hamdi was granted citizenship by a district court judge in time to vote for President. He proudly
participated in his first American election.

CARRPs instruction to USCIS officers to delay or hold in abeyance applications for immigration benefits violates statutory limitations on processing and adjudication times. In general,
USCIS must adjudicate applications for immigration benefits not later than 180 days after
the date on which the application was filed.169 As described in Chapter II, in the context of
naturalization, an applicant who has not received a decision within 120 days of their examination may sue USCIS for a decision in district court.170 CARRP expressly directs officers to flout
these statutory rules by purporting to authorize them to delay and hold cases in abeyance
without limitation.

Muslims Need Not Apply 43

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Delays in Naturalization Cases Statutory Time Limit 180 Days

YEARS WAITING

10

11

12

13

Statutory Wait Limit

Jamal Abusamhadaneh

granted naturalization by
district court

Mahdi Asgari

granted naturalization by
USCIS

Jamal Atalla

granted naturalization by
district court

Yassine Bahammou

granted naturalization by
USCIS

Samir Ben Hassine

application still pending

Mirsad Hajro

granted naturalization by
district court

Mohammad Hamdan

granted naturalization by USCIS on

administrative appeal

granted naturalization by
district court

Tarek Hamdi
Hussam Kahlil

application still pending

Zuhair Mahmoud

granted naturalization by
district court

Abrahim Mosavi

application still pending

Reem and Ahmad Muhanna

application still pending

Hassan Razmara

application still pending

This chart demonstrates the lengthy delays that each of the naturalization applicants featured in this report
have endured due to CARRP by comparison to the 180-day statutory wait time.

The lengthy nature of these delays violates USCISs statutory obligations, works an obvious
unfairness on the applicants, and makes no sense as a strategy for protecting our national
security. If an individual actually presents some threat to our nation, they are equally dangerous whether they remain here as a lawful permanent resident or as a citizen. At least one
court has already recognized the error in attempting to justify excessive delays by reference
to national security. In Singh v. Still, USCIS argued that its years of delay in processing an
applicants I-485 adjustment of status application was reasonable because it needed additional time to assess sensitive information contained within the FBI Name Check response.171
The Court held that the agencys delay was in fact unreasonable, stating the mere invocation of national security is not enough to render agency delay reasonable per se.172 Notably,
the Court pointed out that the government had made no real effort to advance the security
check on [the applicant] for years until after [the mandamus litigation] was filed and that,
given this inaction, [n]othing in the governments conduct [bespoke] any urgent or serious
concern with national security.173

c. Problem Three: CARRP Creates Secret

Exclusions to Immigration Benefits Not
Authorized by Law and Mandates
Pretextual Denials
CARRP bars applicants deemed to be national security concerns from obtaining immigration benefits even in cases where they are statutorily eligible. As described in Chapter III(e),
under CARRP, no KST may be approved for an immigration benefit, and applicants with nonKST national security concerns may only be approved with supervisory approval. CARRP
44 Muslims Need Not Apply

A C L U

USCIS has
effectively
created its own
set of criteria for
who should and
should not receive
immigration
benefits,
entrusting
itself with the
authority to make
determinations
based on its own
policy dictates
rather than what
the law requires.

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

instructs officers to look for a basis to deny the application of an individual deemed to be a
national security concern, and, if they cannot find a basis to do so, then to indefinitely delay
adjudication.

i. Secret Exclusions
By establishing that no person the agency determines to be a national security concern can
be approved for an immigration benefit except in limited circumstances,174 CARRP has created extra-statutory exclusions that find no support in existing law. The agency has effectively
created its own set of criteria for who should and should not receive immigration benefits,
entrusting itself with the authority authority it does not have to make determinations
based on its own policy dictates rather than what the law requires. To make matters worse,
these determinations are largely unreviewable because USCIS does not tell applicants that
their applications have been subject to CARRP or give them any opportunity to contest that
designation.
From a legal point of view, CARRPs secret exclusions are particularly troubling in the context
of naturalization because any person who meets the statutory criteria is entitled to naturalize.175 Yet, CARRP teaches the opposite: that naturalization is instead a discretionary benefit
to be provided only to those not ensnared in CARRPs overbroad national security criteria, in
clear violation of governing law.176

ii. Pretextual Denials

In order to deny an otherwise approvable application, CARRP instructs officers to look at
certain eligibility factors to find statutory bases for denial. In naturalization cases, CARRP
encourages officers to look for (1) anything that can be construed as false testimony under 8
U.S.C. 1101(f)(6) and 8 C.F.R. 316.10(b)(2)(vi), because such testimony precludes a finding
of requisite good moral character for naturalization, and (2) anything that can be construed
as failure to prosecute an application by failing to respond to a request for evidence under 8
C.F.R. 103.2(b)(13) and 8 C.F.R. 335.7 because failure to prosecute is itself a separate basis
to deny an application.177 As a result, when USCIS makes a decision in a naturalization case
that CARRP prevents it from approving, false testimony and failure to prosecute are often
the statutory and regulatory reasons given for the denial. In practice, such denials are often
factually flawed, legally erroneous, or simply illogical, which is perhaps unsurprising given
that they are pretexts for the undisclosed CARRP-policy decision that the application not be
approved, regardless of the applicants actual eligibility for the benefit.

False Testimony
As a pretextual basis to deny a CARRP case, USCIS very often relies on the false testimony
exception to establish the requisite good moral character. A naturalization applicant can be
found lacking in the requisite good moral character and be ineligible to naturalize if he or
she is found to have intentionally provided false testimony for the purpose of obtaining any
[immigration] benefits.178 False testimony is limited to oral misrepresentations (not omissions or concealments), made under oath, with the subjective intent of obtaining an immigration benefit.179
Analysis of CARRP cases where USCIS has argued that a person is precluded from naturalizing
on account of false testimony reveals a few distinct trends that demonstrate the unfairness of
these decisions.

Muslims Need Not Apply 45

S o C a l

L C C R / S F B A Y

Photo Credit: Mei-Chun Jan

A C L U

We love to donate. We
have been donating to
the Red Cross for any
disaster that happens.
During the Haitian earthquake we were donating
big time. We have an annual donation to the Texas womens shelter here
in Texas. So, this idea
that we are associated
with an organization simply because we donated
to it, didnt cross my
mind. Honestly I thought,
why would I need to list
the Holy Land Foundation
and not the Red Cross or
the Texas womens shelter? I thought a donation
is not an association. I
made this clear to the
immigration officer. I did
donate and I declared it
on my taxes; its not like
Im hiding anything. But
the government rejected
my citizenship saying I
lied when I did not list my
association with the Holy
Land Foundation.
Reem Muhanna

M A Y E R

B R O W N

First, USCIS very often relies on the vagueness and overbreadth of the question
on the N-400 naturalization application about memberships and associations in order to
claim that an applicant subject to CARRP falsely testified. Question 8(a) of the N-400 naturalization application asks applicants, Have you ever been a member of or associated with
any organization, association, fund, foundation, party, club, society, or similar group in the
United States or in any other place? The application asks for a list of those memberships and
associations without specifying a relevant time period. Numerous courts have noted that the
application does not define the terms member or associated,180 and when asked, USCIS
officers notoriously give a range of answers, and sometimes refuse to define the terms at all.181
Because the question is vague and undefined, it is necessarily left open to interpretation by
the individual applicants answering the questions. CARRP, however, directs USCIS officers
to exploit this vagueness in order to assert that an applicant failed to reveal a membership or
association and thereby provided false testimony.
For instance, USCIS often claims in CARRP cases that an applicant failed to disclose an
association or membership with an Islamic organization, whether a charity, organization, or
mosque. Unsurprisingly, USCIS does not make the same claims about Christian, Jewish, or
secular organizations.182

CARRP IN PRACTICE
Exploiting the Vagueness of the Association and Membership Question
In the following cases, USCIS claimed that the applicants provided false testimony because they failed to list all required organizations on the naturalization form, despite the
fact that the applicants were not members of or associated with the organizations by any
reasonable standard and were forthcoming about the nature of their relationships with
these organizations when asked about them.
Tarek Hamdi was accused of providing false testimony for failing to disclose his association with the Islamic charity Benevolence International Foundation on the basis of a single
donation made to the organization.183
Mirsad Hajro was accused of providing false testimony for failing to disclose his association with a religious practice.184
Sami Mizrahi185 was accused of providing false testimony for failing to disclose his
association with the Holy Land Foundation on the basis of the fact that he, at one time,
designed a flyer for them through his graphic design business.
Reem and Ahmad Muhanna were accused of providing false testimony for failing to
disclose their association with the Holy Land Foundation on the basis of the fact that they
made donations, attended fundraisers, and personally knew some of the HLF employees.
Jamal Atalla was accused of providing false testimony for failing to disclose his association with GRF based on some volunteer work and donations he made to the organization.186
Jamal Abusamhadaneh was accused of providing false testimony for failing to disclose
his association and membership with a mosque, the Muslim American Society, and the
Muslim Brotherhood.187

46 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

Second, USCIS often relies on erroneous or misconstrued evidence, usually from the FBI, that
it refuses to disclose, but then uses to support conclusions that an applicant is a national
security concern and that a person falsely testified or is otherwise ineligible to naturalize.
The failure to disclose such information prevents the agency from testing the veracity of the
information, and thereby leaves erroneous assumptions untested in the adjudicative process.

CARRP IN PRACTICE
Reliance on Secret Evidence Not Disclosed to the Applicant

Jamal Abusamhadaneh

Jamal Abusamhadaneh, a Jordanian national and practicing Muslim, was denied naturalization by USCIS on grounds that he failed to disclose his membership or association
with a mosque he attended, the Muslim American Society, and the Muslim Brotherhood.188
USCISs claim that he was a member of the Muslim American Society and the Muslim
Brotherhood was based entirely on an FBI report of a voluntary interview that falsely
stated that a third person had claimed that Jamal belonged to these groups. The USCIS
officer who handled his naturalization application never confronted Jamal with the report
during his naturalization proceedings. As the Court noted in his district court case, Mr.
Abusamhadaneh was never given the opportunity to examine the report and potentially
identify the inaccuracies and explain the source of confusion.189 Had the officer confronted Jamal with the report at the time of his interview, the confusion could have been
resolved at the administrative stage rather than through years of costly litigation that the
government ultimately lost. The Court found the FBI report to be inaccurate and unreliable at trial, and affirmed that Jamal was never a member of the Muslim Brotherhood.190
Tarek Hamdi was denied naturalization by USCIS on grounds that he failed to disclose
his membership or association with the Benevolence International Foundation. Tarek
only learned during the litigation of his case that USCISs claim that he was a member
or associate of BIF was based entirely on an FBI declaration describing an interview he
voluntarily gave to the FBI and a copy of a check he wrote to BIF. As a federal judge later
found, USCIS misconstrued the FBI declaration to mean that Tarek played a leadership
role in the BIF. As in the Abusamhadaneh case, had USCIS confronted Tarek with the FBI
declaration during the administrative process of his case, he could have explained the
inaccuracies and resolved USCISs confusion.

Muslims Need Not Apply 47

A C L U

S o C a l

L C C R / S F B A Y

They never tell you

what the reason is for
the delay. The whole
secrecy about it makes
it so much worse. They
never tell you what the
issue is so that you can
address it. All I can do is
keep inquiring about my
case. Ive sent a dozen
inquires so far. And every
time they just write back
a little paragraph saying
we need to do further
review on your case and
thats it. Why am I being
treated differently than
everybody else? Why is
my application different
from anybody elses? If it
is different, then at least
tell me why.
Mahdi Asgari

M A Y E R

B R O W N

The failure of USCIS to disclose the derogatory information it relies on to deny CARRP applications may violate its obligations under 8 C.F.R. 103.2(b)(16)(i) and (ii). These regulations
require that if a decision will be adverse to the applicant, USCIS must provide the applicant
notice of intent to deny the application and an opportunity to rebut the derogatory information. According to the regulations, the decision itself can only be made on the basis of information contained in the record of proceedings and disclosed to the applicant. In addition, the
USCIS Adjudicators Field Manual states that a petitioner must be afforded an opportunity to
inspect and rebut adverse information.191 USCISs failure to disclose derogatory information
to applicants in such cases also likely violates an applicants due process rights.192
Third, USCIS routinely ignores even in litigation of CARRP naturalization cases the legal
requirement that any false testimony must be accompanied by the subjective intent to
obtain an immigration benefit in order to serve as a basis to deny naturalization.193 Time and
again, USCIS agents assert false testimony to justify denials absent any evidence that the applicant had the requisite intent to falsely testify. Such decisions are particularly absurd in the
numerous cases where applicants evidently make every effort to be as accurate, forthcoming,
and truthful as possible in answering the membership and association question.

Finally, after three years of waiting and as this report went to print, Mahdi Asgari learned that USCIS had finally
decided to grant his application and swear him in as a U.S. citizen.

48 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

CARRP IN PRACTICE
Ignoring the Requisite Legal Standard that Applicants Intentionally Testify Falsely to Obtain
an Immigration Benefit
In the following cases, USCIS argued that the applicant falsely testified despite clear evidence in the
administrative record that the applicant was forthcoming and could not have intentionally lied.
In the case of Jamal Abusamhadaneh, USCIS argued that he failed to disclose his membership at
a mosque, even though he was forthcoming about explaining that he attended the mosque but was
not a formal member. Though the USCIS officer handling his case testified in court that normally
she would not generally expect an applicant to answer Question 8(a) listing his church or mosque
membership,194 she nonetheless asked him in his interview, Are you a member of a church or a
mosque or anything like that, and he responded No. I visit the mosque but I am not a member.195
Even though Jamal made clear to the officer his own definition of the terms membership and
association in the interview and was forthcoming with details describing his relationship with the
mosque and why he was not a formal member, USCIS nonetheless denied his application because
he failed to disclose his membership.196
In the case of Mirsad Hajro, USCIS argued that he falsely testified by failing to disclose his service
in the Bosnian army and a local defense group, his participation in a Muslim religious practice, and
that he carried an AK-47 when working with the local defense group.197 In analyzing each of USCISs
claims, the court rejected them as unfounded, noting that question 8(a) did not ask about military
service and that, far from attempting to hide information, Mirsad had voluntarily disclosed information about his military service, religious practice, and the fact that he carried an AK-47 during the
military service.198
In the case of Tarek Hamdi, USCIS argued that he falsely testified by failing to disclose that his
membership or association with the Benevolence International Foundation, despite the fact that
Tarek voluntarily disclosed in the administrative process that he gave money to the BIF and explained
that the donation did not make him a member or an associate of the organization. The court rejected
USCISs claims and granted him citizenship.
In the case of Jamal Atalla, USCIS argued that he falsely testified by failing to disclose his membership or association in the Global Relief Foundation, despite the fact that he voluntarily disclosed
in detail, in multiple interviews, his volunteer activities and charitable donations to the organization
and that he did not consider himself a member or associate of the organization.199 The court found
[e]ven if he should have thought that his level of involvement with Global Relief Foundation counted
as being associated with it, his specific disclosures were far more important than this quarrel over
what label to put on those disclosures. . . . USCISs attempt to find deception by ignoring the most
important parts of what was said does not comport with the reality of oral communication or with
common sense.200
In the cases of the MUHANNAS, which are still pending on administrative appeal, USCIS acknowledged in its denials of their naturalization applications that Reem and Ahmad discussed in their interviews that they made donations to the Holy Land Foundation, that they had attended a fundraiser,
and provided extensive details about the leaders of the Holy Land Foundation that they knew and how
they knew them. Nonetheless, USCIS claimed in denying their naturalization application that they
failed to disclose their membership and association with the organization.

Muslims Need Not Apply 49

A C L U

S o C a l

L C C R / S F B A Y

USCIS heavily
relies on false
testimony as
grounds to deny
naturalization
applications
subject to CARRP.
Because the
policy requires
officers to find a
basis to deny an
application subject
to CARRP, the
false testimony
grounds for
lacking the
requisite good
moral character
is the easiest
statutory ground
to assert because
it is relatively
amorphous.

M A Y E R

USCIS heavily relies on false testimony as grounds to deny naturalization applications

subject to CARRP. Because the policy requires officers to find a basis to deny an application
subject to CARRP, the false testimony grounds for lacking the requisite good moral character
is the easiest statutory ground to assert because it is relatively amorphous. Because USCIS is
intent on finding any basis to deny the application, its claims of false testimony in CARRP cases are often wholly implausible. This deliberate distortion of an otherwise legitimate
standard for establishing a persons good moral character actually discourages honesty, as the
Court in Hajro noted.201 Ultimately, no matter how an applicant answers the naturalization
questions, the agency will nonetheless be forced to find some basis to deny the application
under CARRP or delay its resolution indefinitely.

Failure to Prosecute
USCIS also sometimes
uses the pretext that an
applicant failed to fully
comply with a Request for
Evidence as another tactic
for denying applications
in CARRP cases. USCIS
will often issue multiple
Requests for Evidence to
applicants in transparent attempt to create a
greater likelihood that the
applicant will not fully
respond, thereby enabling
the agency to deny the
application under 8 C.F.R.
103.2(b)(13) and 8 C.F.R.
335.7.
In many cases where an
applicant is statutorily
eligible for a benefit, CARRPs secret exclusions lead
the agency to simply delay
adjudication of the immigration benefit application as long as possible.
But when forced to make
a decision, USCIS will
deny the application for
pretextual reasons, very
often on grounds that the
applicant falsely testified
or failed to prosecute his
or her application.

50 Muslims Need Not Apply

B R O W N

CARRP IN PRACTICE
Pretextual Denials on Failure to Prosecute Grounds
USCIS denied Abrahim Mosavis naturalization application, ten years after he filed his application, on grounds that
he failed to provide information in response to an RFE that
the agency never requested. The agency claimed he failed
to prosecute his application under 8 C.F.R. 335.7. Abrahim
appealed, explaining that their decision was in error because he could not have provided evidence that USCIS never
requested. Two years later, in August 2012, the agency
denied Abrahims appeal on a different ground, stating that
in February 2010 it had denied Abrahims N-400 application
on grounds he was continuously absent from the United
States from November 15, 2008 through June 6, 2010.
This statement was not only false because he had not been
denied on those grounds, but also illogical. USCIS could not
have concluded in February 2010 that Abrahim was absent
from the country into the future. He is still waiting for a final
determination on his naturalization application.
USCIS initially denied the naturalization application of
Mohammad Hamdan, a board member of a Los Angeles
mosque, based on the claim that he failed to completely
respond to a request for evidence that sought copies of the
past five years of business licenses for his dentistry business. Although he produced all of the requested documents,
USCIS argued that because one license was registered two
months late, he had failed to prosecute his application by
failing to provide evidence of a license to cover the missing
two months. Mohammad appealed the decision, explaining
that he in fact had provided all the business licenses for the
period in question and that the late-registered license retroactively applied to the missing two months. After waiting
for five and a half years, the agency ultimately granted his
naturalization application.

A C L U

In sum, CARRP
has mandated
delays in
processing and,
ultimately, denials
in many cases
involving AMEMSA
immigrants,
even though the
applicants are
lawfully entitled to
the benefits they
seek.

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

In sum, CARRP has mandated delays in processing and, ultimately, denials in many cases involving AMEMSA immigrants, even though the applicants are lawfully entitled to the benefits
they seek. USCIS officers identify national security concerns through criteria, watchlists,
and other screening mechanisms that overwhelmingly rely on national origin, religious activity, and other factors that simply identify members of the AMEMSA community, not people
who actually pose a threat to our nation. By permitting and, usually, requiring that USCIS
delay (without end) the adjudication of applications subject to its rules, CARRP violates the
statutory time limits mandated by immigration law, particularly in the context of naturalization. It also makes little sense as a matter of policy: if applicants subject to CARRP are truly
national security concerns, then our government should act with expediency in such cases,
rather than simply delaying any action for years at a time. Finally, by prohibiting certain applicants from being approved for immigration benefits, despite their statutory eligibility, USCIS
has given itself authority to wield a power over the immigration process that properly belongs
only to Congress the power to make the laws governing naturalization and immigration. By
giving itself the authority to deny applications based on secret criteria that it never discloses,
USCIS denies applicants the fairness they are due under the Fifth Amendment to the U.S.
Constitution and applicable immigration regulations.

Muslims Need Not Apply 51

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

V. C
 ARRPe Diem: Practice Pointers for
Immigration Lawyers

At present, there
is no way to
receive formal
confirmation
from the federal
government that
it has labeled a
person a KST.
Thus, the best
and perhaps only
way to determine
whether USCIS
will consider your
client a KST is
through travel
experiences.

The following practice pointers are designed to help immigration lawyers navigate the immigration benefits adjudication process and protect their clients in CARRP cases.

1. Determine if your client has been or will be considered a national

security concern and, thus, CARRPd.
Only by identifying the risk factors for a case to be subject to CARRP can you prepare your
clients for what to expect, including delays and pretextual denials. More importantly, doing so
will help you best prepare applications in a way that minimizes the risk that USCIS will find a
statutory basis to deny the application.

a. Will your client be considered a Known or Suspected Terrorist

(KST) national security concern?
At present, there is no way to receive formal confirmation from the federal government that it
has labeled a person a KST. Thus, the best and perhaps only way to determine whether USCIS
will consider your client a KST is through travel experiences. Remember, a KST is anyone
whose name appears on the Terrorist Watch List. If your client has had any of the following
experiences, he or she is likely on the Terrorist Watch List and thus considered a KST:

Applicant has repeatedly been subject to secondary inspection upon entering the United
States from travel abroad.

Applicant has been subject to secondary inspection prior to boarding a flight over U.S.
airspace.

Applicant has the code SSSS listed on his or her boarding pass.

Applicant is unable to check in for flights online or at airline electronic kiosks at the airport.

Applicant has been prohibited from boarding a commercial flight over U.S. airspace.

Of course, relying on travel patterns to determine whether an individual is likely considered a

KST can be imprecise, particularly if the individual has not recently traveled by plane or made
any recent return trips to the United States. Nevertheless, when preparing an application for
immigration benefits, interviewing your clients about past travel experience may be the best
available practice to identify whether KST issues may arise in your case.

b. Will your client be considered a non-Known or Suspected Terrorist

(non-KST) national security concern?
Even if the federal government has not classified your client as a KST, USCIS may still identify a supposed national security concern and process the case under CARRP. To determine
whether your client may be considered a non-KST national security concern, carefully
review your clients background to identify anything that could trigger a concern under
the CARRP policy. In general, you will want to evaluate whether the FBI is likely to have any
records that mention your client and that are related to a national security investigation. The
following are examples of factors an attorney can identify in a client interview that may either together or in isolation cause USCIS to label your client a national security concern:

Muslims Need Not Apply 53

A C L U

S o C a l

L C C R / S F B A Y

In general, you will

want to evaluate
whether the FBI
is likely to have
any records that
mention your
client and that
are related to a
national security
investigation.

M A Y E R

B R O W N

Applicant has given a voluntary interview to the FBI in connection with a national security
investigation (or as part of general information gathering about the Muslim community).

Applicant has donated money to an Islamic charity that was later designated by the
Treasury Department as a financier of terrorism and/or whose leaders were prosecuted
for providing material support to terrorists. These charities include, but are not limited
to, the Holy Land Foundation, the Global Relief Foundation, Benevolence International
Fund, Al Haramain Foundation, Islamic American Relief Agency, and Goodwill Charitable
Organization.

Applicant has been subject to pretextual law enforcement investigations after applying
for an immigration benefit.

Applicant has attended a mosque known to be under FBI surveillance.

Applicant is related to or in any way associated with a KST or person believed to be

a national security concern, such as: (1) a person who was prosecuted or placed in
removal proceedings for providing material support to terrorists; (2) a person who is on
the No Fly List or Selectee List of the Terrorist Watch List (as evidenced by problems they
have when attempting air travel); (3) a person whom the federal government has placed
on the Specially Designated Nationals list of the Office of Foreign Assets Control; or (4)
a person who is otherwise subject to FBI or other law enforcement investigation for any
national security-related reason.

Applicant is from or has traveled in a country known for terrorist activity.

Applicant has been party to monetary transactions with people or entities in states under
U.S. sanctions.

Applicant has particular technical skills, such as foreign language expertise or knowledge
of radio, cryptography, weapons, nuclear physics, chemistry, biology, pharmaceuticals,
and computer systems.

Applicant is Muslim or perceived to be Muslim.

By at least asking your clients whether any of these (admittedly vague) factors apply to them,
you may at least be able to assess the risk of the case being processed under CARRP, and thus
prepare yourself, and your clients, accordingly.

2. Has your client been CARRPd? Signatures of a CARRP case.

Although you may have identified the risk that your clients case might be subject to CARRP,
there is no way to know for sure because USCIS, to date, does not disclose whether it has
labeled an individual a national security concern or whether the case has been subject to
CARRP. However, the following are good indicators that a case has been placed on a CARRP
track and will not be treated as routine adjudication.
Processing and adjudication has been inordinately delayed.

54 Muslims Need Not Apply

The FBI visited the client sometime after the client filed the immigration benefit application, in connection or apparent connection with that application.

The applicant has already been interviewed, but no decision has been issued, and USCIS
says the delay is due to pending security checks or administrative checks.

The applicant was subject to more than one interview and/or multiple requests for evidence.

The application was denied on specious grounds that appear pretextual.

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

3. Protect your client against allegations of

false testimony in naturalization interviews.
CARRP cases pose particular difficulties for lawyers and their clients because, as long as the
agency deems the applicant to be a national security concern, the entire adjudicative process is oriented towards finding any conceivable basis to deny the application.

CARRP cases
pose particular
difficulties for
lawyers and their
clients because,
as long as the
agency deems the
applicant to be a
national security
concern, the
entire adjudicative
process is oriented
towards finding
any conceivable
basis to deny the
application.

Therefore, in naturalization interviews in cases likely subject to CARRP, we recommend that

you consider instructing your clients to follow these general principles:
Answer all questions asked and be forthcoming with information, even if the question
does not appear to directly ask for that information.
Remember that to prove that an applicant falsely testified, USCIS has to show that the
applicant did so with the intent to gain an immigration benefit. Voluntarily disclosing
information and being forthcoming in providing answers to questions asked in the
interview will ultimately help the applicant demonstrate that he or she did not intend to
deceive the agency.

Clarify the definition or meaning of the terms association, membership, and any other
vague terms or questions used by the examining officers. Be especially thorough answering any and all questions about associations, memberships, and affiliations in reference
to question 8(a) on the naturalization application. For instance, although to most people
a mere donation to a charity may not qualify as an association with or a membership
in that charity, providing information about charitable giving may help prevent the examining officer in a CARRP case from arguing that your client testified falsely in response to
question 8(a).
Note: Lawyers should carefully vet their clients background and potential responses to
the question about memberships and associations to ensure that their clients statements
will not subject them to removal proceedings.

Ask USCIS to videotape the interview.

Video recording is your friend it will ensure that there is a clear record of everything
asked and answered during the interview, a record that will be vital to your clients ability
to successfully challenge any denial based on false testimony in district court.

Accompany your client to all interviews.

If possible, bring another lawyer or paralegal to take copious notes of the questions asked
and answers given. Those notes will become an important record of the interview in the
event that USCIS refuses to videotape the interview and then ultimately claims the client
falsely testified. The note taker can also be a witness to statements made, should litigation
in district court be required.

If your client remembers additional information not previously disclosed in the interview,
it is important for him to provide that information as soon as possible either during the
course of the interview or subsequently, so that the omission is not deemed an intentional misrepresentation for the purposes of obtaining an immigration benefit.

Do not refuse to answer questions or walk out of naturalization interviews unless necessary to avoid greater exposure (such as to avoid removal proceedings).
Refusing to answer questions can itself constitute a basis for denying a naturalization
application.202 Similarly, walking out of a naturalization interview or refusing to answer
questions could be deemed failure to exhaust all administrative remedies or failure to
prosecute an application, which also can be a basis for denial of the application.203

Muslims Need Not Apply 55

A C L U / S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

4. Meticulously respond to any Request for Evidence.

In responding to Requests for Evidence, be meticulous and thorough. If requested evidence
does not exist, explain why and add that the nonexistence of that information cannot be
held against the applicant. Remember that USCIS will be looking for anything that could be
deemed a failure to completely respond to the RFE in order to deny the application on the
grounds that the applicant failed to prosecute his or her application under 8 C.F.R. 335.7 and
8 C.F.R. 103.2(b)(13).

5. Protect any potential CARRP client from removal proceedings, benefit

rescission or termination, or criminal prosecution.
Remember that CARRP directs USCIS officers not only to find a basis to deny applications,
but also to pursue removal proceedings and criminally prosecute wherever possible. Be familiar with your clients history from the outset so that you can ensure that you are not exposing
your client to the possibility of removal proceedings or criminal prosecution. Pay particular
attention to anything in your clients history that could be deemed material support of
terrorism.204 Also pay careful attention to prior immigration violations, and fraud or false
statements on immigration applications.

If the FBI or other

law enforcement
agencies seek
to speak with
your client after
she files for an
immigration
benefit, advise
your client not to
speak with them
unless you or
another lawyer can
be present.

6. Ensure that clients do not speak with the FBI or other law enforcement
agents without you or another lawyer present.
If the FBI or other law enforcement agencies seek to speak with your client after she files
for an immigration benefit, advise your client not to speak with them unless you or another
lawyer can be present. Remember that CARRP instructs USCIS to rely on derogatory information provided by the FBI and to look for bases to deny the application and initiate removal
proceedings. Therefore, any interview provided to the FBI or other law enforcement agencies
will most likely be used in the adjudication of the application. USCIS may use an FBI agents
report of an interview to find discrepancies between statements given to the FBI and statements given during naturalization interviews to support a false testimony claim. Voluntary
FBI interviews are not generally recorded; therefore, the only record created of the interview is
usually the FBI agents own recitation of what took place and what the individual said.
A lawyer should first assess whether it is in the clients interest to give the interview. You
should first talk to the FBI agent about the reasons for the interview and the questions they
want to ask. Ask whether your client is the subject of an investigation and, if so, if a United
States Attorney has been assigned to the investigation. Do not agree to open-ended fishing
expeditions during interviews. After establishing the FBIs stated reasons for the interview,
evaluate whether it is in the clients interest to give the interview and discuss it with the client.
If the client wants to do the interview, arrange for the interview to take place at your office. Do
not agree to hold interviews at the FBIs office, the clients home, or a public place.

7. Recognize that mandamus actions may force denials in CARRP cases.

Lawyers should be particularly aware of the risks associated with filing a mandamus action to
compel an agency decision in a CARRP case. While a mandamus action can force the agency
to make a decision rather than delay, if a court remands it back to the agency to make the
decision, the agency will almost certainly deny any application subject to CARRP. Lawyers
and their clients should be prepared for what they would do in the event of a denial, including
whether they would be prepared to appeal the decision or file for de novo review in federal
court under 8 U.S.C. 1421(c).

56 Muslims Need Not Apply

A C L U

Remember
that in CARRP
cases USCIS
will typically not
disclose whatever
derogatory
information they
believe makes your
client a national
security concern.

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

8. Think creatively about how to use due process protections

in immigration law to protect your client.
Remember that in CARRP cases USCIS will typically not disclose whatever derogatory information they believe makes your client a national security concern. Very often such derogatory information is erroneous or misinterpreted by USCIS or other federal agencies, and has
no bearing on an individuals eligibility for the immigration benefit. Think creatively about
ways to uncover the derogatory information, so that you may contest it and, ideally, change
the agencys position.
For example, you may argue that the Inspection of Evidence provision of 8 C.F.R. 103.2(b)
(16)(i) and (ii) requires USCIS to provide a notice of intent to deny, fully disclose any adverse
information, and provide the applicant an opportunity to rebut the derogatory information
prior to adjudication. Similarly, you could also argue that procedural due process compels
USCIS to at least provide naturalization applicants notice that their applications have been
subject to CARRP and an opportunity to contest any CARRP classification.
You may also want to try to build a record that USCIS has applied CARRP to your clients case.
Doing so may help demonstrate that the case has been subject to unauthorized delays and
criteria not relevant to your clients eligibility to naturalize. If your client is ultimately denied
naturalization, such a record could also help support the claim that your client is actually
statutorily eligible, but was denied the benefit simply because the policy required it. Consider whether there are ways to compel USCIS to disclose whether the case has been subject to
CARRP, either through a FOIA request, obligations to disclose your clients A-file, or, if applicable, through immigration court discovery procedures. If you are able to receive your clients
A-file through any of these methods, an unusually high number of redactions may be a clue
that your clients case has been processed under CARRP. Furthermore, look for the following
designations among any official TECS/IBIS or NCIS documents in the A-file, which are indicators that USCIS will treat your client as a national security concern:
TECS/IBIS Table Code

Code Description

SF

TSA No Fly List

SK

Known Terrorist

ST

Suspected Terrorist

SX

Associate of Terrorist

NCIC Offense Code

Code Description

0103

Espionage

0104

Sabotage

0105

Sedition

5299

Weapons/Explosives

9. Dont be afraid to make a federal case of it.

Immigration practitioners should also seriously consider the benefits of challenging lengthy
delays and implausible denials in federal court. To date, district courts throughout the country have favorably ruled for naturalization applicants whose cases appeared to have been
subject to CARRP at the administrative level, and they have awarded attorneys fees to the
successful litigants (at the Equal Access to Justice Act (EAJA) rates) in at least some of those
cases.

Muslims Need Not Apply 57

A C L U

S o C a l

L C C R / S F B A Y

58 Muslims Need Not Apply

M A Y E R

B R O W N

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

VI. CONCLUSION

The fairness and

non-discrimination
that aspiring
Americans expect
from the U.S.
government
when they apply
to naturalize or
permanently
immigrate to the
United States
must not reside
exclusively in the
courts.

It wasnt until the day after I was sworn in as an American citizen that I actually started to
feel like a citizen of this country. I truly did feel a change. Even though I have lived here for
over 34 years, I feel like I belong, Im official now.
Tarek Hamdi
Because of CARRP, it took Tarek eleven years to finally receive the U.S. citizenship that he
had earned long before. Only because he took his case to court, taking the decision out of the
hands of USCIS and entrusting it to the judicial system, which simply applied the legal requirements for naturalization, did he ultimately receive a fair adjudication of his application.
The fairness and non-discrimination that aspiring Americans expect from the U.S. government when they apply to naturalize or permanently immigrate to the United States must not
reside exclusively in the courts. USCIS can and must ensure that its policies comport with the
Constitution and laws it is sworn to protect and administer. If we ask our newest citizens to
take a meaningful oath to uphold the principles of the U.S. Constitution and be well disposed to the good order and happiness of the United States, we must ask the very agency that
administers that oath to do the same.

Tarek Hamdi, after being sworn in as an American citizen.

Muslims Need Not Apply 59

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

End Notes
1 Under federal immigration law, persons who have been residing in the United States as lawful permanent
residents may become United States citizens through a process known as naturalization.
2 This report will refer to the AMEMSA community to describe the community of immigrants who experience discrimination on account of their Muslim identity, perceived Muslim identity, or other identify
categories whether race, ethnicity, or national origin that cause them to be perceived as threatening or
somehow associated with terrorism.
3 On the eve of publication of this report, USCIS informed Mahdi that it had granted his naturalization application and would swear him in as a U.S. citizen. As this report explains, under CARRP, USCIS would not
have approved Mahdis application unless it was able to resolve the supposed national security concern
that caused it to hold up his application in the first place. While USCIS obviously came to the correct conclusion that he was not a national security concern and his application could be approved, it does not
make up for the harm he suffered waiting years for a decision while his application was subject to CARRP.
4 S
 ee 8 U.S.C. 1422 (adopted in 1952) (The right of a person to become a naturalized citizen of the United
States shall not be denied or abridged because of race or sex or because such person is married.).
5 Complaint for Declaratory and Injunctive Relief, Am. Civil Liberties Union of S. Cal. v. U.S. Citizenship &
Immigration Servs., No. 13-861 (D.D.C. filed June 7, 2013).
6 S
 ee Spencer S. Hsu & N.C. Aizenman, FBI Name Check Cited in Naturalization Delays, Wash. Post,
June 17, 2007, available at http://www.washingtonpost.com/wp dyn/content/article/2007/06/16/
AR2007061601360.html.
7 S
 ee 8 C.F.R. 335.2(b) (stating FBI criminal background checks confirm whether or not an applicant has
an administrative or criminal record); Office of Inspector Gen., Dept of Homeland Sec., A Review of U.S.
Citizenship and Immigration Services Alien Security Checks 4 (2005) (The legacy INS queried the main files
since 1985 but added reference files to security checks in 2002.), available at http://www.oig.dhs.gov/
assets/Mgmt/OIG_06-06_Nov05.pdf.
8 S
 ee Robert J. Garrity, Jr., Acting Assistant Director, Records Management Division, Federal Bureau of Investigation, Statement Before the House of Representatives Committee on Government Reform, July 10, 2003,
http://www.fbi.gov/news/testimony/the-fbis-visa-name-check-process (The searches seek all instances
of the individuals name and close date of birth, whether a main file name or reference. By way of explanation, a main file name is that of an individual who is, himself, the subject of an FBI investigation, whereas a reference is someone whose name appears in an FBI investigation. References may be associates,
witnesses, conspirators, or a myriad of other reasons may exist to explain why an FBI Agent believed it
important to index a particular name in an investigation for later recovery.); see also Hsu, FBI Name Check
Cited in Naturalization Delays, supra note 6 (A policy decision was made to check applicants names not
only against the list of individuals under investigation by the FBI but also against the list of those named in
investigative files for any reason.).
9 
Citizenship and Immigration Services Ombudsman Annual Report 2006, at 23, available at www.dhs.gov/cisombudsman (last visited May 31, 2013); Citizenship and Immigration Services Ombudsman Annual Report 2007, at
37, available at www.dhs.gov/cisombudsman (last visited May 31, 2013).
10 8 U.S.C. 1571(b) (It is the sense of Congress that the processing of an immigration benefit application
should be completed not later than 180 days after the initial filing of the application[.]).
11 See, e.g., Kolhatkar. v. Filip., No. 07-01394-DOC (C.D. Cal. filed Dec. 4, 2007) (class action on behalf of
naturalization applicants subject to FBI name check delays within the jurisdiction of the Los Angeles
Field Office); Roshandel v. Chertoff, No. 07-1739 MJP (W.D. Wa. filed Oct. 29, 2007) (same for naturalization
applicants residing in the Western District of Washington); Yakubova v. Chertoff, No. 06-3203-ERK (E.D.
NY filed June 28, 2006) (same for naturalization applicants in five NY state counties); see also Mocanu v.
Mueller, 2008 WL 372459, at *1 (E.D. Pa. Feb. 8, 2008), order corrected 2008 WL 570953 (E.D. Pa. Feb. 28,
2008) (holding that the FBI name check has caused unreasonable delays and that USCIS needed to initiate
notice and comment procedures due to its revised name check regulation).
12

See Natl Immigration Law Center, Press Release, Hundreds of Immigrants Will Finally Become U.S. Citizens, Nov. 9, 2009, available at https://nilc.org/natdelay.html.

13 8 U.S.C. 1423 and 1427(a).

14 The applicant must have resided continuously in the United States for five years (or three years if married
to a U.S. citizen) immediately preceding her application to naturalize. She must have been physically present in the United States at least half of that time, and must have resided within the state or USCIS district
in which she filed her application for at least three months. Id. 1427(a)(1); see 8 C.F.R. 316.5.
15 8 U.S.C. 1427(a)(3); see 8 C.F.R. 316.2(a)(7) and (b); id. 316.10-316.11; see also United States v. Hovsepian, 359 F.3d 1144, 1168 (9th Cir. 2004) (en banc).
16 8 U.S.C. 1101(f ).
17

See, e.g., Plewa v. INS, 77 F. Supp. 2d 905, 913 (N.D. Ill. 1999) (citations omitted).

18 8 U.S.C. 1445; 8 C.F.R. 334.2.

19 8 U.S.C. 1446(a); 8 C.F.R. 335.1.
60 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

20 8 C.F.R. 335.2(b).
21 U.S. Citizenship & Immigration Servs. Acad., CARRP Officer Training: National Security Handouts, Guidance for Identifying National Security Concerns 3 (2009) [hereinafter Guidance for Identifying National
Security Concerns], available at https://aclusocal.org/wp-content/uploads/2013/01/Guiance-for-Identifying-NS-Concerns-USCIS-CARRP-Training-Mar.-2009.pdf.
22 8 C.F.R. 335.2(a).
23 Id. 335.2(c).
24 8 U.S.C. 1446(d).
25

 C.F.R. 335.3 (USCIS shall grant the application if the applicant has complied with all the requirements
8
for naturalization. . . .) (emphasis added).

26

Id. 335.3.

27

See also Hovsepian, 359 F.3d at 1151-52.

28 H.R. Rep. No. 101-187, at 8 (1989); 135 Cong. Rec. H4539-02, H4542 (1989) (statement of Rep. Morrison).
29

See 8 U.S.C. 1571(a), 1572 and 1573.

30

Id. 1572(1).

31 Guidance for Identifying National Security Concerns, supra note 21, at 2-3.
32 Memorandum from Jonathan R. Scharfen, Deputy Director, U.S. Citizenship & Immigration Servs., to
Field Leadership, U.S. Citizenship & Immigration Servs., Policy for Vetting and Adjudicating Cases with
National Security Concerns 1 n.4 (Apr. 11, 2008) [hereinafter Policy for Vetting and Adjudicating Cases with
National Security Concerns], available at https://aclusocal.org/wp-content/uploads/2013/01/CARRP-Policy-for-Vetting-and-Adjudicating-Cases-w-NS-Concerns-Apr.-11-2008.pdf.
33 CARRP does not apply to the following applications: I-129F (Petition for Alien Fianc/e, I-130 (Petition
for Alien Relative), I-140 (Immigrant Petition for Alien Worker), I-360 (Petition for Amerasian, Widow(er),
or Special Immigrant), I-526 (Immigrant Petition by Alien Entrepreneur), I-600/I-800 (Petition to Classify
Orphan as an Immediate Relative/Petition to Classify Convention Adoptee as an Immediate Relative), and
I-824 (Application for Action on an Approved Application or Petition). The USCIS PowerPoint training on
CARRP specifically states that it does not apply to I-360 petitions with respect to religious workers, thus
leaving unclear whether it only excludes those I-360 petitions on behalf of religious workers or whether it
also excludes every other type of I-360 applicant. See U.S. Citizenship & Immigration Servs., PowerPoint v.
1.1, Fraud Detection & National Security Controlled Application Review and Resolution Program (CARRP)
Independent Study 28 (Dec. 28, 2011) [hereinafter FDNS CARRP PowerPoint v. 1.1], available at https://
aclusocal.org/wp-content/uploads/2013/01/FDNS-CARRP-Independent-Study-Powerpoint-v.-1.1Dec.-28-2011.pdf. USCIS directs immigration officers to refer to the relevant Operational Guidance when
adjudicating petitions that involve national security or public safety concerns but are petitions that do not
convey immigrant or non-immigrant status, applications for employment authorization, applications for
travel authorization, applications to replace lawful permanent resident cards, and Santillan cases. Policy
for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 3; see Santillan. v.
Gonzales, 388 F. Supp. 2d 1065 (N.D. Cal. 2005) (class action involving persons granted lawful permanent
resident (LPR) status by the Justice Departments Executive Office of Immigration Review for whom
USCIS failed to timely issue evidence of LPR status).
34 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 1 n.1.
35 8 U.S.C. 1182(a)(3)(A), (B), and (F), and 1227(a)(4)(A) and (B).
36

Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 1 n.1.

37 Guidance for Identifying National Security Concerns, supra note 21, at 2-3 (referencing 8 U.S.C. 1182(a)
(3)(A), (B), and (F), and 1227(a)(4)(A) and (B)).
38

For example, the policy specifically mentions testimony elicited during an interview; review of the petition or application including supporting documents, the A-file or related files; leads from other U.S.
government agencies or foreign governments; and other sources, including open source research. Id. at 3.

39 8 C.F.R. 335.2(b); see also U.S. Citizenship & Immigration Servs., Policy Manual, vol. 12, part B, chapter 2
(regarding background and security checks prior to the naturalization examination), available at http://
www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartB-Chapter2.html#text:note-IDALN4OH.
40

Guidance for Identifying National Security Concerns, supra note 21, at 2.

41 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 1 n.3; see Timothy Healy, Director, Terrorist Screening Ctr., Fed. Bureau of Investigation, Statement Before the Senate Committee on Homeland Security and Governmental Affairs (Mar. 10, 2010) (stating that the Terrorist Watch List
is synonymous with the Terrorist Screening Database), available at http://www.fbi.gov/news/testimony/
the-lessons-and-implications-of-the-christmas-day-attack-watchlisting-and-pre-screening.

Muslims Need Not Apply 61

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

42 CARRP directs officers to confirm that the KST hit relates to the applicant and to confirm that match
with the Terrorist Screening Center (TSC) (to ensure it is the same person). If the KST hit relates to the
applicant, CARRP will then govern the adjudication of their case. If it does not, the case will proceed to
routine adjudication.
43

Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 1 n.3.

44 Healy, Statement Before the Senate Committee on Homeland Security, supra note 41(stating that CLASS and
TECS accept nearly all records from the TSDB).
45 Fed. Bureau of Investigation, Terrorist Screening Center: Frequently Asked Questions, http://www.fbi.gov/
about-us/nsb/tsc/tsc_faqs (last visited July 15, 2013).
46

Id.

47 U.s. Govt. Accountability Office, Gao-06-1031, Terrorist Watch List Screening: Efforts To Help Reduce Adverse
Effects On The Public 8-9 (2006), available at http://www.gao.gov/new.items/d061031.pdf.
48

Id. at 7.

49 Healy, Statement Before the Senate Committee on Homeland Security, supra note 41.
50

Id.

51

Id.

52 U.s. Govt. Accountability Office, Gao-08-110, Terrorist Watch List Screening: Opportunities Exist To Enhance
Management Oversight, Reduce Vulnerabilities In Agency Screening Processes, And Expand Use Of The List 22
(2007), available at http://www.gao.gov/new.items/d08110.pdf.
53 CNN.com, Mandela Off U.S. Terrorism Watch List, July 2, 2008, http://www.cnn.com/2008/WORLD/africa/07/01/mandela.watch/.
54

Healy, Statement Before the Senate Committee on Homeland Security, supra note 41.

55

Gao, Terrorist Watch List Screening, supra note 52, at 30-31.

56

Healy, Statement Before the Senate Committee on Homeland Security, supra note 41.

57 Transp. Sec. Admin., Secure Flight Program, http://www.tsa.gov/stakeholders/secure-flight-program (last

visited July 16, 2013).
58

 ee Joseph S. Szyliowicz, Safeguarding Critical Transportation Infrastructure: The US Case, 28 Transport

S
Policy 69, 71 (2013).

59

Gao, Terrorist Watch List Screening, supra note 52, at 35.

60 Fed. Bureau of Investigation, Terrorist Screening Center: Frequently Asked Questions, http://www.fbi.gov/
about-us/nsb/tsc/tsc_faqs (last visited July 15, 2013) (noting that the Terrorist Screening center cannot
reveal whether a particular person is in the [Terrorist Screening Database], which includes the No-Fly and
Selectee lists); see also Gordon v. Fed. Bureau of Investigation, 388 F. Supp. 2d 1028, 1037 (N.D. Cal. 2005)
(holding that the FBI was not required to confirm whether or not the plaintiffs names were included on
the No-Fly list or other aviation watch lists).
61 See, e.g., Sarah Kehaulani Goo, Senator Kennedy Flagged by No-Fly List, Wash. Post (Aug. 20, 2004), http://
www.washingtonpost.com/wp-dyn/articles/A17073-2004Aug19.html (describing how airline staff told
Senator Ted Kennedy at the airport that they could not issue him a boarding pass because his name
may have been on the No-Fly list); Shashank Bengali, Secret No-Fly List Blamed for Americans Bangkok
Nightmare, L.a. Times (June 28, 2013), http://www.latimes.com/news/nationworld/nation/la-na-0629-nofly-20130629,0,3153695.story (describing how a US citizen medical student was prevented from boarding
a flight to Los Angeles from Bangkok, potentially because of his inclusion on the No-Fly or Selectee lists.
The student was eventually allowed to board a flight to the United States, but was subjected to extensive
questioning and confiscation of his possessions upon his return).
62

62 Muslims Need Not Apply

 ee Conor Friedersdorf, Am I on the No Fly List?and Other FAQs to the FBI, The Atlantic (May 18, 2012,
S
4:18 AM), http://www.theatlantic.com/national/archive/2012/05/am-i-on-the-no-fly-list-0151-and-otherfaqs-to-the-fbi/257316/ (referencing the May 2012 oral argument in Latif v. Holder where the government
attorney admitted that individuals on the watch list have limited options for redress outside of the DHS
inquiry process); Dept of Homeland Sec., Step 3: After Your Inquiry, http://www.dhs.gov/step-3-after-yourinquiry (last visited July 16, 2013) (noting that [e]ven after completing the redress process . . . a traveler
may be selected for enhanced screening); see also, e.g., Joe Slezak, Dearborn Heights Paraplegic Removed
From Federal No Fly List, Press & Guide Newspapers (March 20, 2013), http://www.sourcenewspapers.com/
articles/2013/03/20/news/doc514a19d83f1e1622992949.txt?viewmode=default (recounting the story of a
paraplegic U.S. citizen who was forced to sue the federal government to get his name off of the No-Fly list);
Goo, Senator Kennedy Flagged by No-Fly List, supra note 61 (explaining that it took a U.S. senator and his
staff over three weeks to get the senators name removed from what he believed to be the No-Fly list).

A C L U

63

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

 ee Dept of Homeland Sec., DHS Traveler Redress Inquiry Program (DHS TRIP), http://www.dhs.gov/dhsS
trip (last visited July 16, 2013) (stating that DHS TRIP is a single point of contact for individuals who have
inquiries . . . regarding difficulties they experienced during travel screening at transportation hubs . . . including . . . watch list issues); Dept of Homeland Sec., Step 2: How to Use DHS Trip, http://www.dhs.gov/
step-2-how-use-dhs-trip (last visited July 16, 2013) (providing access to the DHS Traveler Inquiry Form,
which can be submitted online or by hard copy). The legislative directive for this redress program is set out
at 49 U.S.C. 44926 (2012).

64 See Shearson v. Holder, 865 F. Supp. 2d 850, 857 (N.D. Ohio 2011) (noting that DHS refers the redress requests of individuals who may be on the Watch List to TSCs Redress Unit for evaluation, and that the TSC
determines the outcome of the review).
65 Brief of Plaintiffs-Appellants at 6, Latif v. Holder, No. 11-35407 (9th Cir. Aug. 22, 2011).
66 Id.; see also Ibrahim v. Dept of Homeland Sec., 538 F.3d 1250, 1256 (9th Cir. 2008) (finding that [t]he NoFly List is maintained by the [TSC] and that the TSC was ultimately responsible for the placement of the
plaintiffs name on the list).
67

Shearson, 865 F. Supp. 2d at 857 (explaining that [a]t the conclusion of the review, the TSC Redress Unit
notifies the DHS TRIP of the outcome and DHS TRIP issues a determination letter to the traveler).

68

I d. at 857 (noting that the determination letter will not inform the individual of his or her status on a
watchlist).

69

 ee Brief of Plaintiffs-Appellants at 8-9, Latif v. Holder, No. 11-35407 (9th Cir. Aug. 22, 2011) (quoting a DHS
S
TRIP determination letter received by a plaintiff failed to include any basis for Plaintiff[s] inclusion on
such a list).

70 Shaun Waterman, Terror watch list grows to 875,000, Wash. Times, May 3, 2013, available at http://www.
washingtontimes.com/news/2013/may/3/terror-watch-list-grows-875000/?page=all.
71 This individual preferred to be identified only by his first name.
72 See Unlikely Suspects, ACLU, http://www.aclu.org/technology-and-liberty/unlikely-suspects (last visited
July 22, 2013); CNN.com, Mandela Off U.S. Terrorism Watch List, supra note 53.
73

See Unlikely Suspects, ACLU, supra note 72; Goo, Senator Kennedy Flagged by No-Fly List, supra note 61.

74

 ee Unlikely Suspects, ACLU, supra note 72; Sara Kehaulani Goo, Hundreds Report Watch-List Trials, Wash.
S
Post (Aug. 21, 2004), http://www.washingtonpost.com/wp-dyn/articles/A20199-2004Aug20.html.

75 See Unlikely Suspects, ACLU, supra note 72; Cat Stevens In the Dark Over No-Fly List, Abc News (Oct. 1,
2004), http://abcnews.go.com/2020/News/story?id=139607&page=1#.Udtdsju1GSo.
76 Guidance for Identifying National Security Concerns, supra note 21, at 2. According to CARRP, the NonKST category refers to all other [national security] concerns, regardless of source, including but not limited
to: associates of KSTs, unindicted co-conspirators, terrorist organization members, persons involved in
providing material support to terrorists or terrorist organizations, and agents of-foreign governments.
Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 1 n.3. Given
that much of the conduct defined in these categories constitutes terrorist activity as that term is defined
under federal law, the relationship between the criteria for being labeled a KST and a non-KST national
security concern remains unclear, and, most likely, ambiguous in practice. See, e.g., 8 U.S.C. 1182(a)(3)
(B) (i)(V)-(VI) (stating that terrorist organization members are inadmissible); id. 1182(a)(3)(B)(iv)(VI)
(stating that providing material support constitutes engaging in terrorist activity).
77

Guidance for Identifying National Security Concerns, supra note 21, at 3-7.

78

 ee 8 U.S.C. 1182(a)(3)(A)-(B) (laying out the national security and terrorism inadmissibility grounds); 8
S
U.S.C. 1227(a)(4)(A)-(B) (laying out the national security and terrorism deportability grounds).

79

I d. 1182(a)(3)(B)(vi)(I)-(II). The designation of a Tier I organization by the Secretary of State may be

done only after notifying certain members of Congress by classified communication. Id. 1189(a)(2)(A)(i)
(2012). The designation of a Tier II organization by the Secretary of State must be in consultation with or
upon the request of the Attorney General or the Secretary of Homeland Security. Id. 1182(a)(3)(B)(vi)(I)(II). The State Department maintains a public list of Tier I organizations, or Foreign Terrorist Organizations
(FTOs). See Bureau of Counterterrorism, Foreign Terrorist Organizations, U.S. DEPT OF STATE (Sept.
28, 2012), http://www.state.gov/j/ct/rls/other/des/123085.htm. The State Department also maintains a
list of Tier II organizations, or the Terrorist Exclusion List (TEL). Office of the Coordinator for Counterterrorism, Terrorist Exclusion List, U.s. Dept Of State (Dec. 29, 2011), http://www.state.gov/j/ct/rls/other/
des/123086.htm.

80 8 U.S.C. 1182(a)(3)(B)(vi)(III).
81

 ee, e.g., Human Rights First, Denial And Delay: The Impact Of The Immigration Laws Terrorism Bars On
S
Asylum Seekers And Refugees In The United States (2009), available at http://www.humanrightsfirst.org/
wp-content/uploads/pdf/RPP-DenialandDelay-FULL-111009-web.pdf.

82 8 U.S.C. 1182(a)(3)(B)(iv)(VI).
83

Id. 1182(a)(3)(B)(iv)(VI).

Muslims Need Not Apply 63

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

84 See Singh-Kaur v. Ashcroft, 385 F.3d 293, 299 (3d Cir. 2004) (holding the provision of food and shelter
constitutes material support under the INA); Khan v. Holder, 584 F.3d 773, 784 (9th Cir. 2009) (holding the
definition of terrorist activity under the INA does not provide an exception for armed resistance against
military targets that is permitted under the international law of armed conflict); Annachammy v. Holder,
686 F.3d 729, 740 (9th Cir. 2012) (holding that the material support bar under the INA does not include an
implied exception for individuals who provide support under duress).
85 8 U.S.C. 1182(a)(3)(B)(iv)(VI)(dd).
86 Guidance for Identifying National Security Concerns, supra note 21, at 2 (referencing 8 U.S.C. 1182(a)(3)
(A), (B), and (F), and 1227(a)(4)(A) and (B)).
87

Id. at 4 (emphasis added).

88 For example, the Treasury Department designated the Holy Land Foundation for Relief and Development,
Benevolence International Foundation, Global Relief Foundation, Islamic African Relief Agency, Al Haramain Islamic Foundation, and Goodwill Charitable Organization, among others, as financiers of terrorism.
See U.S Dept. of the Treasury, Protecting Charitable Giving: Frequently Asked Questions (June 4, 2010),
http://www.treasury.gov/resource-center/terrorist-illicit-finance/Documents/Treasury%20Charity%20
FAQs%206-4-2010%20FINAL.pdf.
89 For example, in a statement released the day the Treasury Department shut down four Holy Land Foundation (HLF) offices, then-Secretary Paul ONeill said that [i]nnocent donors who thought they were helping someone in need deserve protection from these scam artists who prey on their benevolence. Press
Release, U.S. Dept of the Treasury, Statement of Secretary Paul ONeill on the Blocking of Hamas Financiers Assets (Dec. 4, 2001), http://www.treasury.gov/press-center/press-releases/Pages/po837.aspx. Later,
when the Justice Department indicted several HLF leaders, then-Attorney General John Ashcroft stated
that the charges were not a reflection on well-meaning people who donated funds to the foundation, and
that the indictment sent a clear message to those who exploit good hearts to fund secretly violence and
murder. John Ashcroft, U.S. Attorney Gen., Prepared Remarks: Holy Land Foundation Indictment (July 27,
2004), http://www.justice.gov/archive/ag/speeches/2004/72704ag.htm. Similarly, the Justice Department
charged Enaam Arnaout, the President of the Benevolence International Foundation (BIF) with racketeering conspiracy for defrauding its donors. Mr. Arnaout pled guilty to defrauding donors to his charity.
Plea Agreement, U.S.A. v. Arnaout, CR 02-892 (N.D. Ill., filed Feb. 10, 2003) (Defendant admits that starting
in May 1993, BIF solicited donations from the public by purporting that BIF and its related overseas offices
was a charitable organization involved solely in humanitarian work for the benefit of civilian populations,
including refugees and orphans, with a small amount being used for administrative expenses.). Similarly,
the Justice Departments indictment of leaders of the Islamic African Relief Agency (IARA) charged them
with fraudulently using its tax-exempt status to solicit funds, representing that they were legitimate charitable contributions. Second Superseding Indictment at 22, 76, U.S.A. v. Islamic African Relief Agency, No.
07-00087-01/07-CR-W-NKL, 2008 WL 7088018 (W.D. Mo., Oct. 21, 2008). See also Press Release, U.S. Dept
of the Treasury, Treasury Designates Global Network, Senior Officials of IARA for Supporting Bin Laden,
Others (Oct. 13, 2004), http://www.treasury.gov/press-center/press-releases/Pages/js2025.aspx.
90

Guidance for Identifying National Security Concerns, supra note 21, at 4 (emphasis added).

91 Plea Agreement at 3, United States v. Arnaout, CR 02-00892 (N.D. Ill. Feb. 10, 2003), (stating that Defendant admits that he and others agreed to conceal from donors, potential donors, and federal and state
governments in the United States that a material portion of the donations received by BIF based on BIFs
misleading representations was being used to support fighters overseas.).
92 Tarek Hamdi Ruled Eligible to Naturalize After Eleven Year Battle with United States Citizenship and Immigration Service, ACLU (March 1, 2012), http://aclusocal.org/tarek-hamdi-ruled-eligible-to-naturalize-after-11-year-battle-with-u-s-citizenship-and-immigration-service/.
93

See generally Atalla v. Kramer, 2011 U.S. Dist. LEXIS 65839 (D. Ariz. June 20, 2011).

94

Atalla v. Kramer, 2011 U.S. Dist. LEXIS 65839, appeal docketed, No. 11-16987 (9th Cir. Aug. 30, 2011).

95

Guidance for Identifying National Security Concerns, supra note 21, at 4-5.

96

Id. at 4.

97

Id. at 5.

98

Id.

99 FBI Fingerprint or NCIC Criminal History Check results that indicate a national security concern include
responses that the person is [c]lassified by the Attorney General as a known terrorist; [c]harged in immigration court with an inadmissibility/removability ground in sections 212(a)(3)(A), (B), or (F), or 237(a)
(4)(A) or (B) of the Act; or [a]rrested/detained by the U.S. military overseas (e.g., detainees in Iraq or
Guantanamo). Id. at 5-7.
100 OBIM (formerly US-VISIT) and IDENT results that indicate a national security concern include biographical and biometric information for KSTs; military detainees held in Afghanistan, Pakistan and
Guantanamo; and individuals inadmissible or removable under the terrorism sections of the INA. See id. at
7.

64 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

101 The following TECS/IBIS and NCIC Status Codes may also be indicators of national security concerns
according to the policy. Id. at 7.
TECS/IBIS Table Code

Code Description

SF

TSA No Fly List

SK

Known Terrorist

ST

Suspected Terrorist

SX

Associate of Terrorist

NCIC Offense Code

Code Description

0103

Espionage

0104

Sabotage

0105

Sedition

5299

Weapons/Explosives

102 See id. at 3 (note: as of March 2013 US-VISIT has been replaced by the Office of Biometric Identity Management (OBIM)).
103 S
 ee Fed. Bureau of Investigation, Name Checks; National Name Check Program, http://www.fbi.gov/
stats-services/name-checks (last visited July 17, 2013).
104 See id.; see also Office of Inspector Gen., Alien Security Checks, supra note 7, at 3-4.
105 See FBI, National Name Check Program, supra note 103.
106 Id.
107 S
 ee Fed. Bureau of Investigation, Integrated Automated Fingerprint Identification System, http://www.fbi.
gov/about-us/cjis/fingerprints_biometrics/iafis/iafis (last visited July 17, 2013); see also Office of Inspector
Gen., Alien Security Checks, supra note 7, at 3.
108 S
 ee FBI, Integrated Automated Fingerprint Identification System, supra note 107; Office of Inspector Gen.,
Alien Security Checks, supra note 7, at 3.
109 See FBI, Integrated Automated Fingerprint Identification System, supra note 107.
110 Healy, Statement Before the Senate Committee on Homeland Security, supra note 41.
111 I d. CARRP specifically directs officers to look for B10 and NIC/T responses to TECS queries because they
are indicators of a known or suspected terrorist (we were not able to determine what the terms B10
and NIC/T mean). FDNS CARRP PowerPoint v. 1.1, supra note 33, at 9.
112 Healy, Statement Before the Senate Committee on Homeland Security, supra note 41.
113 Ruth Ellen Wasem, Cong. Research Serv., R41093, Visa Security Policy: Roles Of The Departments Of State And
Homeland Security 8 (2011), available at http://www.fas.org/sgp/crs/homesec/R41093.pdf.; see also Post9/11 Visa Reforms and New Technology: Achieving the Necessary Security Improvements in a Global Environment, Hearing Before the Subcommittee on International Operations and Terrorism of the Committee on
Foreign Relations, 108th Cong. (2003), available at http://www.gpo.gov/fdsys/pkg/CHRG-108shrg92725/
html/CHRG-108shrg92725.htm.
114 Dept of Homeland Sec., Office of Biometric Identity Management, http://www.dhs.gov/obim (last visited
June 16, 2013).
115 Dept of Homeland Sec., Factsheet: Expansion of Office of Biometric Identity Management to Additional
Travelers, http://www.dhs.gov/obim-expansion-fact-sheet (stating that biometric identity management
procedures including digital fingerprints and photographs upon entry or reentry into the U.S. would be
expanded to all non-U.S. citizens as of January 18, 2009, with the exception of a limited class of Canadian
visitors) (last visited June 16, 2013).
116 Dept of Homeland Sec., Privacy Impact Assessment For The Automated Biometric Identification System
(IDENT) 2 (2012), available at http://www.dhs.gov/sites/default/files/publications/privacy/PIAs/privacy_pia_usvisit_ident_appendixj_jan2013.pdf.
117 Guidance for Identifying National Security Concerns, supra note 21, at 3.
118 Id. at 5-6.
119 Id. at 5.
120 Deposition of FBI Agent Michael Caputo, Hamdi v. U.S. Citizenship & Immigration Servs., No. 10-00894
VAP (C.D. Cal., deposition taken Apr. 26, 2001) (deposition transcript on file with author).
121 Deposition of USCIS 30(b)(6) Witness Robert Osuna, Hamdi v. U.S. Citizenship & Immigration Servs., No.
10-00894 (C.D. Cal., deposition taken Sept. 23, 2011) (deposition transcript on file with author).

Muslims Need Not Apply 65

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

122 See FDNS CARRP PowerPoint v. 1.1, supra note 33, at 14.
123 U.S. Citizenship & Immigration Servs., PowerPoint v. 1.4, CARRP: Deconfliction, Internal and External
Vetting and Adjudication of NS Concerns [hereinafter CARRP PowerPoint v. 1.4] at 267, available at https://
aclusocal.org/wp-content/uploads/2013/01/CARRP-Deconfliction-Vetting-and-Adjudication-of-NS-Concerns-Training-PowerPoint-v.-1.4.pdf.
124 Id. at 269.
125 I d. at 270-1. CARRP appears to rely on 8 C.F.R. 103.2(b)(18) for a Field Office Directors authority to hold
an application in abeyance at the request of a law enforcement agency. Id. at 271. However, the regulation only provides authority to a district director and only where an investigation has been undertaken
involving a matter relating to eligibility or the exercise of discretion. 8 C.F.R. 103.2(b)(18). In practice,
CARRP abeyances often appear to be made not for purposes of USCIS determining eligibility, but for
purposes of law enforcement investigations that may or may not relate to the actual applicant. Sometimes
these investigations appear aimed not at determining whether an applicant is eligible for a benefit, but
at finding a basis to criminally prosecute or place an individual in removal proceedings. In other cases, a
law enforcement agency, usually the FBI, may request that a case be held in abeyance in order to use the
pending immigration application as a basis to coerce an individual to become an informant or provide
information.
126 See Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 3. See
generally U.S. Citizenship & Immigration Servs., Domestic Operations Directorate (DomOps), CARRP
Workflows [hereinafter DomOps CARRP Workflows], available at https://aclusocal.org/wp-content/uploads/2013/01/CARRP-Workflows.pdf.
127 Note that it is not apparent from the CARRP documents thus far made available whether USCIS has taken
any steps to protect the confidentiality of an applicants immigration file when sharing information with
the FBI or other law enforcement agencies.
128 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 4-5.
129 Id. at 5.
130 Id. at 4.
131 Id. at 4, 5 nn. 14, 17; see also DomOps CARRP Workflows, supra note 126, at 6 (Low Level CARRP KST Workflow: Identifying NS Concern). See generally CARRP PowerPoint v. 1.4, supra note 123.
132 This individual preferred to be identified by an alias.
133 U.S. Citizenship & Immigration Servs., Natl Sec. Division, Fraud Detection & Natl Sec. Division, PowerPoint v. 2.3.1, Controlled Application Review and Resolution Program (CARRP) at 54 (Jan. 2012) [hereinafter
CARRP PowerPoint v. 2.3.1], available at https://aclusocal.org/wp-content/uploads/2013/01/CARRPCourse-Powperpoint-Natl-Sec.-Division-FDNS-v.2.3.1-Jan.-2012.pdf.
134 Id. at 58.
135 Id. at 59.
136 S
 ee DomOps CARRP Workflows, supra note 126, at 3 (CARRP Workflow Overview) (showing need to deconflict before denying benefit); FDNS CARRP PowerPoint v. 1.1, supra note 33, at 30-31, 81 (instructing always
deconflict prior to USCIS action).
137 The 2008 CARRP memo originally assigned external vetting of KST national security concerns to FDNS
Headquarters. Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32,
at 6. However, in a 2011 memo, USCIS rescinded this requirement and reassigned external vetting of KST
concerns to officers in the field, along with non-KST concerns. Memorandum from U.S. Citizenship &
Immigration Servs., Revision of Responsibilities for CARRP Cases Involving Known or Suspected Terrorists 1
(July 26, 2011) [hereinafter Revision of Responsibilities for CARRP Cases], available at https://aclusocal.org/
wp-content/uploads/2013/01/Revision-of-Responsibilities-for-CARRP-Cases-Involving-KST-July-26-2011.
pdf.
138 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 5.
139 Id.; see Revision of Responsibilities for CARRP Cases, supra note 137, at 2.
140 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 5.
141 CARRP PowerPoint v. 2.3.1, supra note 133, at 86.
142 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 6.
143 Id. at 7.
144 Id.
145 Id.; see DomOps CARRP Workflows, supra note 126, at 5-6 (Mid Level CARRP KST Workflow, Low Level
CARRP KST Workflow: Identifying NS Concern).
145a This individual preferred to be identified by an alias.

66 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

146 Mr. Bahammous story has also been reported in the news media. See James Dao, Allegations Upend Lives
of 2 Muslims in Army, N.y. Times, May 13, 2011, at A13, available at http://www.nytimes.com/2011/05/14/
us/14muslim.html?pagewanted=all&_r=0; Joseph Rhee & Chris Cuomo, Army Investigation Over
False Accusations Ruined Our Lives, Say Muslim Soldiers, Abc News, May 13, 2011, available at http://
abcnews.go.com/TheLaw/soldiers-allege-army-investigation-anti-muslim-harassment-ruined/story?id=13590030#.UdtYHju1GSo.
147 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 6.
148 This is particularly apparent in the Low Level CARRP Non-KST Workflow charts on adjudication. See DomOps CARRP Workflows, supra note 126, at 15-16 (Low Level CARRP Non-KST Workflow: CARRP Adjudication Part I and Low Level CARRP Non-KST Workflow: CARRP Adjudication Part II).
149 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 5 n.16; DomOps CARRP Workflows, supra note 126, at 15 (Low Level CARRP Non-KST Workflow: CARRP Adjudication
Part I).
150 CARRP PowerPoint v. 2.3.1, supra note 133, at 86.
151 Id. at 106.
152 Although the policy explicitly provides for law enforcement agencies in general to play decision-making
roles in adjudicating immigration applications, in practice, it is generally the FBI that plays that role.
153 Art. I, Sec. 8, cl. 4.
154 Deposition of USCIS 30(b)(6) Witness Robert Osuna, supra note 121, at 171:15-172:11.
155 See the text box How Does the Terrorist Watch List Work? in Chapter III(a)(i) for more information.
156 For the many individuals on the Watch List who actually pose no threat to the United States, CARRP
imposes a double penalty. The federal government does not afford these individuals a meaningful way to
contest their designation on the list and to avoid the associated travel burdens. Now, because of CARRP,
they are not only subject to travel burdens such as routine secondary inspection i.e., interviews and
searches and inability to check in to flights online or at kiosks, but are also deprived of their entitlement
to important immigration benefits and to timely decisions.
157 S
 ee, e.g., Charlie Savage, F.B.I. Scrutinized for Amassing Data on American Communities, N.y. Times, Oct. 20,
2011; Richard B. Schmitt and Donna Horowitz, FBI Starts to Question Muslims in U.S. About Possible Attacks, Islamic advocacy groups contend that the latest program stigmatizes the entire community, L.a. Times,
July 18, 2004; Mary Beth Sheridan, Interviews of Muslims to Broaden, FBI Hopes to Avert a Terrorist Attack,
Wash. Post, July 17, 2004.
158 See, e.g., Deposition of FBI Agent Michael Caputo, supra note 120, at 84-85 (explaining that a record of a
voluntary interview, even if the person interviewed was not the subject of the investigation, could trigger a
positive FBI Name Check response).
159 See Abusamhadaneh v. Taylor, 873 F. Supp. 2d 682, 686 (E.D. Va. 2012) (noting that there was a positive FBI
Name Check result for Mr. Abusamhadaneh due to the existence of an FBI report of an interview with a
third person that mentioned Mr. Abusamhadaneh by name).
160 See, e.g., Declaration of Craig Monteilh Submitted by Plaintiffs in Support of Their Oppositions to Motions
to Dismiss 20-26, Fazaga v. Fed. Bureau of Investigations, No. 11-00301 CJC (C.D. Cal. filed on Dec. 23,
2011) (Over the course of my work, I went to about ten mosques and conducted surveillance and audio
recording in each one.).
161 See, e.g., id. 19-22, 24-25 ([My FBI handlers] assured me that all the information I collected was retained, and that they didnt discard any of the information, referring to the indiscriminate collection of
personal information he collected on Muslims. My handlers told me that every person who I contacted
whose phone number I got, who I emailed, who I identified through photographs had an individual file
in which the information I gathered was retained.).
162 In addition, the FBI approached many individuals who made donations to these charities for voluntary
interviews, as it did in Tarek Hamdis case. Records of these voluntary interviews would trigger a positive
hit on the FBI Name Check. See Deposition of FBI Agent Michael Caputo, supra note 120, at 84-85; see also
Aclu, Blocking Faith, Freezing Charity: Chilling Muslim Charitable Giving In The War On Terrorism Financing 100-01 (2009), available at http://www.aclu.org/pdfs/humanrights/blockingfaith.pdf (reporting that
members of the American Muslim immigrant community feared immigration consequences, such as
deportation or denial of citizenship, asylum or a green card, because of their charitable donations).
163 Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 5.
164 See Guidance for Identifying National Security Concerns, supra note 21, at 5; Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 4.

Muslims Need Not Apply 67

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

165 The lawyer submitted a question to the District Director asking whether it was appropriate for officers to
ask questions regarding religious affiliation during naturalization interviews, including What is your religion?, What mosque do you attend?, and How often do you attend mosque? In the approved minutes
of the December 2009 Liaison meeting, USCISs response to the question was: No directives have been
issued regarding an applicants method of worship for any faith or denomination. N-400 applicants are
asked if they belong to organized groups or associations. If questions regarding religious practice are put to
an applicant, the applicant or their representative should ask to speak with a supervisor. Officers only ask
questions that pertain to the N-400 application; if further information is required, the officer will continue
a line of questions to determine eligibility. Minutes of AILA-USCIS Liaison meeting (December 2009) (on
file with author). As this report makes clear, USCISs response and in particular the claim that officers
only ask questions that pertain to the N-400 application cannot be reconciled with practices under
CARRP.
166 Hajro v. Barrett, 849 F. Supp. 2d 945, 957, 962 (N.D. Cal. 2012).
167 Id.
168 See, e.g., Policy for Vetting and Adjudicating Cases with National Security Concerns, supra note 32, at 5 (In
a case with a Non-KST NS Concern, the officer must initiate the external vetting process before the case
may proceed to final adjudication if: the application or petition appears to be otherwise approvable, and
internal vetting is complete.); CARRP PowerPoint v. 1.4, supra note 123, at 271 (stating that cases may
initially be placed in abeyance for 180 days for investigation by LEAs, but the withholding of [the] adjudication period may be extended further.).
169 8 U.S.C. 1571(b) (It is the sense of Congress that the processing of an immigration benefit application
should be completed not later than 180 days after the initial date of filing of the application.).
170 Id. 1447(b).
171 Singh v. Still, 470 F. Supp. 2d 1064, 1065 (N.D. Cal. 2007).
172 Id. at 1069.
173 Id. at 1070.
174 Under CARRP, an applicant whom USCIS considers a national security concern can only be approved
for an immigration benefit if he is considered a non-KST and there is supervisory approval to grant the
application.
175 8 C.F.R. 335.3(a) (USCIS shall grant the application if the applicant has complied with all requirements
for naturalization. . . .).
176 In particular, USCIS CARRP training documents incorrectly instruct officers that naturalization applications can be denied on the basis of discretion in accordance with 8 C.F.R. 103.2(b)(8)(i). CARRP PowerPoint v. 2.3.1, supra note 133, at 68. (Note that the training PowerPoint actually refers to 8 C.F.R. 103.2(b)
(i), however, such section of the regulation does not exist and must be intended to refer to 103.2(b)(8)(i),
which describes USCISs power to deny an application based on the exercise of discretion.) This agency
regulation merely provides that USCIS should approve an application that establishes statutory eligibility, except that in any case in which the applicable statute or regulation makes the approval of a petition
or application a matter entrusted to USCIS discretion, USCIS must make an additional finding that the
petitioner or applicant warrants a favorable exercise of discretion. 8 C.F.R. 103.2(b)(8)(i). Importantly,
contrary to USCISs teachings here, the statute does not make naturalization discretionary; if the applicant
has complied with all the requirements, USCIS must grant the application. Id. 335.3(a) (USCIS shall
grant the application if the applicant has complied with all the requirements for naturalization. . . .).
177 CARRP PowerPoint v. 2.3.1, supra note 133, at 68. The training PowerPoint refers to 8 C.F.R. 316.10(b)(vi),
however, this must be a typo because such section of the regulation does not exist. The applicable section
regarding misrepresentations is 8 C.F.R. 316.10(b)(2)(vi). Similarly, 8 C.F.R. 103(b)(13) also does not
exist. The relevant section that applies to the failure to respond to a RFE is 103.2(b)(13).
178 8 U.S.C. 1101(f )(6); see 8 C.F.R. 316.10(b)(2)(vi).
179 8 C.F.R. 316.10(b)(2)(vi); see Kungys v. United States, 485 U.S. 759, 780 (1988) (Willful misrepresentations
made for other reasons, such as embarrassment, fear, or a desire for privacy do not constitute false testimony because they lack the invalidating intent); see also Hovsepian, 422 F.3d at 887-88 (finding that there
is no subjective intent to deceive under Section 1101(f )(6) where inaccuracies resulted from poor memory,
mistake, or vague questioning).
180 See Abusamhadaneh, 873 F. Supp. 2d. at 689 (Question 8(a) does not specify religious organizations or the
meaning of the terms member and associated.); Atalla, 2011 U.S. Dist. LEXIS 65839, at *40 (The phrase
associated with has diverse [ ] meanings. . . . and the phrase is not defined by federal statute or regulation.).
181 See, e.g., Order Granting-in-Part and Denying-in-Part Defendants Motion for Summary Judgment at 37,
Hamdi v. U.S. Citizenship & Immigration Servs., No. 10-00894 (C.D. Cal. filed Dec. 14, 2011) (finding that
the Government does not offer a definition of the word associate. Indeed, when deposed as to its meaning as he applies it, [Immigration Officer Robert] Osuna first said the definition he uses came from the
English dictionary, then said he did not have to look it up because it is a word he knows, and then said he
learned it in grade school. He did not, however, give much by way of a substantive definition.).

68 Muslims Need Not Apply

A C L U

S o C a l

L C C R / S F B A Y

M A Y E R

B R O W N

182 See, e.g., Deposition of USCIS Officer Robert Osuna at 28-29, 153, Hamdi v. U.S. Citizenship & Immigration
Servs., No. 10-00894 (C.D. Cal., deposition taken Apr. 13, 2011) (deposition transcript on file with author)
(noting that he does not ask naturalization applicants about membership in churches or synagogues or
charitable donations to such organizations as the Red Cross).
183 See generally Hamdi v. U.S. Citizenship & Immigration Servs., 2012 U.S. Dist. LEXIS 25609 (C.D. Cal. Feb. 25,
2012).
184 See generally Hajro, 849 F. Supp. 2d 945.
185 This individual preferred to be identified by an alias.
186 See generally Atalla, 2011 U.S. Dist. LEXIS 65839.
187 See generally Abusamhadaneh, 873 F. Supp. 2d 682.
188 See generally id.
189 Id. at 686.
190 Id. at 699-702.
191 U.s. Citizenship & Immigration Servs., Adjudicators Field Manual, Preparing Denial Orders 10.7(b)(3) (If the
applicant or petition[er] cannot reasonably be presumed to be already aware of the evidence, he or she
must be given an opportunity to rebut the evidence before a decision is made.), available at www.uscis.
gov; see also Abusamhadaneh, 873 F. Supp. 2d at 686; 8 C.F.R. 103.2(b)(16)(i) (stating that if a decision is
adverse to the applicant and is based on derogatory information considered by the Service and of which
the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to
rebut the information and present information in his/her own behalf before the decision is rendered).
192 The Ninth Circuit has held that due process prohibits the government from denying an applicant adjustment of immigration status on the basis of undisclosed classified information. See American-Arab
Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1070 (9th Cir. 1995). Though the Ninth Circuit has since
questioned the validity of ADC to the extent it implied a blanket bar on the use of classified information,
it has made clear that the government must take measures to mitigate nondisclosure even where national
security concerns justify the use of ex parte evidence. Al Haramain Islamic Found. v. U.S. Dept of Treasury,
686 F.3d 965 (9th Cir. 2011). The Ninth Circuit has also recognized the serious due process problem that
would arise if an immigrant were denied access to her immigration file, known as an A file, in removal
proceedings, and in doing so has employed reasoning that supports the due process right of applicants to
access government information used against them in naturalization proceedings. See Dent v. Holder, 627
F.3d 365, 374 (9th Cir. 2010); Hajro v. U.S. Citizenship & Immigration Servs., 832 F. Supp. 2d 1095, 1114-15 &
n.107 (N.D. Cal. 2011) (citing Dent, 627 F.3d at 37172).
193 8 C.F.R. 316.10(b)(2)(vi); 8 U.S.C. 1101(f)(6); see also Kungys, 485 U.S. at 780 ( 1101(f )(6) applies to
only those misrepresentations made with the subjective intent of obtaining immigration benefits.).
194 Abusamhadaneh, 873 F. Supp. 2d at 689.
195 Id. at 691.
196 Id. at 689-694.
197 See generally Hajro, 849 F. Supp. 2d 945.
198 Id. at 960-963.
199 In the litigation of his case, USCIS also argued that he failed to disclose his association with the Benevolence International Foundation, the Holy Land Foundation, and Islamic African Relief Agency solely on the
basis that he made monetary charitable contributions to these organizations prior to their designation by
the Treasury Department as having ties to terrorism. The Court rejected these claims as well. Atalla, 2011
U.S. Dist. LEXIS 65839, at *43.
200 Id. at *41-43.
201 Hajro, 849 F. Supp. 2d at 961 n.3 (noting that [a]ccepting the Governments [false testimony claims] would
mean that, if in response to questions that the Government itself characterizes as broad and open-ended,
an applicant does not include involvement with a particular entity because, as is the case here, the applicant misunderstood the question or genuinely believed that the entity did not fall within the scope of the
question, and later voluntarily discloses involvement with that entity, the applicants response may be a basis for the Government to find that the applicant either intentionally withheld information when completing the written application or provided inconsistent testimony and therefore lacks good moral character).
202 See Price v. U.S. Immigration & Naturalization Serv., 962 F.2d 836 (9th Cir. 1992).
203 See, e.g., Shweika v. Dept of Homeland Sec., No. 09-11781-BC, 2012 U.S. Dist. LEXIS 41473 (E.D. Mich. Mar.
27, 2012), vacated and remanded, No. 12-1645, 2013 U.S. App. LEXIS 15104 (6th Cir. July 25, 2013) (finding
that 8 U.S.C. 1421(c)s administrative-hearing requirement is nonjurisdictional and remanding for determination on whether 1421(c)s administrative-hearing requirement implies a completion requirement).
204 See 8 U.S.C. 1182(a)(3)(B)(iv)(VI) (material support definition); 8 U.S.C. 1227(a)(4)(B) (grounds for
removal).

Muslims Need Not Apply 69

See It Online:
For more information about this project and to take action, see www.aclusocal.org/carrp.

ACLU of Southern California

1313 W 8th St.
Los Angeles, CA 90017
www.aclusocal.org

Lawyers Committee for Civil Rights

of the San Francisco Bay Area
131 Steuart Street, Suite 400
San Francisco, CA 94105
www.lccr.com

Mayer Brown LLP

Two Palo Alto Square, Suite 300
Palo Alto, CA 94306
www.mayerbrown.com

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 1 of 27

Pg ID 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHOSHANA HEBSHI,
Plaintiff,
v.

Hon.

UNITED STATES OF AMERICA;

FRONTIER AIRLINES, INC.; JOHN BRAND,
in his individual capacity; UNKNOWN FBI
AGENT 1, in his individual capacity;
UNKNOWN FBI AGENT 2, in his individual
capacity; JOHN ETLING, in his individual
capacity; MARK DEBEAU, in his individual
capacity; JEREMY BOHN, in his individual capacity;
CAPTAIN PATRICK DRISCOLL, in his individual
capacity; OFFICER GRANT, in his individual
capacity; LT. M. WASIUKANIS, in his individual
capacity; TOYA PARKER, in her individual
capacity; DT. CARMONA, in his or her individual
capacity; OFFICER JOHNSON, in his or her
individual capacity; CORPORAL BRADLEY, in
his or her individual capacity; UNKNOWN CBP
OFFICER, in his individual capacity; THOMAS
PIPIS, in his individual capacity; DAVID
LAKATOS, in his individual capacity;
NATHANIEL DEVINS, in his individual capacity;
UNKNOWN TSA AGENT 1, in his individual
capacity; UNKNOWN TSA AGENT 2, in her
individual capacity; ROBERT BALL, in his
individual capacity; UNKNOWN ICE OFFICER,
in his individual capacity; and PAUL BRUMLEY,
in his individual capacity,

Case No.

Defendants.
_______________________________________/

COMPLAINT

COMPLAINT AND
JURY DEMAND

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 2 of 27

Pg ID 2

INTRODUCTORY STATEMENT
1.

On September 11, 2011, Plaintiff Shoshana Hebshi flew on Frontier Airlines

flight 623 from San Francisco, California, to Detroit, Michigan. Upon landing, heavily armed
agents forcibly removed Ms. Hebshi from the airplane; handcuffed, pat searched, and strip
searched her; and locked her in a cell at Detroit Metropolitan Wayne County Airport before
interrogating her. Ms. Hebshi was detained for approximately four hours before being released
with no charges.
2.

An American citizen born in California, Ms. Hebshi was arrested and detained

because of her ethnicity and her seat assignment: she has an Arab last name and was seated next
to two men of South Asian origin, who each allegedly used the lavatory for ten to twenty minutes
during the flight. Ms. Hebshi did not know these men, nor did she speak with them or leave her
seat at any time before landing in Detroit.
3.

Although Frontier Airlines never suggested that Ms. Hebshi had engaged in any

suspicious behavior, Frontier Airlines staff provided her name to federal and state authorities
when reporting the allegedly suspicious conduct of the men seated next to her on the plane.
4.

Based solely on the information received from Frontier Airlines staff, agents of

the Federal Bureau of Investigation (FBI), the Transportation Security Administration

(TSA), Wayne County Airport Authority Police, Immigration and Customs Enforcement
(ICE), and Customs and Border Patrol (CBP), working together, arrested and detained Ms.
Hebshi for approximately four hours with no articulable facts connecting Ms. Hebshi to criminal
activity or providing probable cause. The FBI has publically stated that Ms. Hebshi was not
involved in any suspicious activity.

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 3 of 27

5.

Pg ID 3

During her several hours in detention, Ms. Hebshi was subjected to an invasive

and humiliating strip search, which required her to strip naked, bend over, and cough.
6.

Ms. Hebshi, by her attorneys, now challenges the discriminatory conduct of

Frontier Airlines, which identified her as a suspicious passenger based on her ethnicity, race or
national origin, resulting in her arrest and detention, as a violation of 42 U.S.C. 1981; Title VI
of the Civil Rights Act of 1964; and 49 U.S.C. 40127(a).
7.

Ms. Hebshi also brings this action to challenge the unlawful arrest, detention, and

strip search she endured at the hands of agents of Wayne County Airport Authority Police, the
FBI, the TSA, ICE, and CBP, who violated her right to be free from unreasonable searches and
seizures under the Fourth and Fourteenth Amendments of the United States Constitution. In
arresting and detaining Ms. Hebshi because of her perceived ethnicity, race, or national origin,
agents of Wayne County Airport Authority Police, the FBI, the TSA, ICE, and CBP further
violated Ms. Hebshis right to equal protection of the laws under the Fifth and Fourteenth
Amendments to the United States Constitution.
8.

In addition, Ms. Hebshi brings claims under the Federal Tort Claims Act against

the United States of America for false arrest and false imprisonment.
JURISDICTION AND VENUE
9.

This civil rights action is brought pursuant to 42 U.S.C. 1981; Title VI of the

Civil Rights Act of 1964, 42 U.S.C. 2000d; 49 U.S.C. 40127(a); the Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution; 42 U.S.C. 1983 and Bivens v. Six
Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); and the Federal Tort
Claims Act (FTCA), 28 U.S.C. 2671-2680. This Court has jurisdiction over Ms. Hebshis
claims as an action arising under federal law, 28 U.S.C. 1331; as a suit to redress deprivations

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 4 of 27

Pg ID 4

of rights, privileges, and immunities secured by the United States Constitution and by federal
law, 28 U.S.C. 1343(3), (4); and as an action against the United States, 28 U.S.C. 1346.
10.

On January 25, 2012, Ms. Hebshi submitted an administrative claim for damages

to the TSA, the FBI, CBP and ICE. In a letter dated July 23, 2012, the TSA replied for all named
agencies and denied the administrative tort claim. This Complaint is filed within six months of
that denial and is therefore timely under 28 U.S.C. 2401(b).
11.

Venue is proper in this Court under 28 U.S.C. 1391(b)(2) because a substantial

part of the events or omissions giving rise to the claims occurred within this district. The events
complained of herein happened as Ms. Hebshi was flying to, arrested at, and detained at the
Detroit Metropolitan Wayne County Airport, in Romulus, Michigan, within the Eastern District
of Michigan.
PARTIES
Plaintiff
12.

Plaintiff Shoshana Hebshi is a U.S. citizen and a freelance journalist. Ms.

Hebshis first name is of Hebrew origin, as her mother is Jewish. Ms. Hebshi has the same last
name as her father, now deceased, who immigrated to the U.S. from Saudi Arabia. Ms. Hebshi
lives in Sylvania, Ohio, with her husband and two young sons. She was traveling home after
visiting her sister in California when she was arrested, detained, and strip searched at the Detroit
Metropolitan Wayne County Airport.
Defendant United States of America
13.

Defendant United States of America (United States) is the proper defendant for

Ms. Hebshis claims brought under the FTCA.

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 5 of 27

Pg ID 5

Defendant Frontier Airlines, Inc.

14.

Defendant Frontier Airlines, Inc. is incorporated and headquartered in Colorado

and operates throughout the United States, including in the State of Michigan. Employees of
Frontier Airlines, acting within the scope of their employment, identified Ms. Hebshi as a
suspect to state and federal law enforcement agencies based on her perceived ethnicity, race, or
national origin, resulting in her arrest and detention. Upon information and belief, Frontier
Airlines receives federal funding including, and not limited to, subsidies under the Essential Air
Service program.
FBI Defendants
15.

Defendant John Brand was, at all times relevant to this action, a Special Agent

with the FBI. Defendant Brand participated in the decisions to arrest, detain, strip search, and
interrogate Ms. Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or
providing probable cause. He is sued in his individual capacity.
16.

Defendant Unknown FBI Officer 1 was, at all times relevant in this action, an

agent of the FBI. At this time, his identity is not known to Ms. Hebshi. Upon information and
belief, Defendant Unknown FBI Officer 1 ordered FBI agents in Detroit to arrest, detain, and
interrogate Ms. Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or
providing probable cause. He is sued in his individual capacity.
17.

Defendant Unknown FBI Officer 2 was, at all times relevant in this action, an

agent of the FBI. At this time, his identity is not known to Ms. Hebshi. Defendant Unknown
FBI Officer 2 participated in both the decision to arrest and detain Ms. Hebshi, as well as the
actual arrest and detention, with no articulable facts connecting Ms. Hebshi to criminal activity
or providing probable cause. He is sued in his individual capacity.

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 6 of 27

18.

Pg ID 6

Defendant John Etling was, at all times relevant in this action, an agent with the

Joint Terrorism Task Force, a multi-agency law enforcement unit under the direction of the FBI.
At this time, his identity is not known to Ms. Hebshi. Defendant Etling participated in both the
decision to arrest and detain Ms. Hebshi and her actual arrest and detention, all without
articulable facts connecting Ms. Hebshi to criminal activity or providing probable cause. He is
sued in his individual capacity.
Wayne County Airport Authority Defendants
19.

Defendant Mark DeBeau was, at all times relevant to this action, Vice President

of Public Safety at Wayne County Airport Authority. Defendant DeBeau participated in the
decision to arrest Ms. Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity
or providing probable cause. He is sued in his individual capacity.
20.

Defendant Jeremy Bohn was, at all times relevant to this action, employed by the

Wayne County Airport Authority Police. Defendant Bohn was the Officer-in-Charge for the
Wayne County Airport Authority Police during and the events described in this complaint. He
participated in Ms. Hebshis arrest and transportation to the detention site with no articulable
facts connecting her to criminal activity or providing probable cause. He is sued in his
individual capacity.
21.

Defendant Captain Patrick Driscoll was, at all times relevant to this action, a

member of the Special Response Unit for the Wayne County Airport Authority Police.
Defendant Driscoll participated in the decision to arrest, handcuff, and detain Ms. Hebshi with
no articulable facts connecting Ms. Hebshi to criminal activity or providing probable cause. He
is sued in his individual capacity.

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 7 of 27

22.

Pg ID 7

Defendant Lieutenant M. Wasiukanis was, at all times relevant to this action, an

officer of the Wayne County Airport Authority Police. Defendant Wasiukanis participated in the
arrest, detention, and decision to strip search Ms. Hebshi with no articulable facts connecting Ms.
Hebshi to criminal activity or providing probable cause. He is sued in his individual capacity.
23.

Defendant Toya Parker, at all times relevant to this action, was an officer with the

Wayne County Airport Authority Police. Officer Parker performed the strip search on Ms.
Hebshi during her detention with no articulable facts connecting Ms. Hebshi to criminal activity
or providing probable cause. She is sued in her individual capacity.
24.

Defendant Officer Grant was, at all times relevant to this action, a member of the

Special Response Unit for the Wayne County Airport Authority Police. Defendant Grant was
part of the team that planned and executed the arrest of Ms. Hebshi with no articulable facts
connecting Ms. Hebshi to criminal activity or providing probable cause. He is sued in his
individual capacity.
25.

Defendant Detective Carmona was, at all times relevant to this action, an officer

with the Wayne County Airport Authority Police. Detective Carmona arrested and handcuffed
Ms. Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or providing
probable cause. He or she is sued in his or her individual capacity.
26.

Defendant K9 Officer Johnson was, at all times relevant to this action, employed

by the Wayne County Airport Authority Police. Defendant Johnson participated in Ms. Hebshis
arrest with no articulable facts connecting Ms. Hebshi to criminal activity or providing probable
cause. He or she is sued in his or her individual capacity.
27.

Defendant Corporal Bradley was, at all times relevant to this action, employed by

the Wayne County Airport Authority Police. Defendant Bradley arrested and transported Ms.

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 8 of 27

Pg ID 8

Hebshi to a detention facility at Detroit Metropolitan Wayne County Airport with no articulable
facts connecting Ms. Hebshi to criminal activity or providing probable cause. He is sued in his
individual capacity.
CBP Defendants
28.

Defendant Unknown CBP Officer was, at all times relevant to this action, an

officer of CBP. At this time, his identity is not known to Ms. Hebshi. Upon information and
belief, Defendant Unknown CBP Officer ordered CBP agents at the Detroit Metropolitan Wayne
County Airport to arrest and detain Ms. Hebshi with no articulable facts connecting Ms. Hebshi
to criminal activity or providing probable cause. He is sued in his individual capacity
29.

Defendant Thomas Pipis was, at all times relevant to this action, an officer with

CBP. Upon information and belief, he participated in the decision to arrest and detain Ms.
Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or providing
probable cause. He is sued in his individual capacity.
30.

Defendant David Lakatos was, at all times relevant to this action, an officer with

CBP. Upon information and belief, he participated in the decision to arrest and detain Ms.
Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or providing
probable cause. He is sued in his individual capacity.
31.

Defendant Nathaniel Devins was, at all times relevant to this action, an officer with

CBP. Upon information and belief, he participated in the decision to arrest and detain Ms.
Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or providing
probable cause. He is sued in his individual capacity.

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 9 of 27

Pg ID 9

TSA Defendants
32.

Defendant Unknown TSA Officer 1 was, at all times relevant to this action, an

employee of the TSA. At this time, his identity is not known to Ms. Hebshi. Upon information
and belief, Defendant Unknown TSA Officer 1 ordered TSA agents at Detroit Metropolitan
Wayne County Airport to arrest and detain Ms. Hebshi with no articulable facts connecting Ms.
Hebshi to criminal activity or providing probable cause. He is sued in his individual capacity.
33.

Defendant Robert Ball was, at all times relevant to this action, the Federal Security

Director in Detroit for the TSA. Defendant Ball participated in the decision to arrest and detain
Ms. Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or providing
probable cause. He is sued in his individual capacity.
34.

Defendant Unknown TSA Officer 2 was, at all times relevant to this action, an

employee of the TSA. At this time, her identity is not known to Ms. Hebshi. Upon information
and belief, Defendant Unknown TSA Officer 2 participated in the detention and interrogation of
Ms. Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or providing
probable cause. She is sued in her individual capacity.
ICE Defendants
35.

Defendant Unknown ICE Officer was, at all times, relevant to this action, an

employee of ICE. At this time, his identity is not known to Ms. Hebshi. Defendant Unknown
ICE Officer instructed ICE officers at Detroit Metropolitan Wayne County Airport to arrest and
detain Ms. Hebshi with no articulable facts connecting Ms. Hebshi to criminal activity or
providing probable cause. He is sued in his individual capacity.
36.

Defendant Paul Brumley was, at all times relevant to this action, a Special Agent

with ICE. Defendant Brumley participated in Ms. Hebshis arrest with no articulable facts

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 10 of 27

Pg ID 10

connecting Ms. Hebshi to criminal activity or providing probable cause. He is sued in his
individual capacity.
STATEMENT OF FACTS
Frontier Airlines Identification of Ms. Hebshi As A Suspect
37.

Shoshana Hebshi is a 36-year-old freelance journalist who lives in Sylvania,

Ohio, near Toledo, Ohio, with her husband and sons.

38.

Ms. Hebshi was born and raised in California. She studied journalism at

California Polytechnic State University-San Luis Obispo and later as a graduate student at Iowa
State University. She wrote for several newspapers and then worked for the faculty union at
California State University. Since moving to Ohio in June 2011 for her husbands medical
residency, she has been working at home as a freelance journalist so she can help care for their
young sons.
39.

In September 2011, Ms. Hebshi spent Labor Day weekend with her sister in San

Francisco, California. On September 11, 2011, Ms. Hebshi flew home unaccompanied to her
family in Sylvania, Ohio. Ms. Hebshis destination airport was Detroit Metropolitan Wayne
County Airport, which is approximately 60 miles from Sylvania. Her car was parked in a lot at
the airport in Detroit.
40.

Ms. Hebshi cleared airport security at San Francisco International Airport, where

she boarded a Frontier Airlines flight to Denver, Colorado.

41.

At Denver International Airport, without ever leaving the airport or security zone,

Ms. Hebshi boarded a connecting flight, Frontier Airlines flight 623 to Detroit, Michigan.
42.

On the flight from Denver to Detroit, Ms. Hebshi sat in seat 12A, a window seat

in a row with three seats. At no point during the flight did she leave her seat.
10

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 11 of 27

43.

Pg ID 11

The aisle and middle seats, 12B and 12C, were occupied by two men of South

Asian descent.
44.

Ms. Hebshi did not know the two men seated beside her, nor did she speak to

them before the plane landed in Detroit.

45.

During the flight, some flight attendants and passengers noticed that the two men

seated in Ms. Hebshis row were acting in a way that they considered to be suspicious.
Specifically, these flight attendants and passengers alleged that the men went to the restroom
around the same time and each spent ten, fifteen or twenty minutes there. Some passengers and
flight attendants also reported that the men were standing in the aisle for long periods.
46.

None of the passengers or flight attendants either observed or reported anything

suspicious about Ms. Hebshi or her conduct during or after the flight.
47.

Shortly before 3:00 p.m., flight attendants alerted the pilot, Captain Laurence

Pucci, that two men of possibly Arab descent had been observed repeatedly going to the
bathroom and standing in the aisle for long periods of time.
48.

Captain Pucci sent a message to Frontier Airlines dispatch through the Aircraft

Communications Addressing and Reporting System (ACARS), asking for information about
the passengers seated in 12B and 12C, whom he and the flight attendants believed were acting
strangely and who were repeatedly using the restroom.
49.

Upon receiving Captain Puccis message, Mark Fraley, Frontier Airlines Sector

Operations Control Shift Manager, forwarded it to several individuals including Frontier staff.
He provided the names of the passengers in 12B and 12C, added the name of the passenger in
seat 12A (Ms. Hebshi), and commented that she might also be with the two men.

11

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 12 of 27

50.

Pg ID 12

Mr. Fraleys email suggesting that Ms. Hebshi might be with the two men was not

based on any actual facts or credible information. Upon information and belief, Ms. Hebshis
name and seat assignment were the only facts available to Mr. Fraley. Based on this
information, Mr. Fraley assumed Ms. Hebshi knew the two men and might be involved in
suspicious activity.
51.

Frontier Airlines Manager Tammara Faforke passed along Mr. Fraleys email to a

TSA air marshal and to Officer Duncan, a Wayne County Airport Authority Police Officer, who
in turn passed it along to Defendant Grant, a Wayne County Airport Authority Police Officer.
52.

Defendant Grant relayed to Defendants Driscoll and Carmona, also officers with

Wayne County Airport Authority Police, the information contained in Mr. Fraleys email,
including that Ms. Hebshi may have been traveling with the two men.
53.

The TSA also contacted Wayne County Airport Authority and reported suspicious

passenger behavior on Frontier Airlines flight 623.

54.

At approximately 3:00 p.m., Defendant Jeremy Bohn, the Officer-in-Charge for

Wayne County Airport Authority Police during these events, went to wait for the airplane at the
designated inspection site, along with Defendants Thomas Pipis, David Lakatos and Nathaniel
Devins, all agents with CBP; Defendant Robert Ball of the TSA; Defendant John Etling of the
Joint Terrorism Task Force (a multi-agency law enforcement unit under the direction of the FBI);
an air marshal; and other Wayne County Airport Authority Police Officers and employees of the
TSA, the FBI.
55.

At the inspection site, Defendant Officer Johnson of the Wayne County Airport

Authority Police spoke via cell phone with Frontier Airlines Captain Pucci, who told Defendant
Johnson that a male passenger from row 12 had entered the airplane restroom for a long period

12

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 13 of 27

Pg ID 13

of time, while the other man from row 12 stood outside. According to Defendant Johnson: The
Captain stated that a third passenger seated in 12A may also be involved in the incident but is
seated and compliant at this time.
56.

Upon information and belief, none of the state or federal officers who received

information about these passengers requested further information or evidence regarding Ms.
Hebshis alleged involvement in suspicious activities. Accordingly, they acted based on the
perceived ethnicity, national origin, or race of Ms. Hebshis name, as they had no articulable
facts connecting Ms. Hebshi to suspicion of criminal activity.
The Unlawful Arrest, Detention and Strip Search of Ms. Hebshi
57.

Agents and employees of the FBI, the TSA, CBP, and Wayne County Airport

Authority Police collaborated and put into place a plan to divert and board the aircraft, arrest Ms.
Hebshi and the two men sitting next to her, and remove them to a detention facility at the airport
for questioning.
58.

Defendant Grant organized the tactical entry of the flight with the assistance and

participation of Defendant Johnson and CBP officers.

59.

Defendant Driscoll determined that a tactical entry was needed and recommended

to Defendant Mark DeBeau, Vice President of Public Safety for the Wayne County Airport
Authority, that all three passengers in row 12 be removed from the plane and taken to Building
358, a detention facility at the airport, for further investigation.
60.

Defendant DeBeau, also present at the inspection site, authorized this plan of

61.

Defendant Driscoll then told the agents on site that the suspects, including Ms.

action.

Hebshi, were to be handcuffed upon contact.

13

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 14 of 27

62.

Pg ID 14

Based on the information these state and federal officers had at the time, there

were no articulable facts connecting Ms. Hebshi to criminal activity or providing probable cause
to arrest or detain her.
63.

When the plane landed, Captain Pucci announced on the loudspeaker that the

plane would be diverted to another area of the airport. He warned the passengers that there
would be consequences if they left their seats.
64.

Ms. Hebshi noticed that there were numerous law enforcement vehicles around

the plane and wondered if there was a fugitive on the airplane.

65.

She called her husband to let him know the flight would be delayed but that she

did not know why or for how long.

66.

The aircraft taxied to the inspection site and a van with stairs approached the

aircraft.
67.

Ms. Hebshi was relieved because she thought this meant that she and the other

passengers would be allowed to leave.

68.

Instead, at approximately 4:25 p.m., Defendants Carmona, Bohn, Johnson and

Defendant ICE Special Agent Brumley, along with other officers, boarded the plane, heavily
armed, and ran down the aisle where Ms. Hebshi and the other two men in her row were seated.
69.

Several officers shouted at the passengers to keep their heads down and put their

hands on the seat in front of them.

70.

Ms. Hebshi was stunned when the officers stopped at her row and yelled at her

and the two men seated beside her to get up.

71.

Ms. Hebshi asked what was happening but received no reply. She asked if she

could take her cell phone and was told no.

14

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 15 of 27

72.

Pg ID 15

Defendant Carmona put Ms. Hebshi in handcuffs and put flex-cuffs on the

passenger in 12B.
73.

Ms. Hebshi and the two men in her row were then forcefully rushed down the

aisle and stairs and out of the plane.

74.

Ms. Hebshi was shocked, frightened, and humiliated as she was taken off the

plane, in front of the other passengers.

75.

Once outside the airplane, Ms. Hebshi was pushed roughly against a police car

and made to spread her legs while she was pat searched.
76.

The officer asked Ms. Hebshi if she was wearing any explosives, to which she

said no.
77.

Ms. Hebshi asked what was happening but no one would reply.

78.

Defendant Bradley of the Wayne County Airport Authority Police then put Ms.

Hebshi in the back of a police car with one of the men from her row and drove them to Building
358.
79.

This was Ms. Hebshis first experience in the back of a police car and she felt

deeply embarrassed and scared.

80.

Upon arriving at Building 358, Ms. Hebshi, still handcuffed, was taken out of the

car and to a cell.

81.

The cell was approximately six by ten feet and had a metal cot. A video camera

hung above the toilet.

82.

A male officer came to the door and asked if she spoke English. Ms. Hebshi said

yes, she speaks English and is a U.S. citizen.

15

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 16 of 27

83.

Pg ID 16

The officer told her he would stand by the door to make sure she did not flush

anything down the toilet.

84.

Ms. Hebshi badly needed to use the toilet, but given that she was handcuffed, a

male guard was standing at her door, and a video camera hung above the toilet, she did not.
85.

At approximately 4:40 p.m., Defendant Wasiukanis of Wayne County Airport

Authority Police conferred with Defendant FBI Special Agent John Brand, and they decided that
the three passengers, including Ms. Hebshi, should be strip searched.
86.

According to the standard operating procedures in effect for the Wayne County

Airport Authority, A person shall not be strip searched unless the person is being lodged into a
detention facility, by order of a court or there is reasonable cause to believe that the person is
concealing a weapon, controlled substance, or evidence of a crime.
87.

There were no facts suggesting that Ms. Hebshi was concealing a weapon, a

controlled substance, or any other evidence of a crime that might justify a strip search. The
decision to strip search Ms. Hebshi was made with no articulable facts connecting Ms. Hebshi to
criminal activity or providing probable cause.
88.

One hour passed before a female officer came to perform the strip search. During

the hour, no evidence emerged to suggest that Ms. Hebshi was involved in criminal activity,
carrying contraband, or otherwise had done anything that would provide reasonable suspicion or
probable cause justifying a strip search.
89.

Once on the scene, Defendant Toya Parker of the Wayne County Airport

Authority Police came into Ms. Hebshis cell and told her she was going to be strip searched.
90.

Ms. Hebshi was afraid and began to cry.

16

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 17 of 27

91.

Pg ID 17

Defendant Parker took off Ms. Hebshis handcuffs and told her to remove all

clothing, including her underwear and bra, so that she was completely naked. Defendant Parker
instructed Ms. Hebshi to stand facing the wall, away from the video camera, so that at least part
of her body would be concealed.
92.

Ms. Hebshi was instructed to bend over, spread her buttocks, and cough while

Officer Parker stood a couple of feet away and watched.

93.

Defendant Parker then instructed Ms. Hebshi to take her hair down from its

ponytail so Defendant Parker could feel through Ms. Hebshis hair.

94.

Defendant Parker lifted Ms. Hebshis eyelids and looked in her mouth.

95.

Finally, Defendant Parker told Ms. Hebshi to put her clothes back on.

96.

Ms. Hebshi was shocked and humiliated as a result of this search.

97.

Before leaving the cell, Officer Parker put the handcuffs back on Ms. Hebshis

98.

Ms. Hebshi asked the male officer at the door to her cell if she could call her

wrists.

husband, who did not know where she was. The officer told her she could use the phone later.
99.

After approximately two more hours, an officer came to get Ms. Hebshi and

brought her to an interview room where an FBI agent and, upon information and belief, a TSA
agent awaited her.
100.

Defendant Unknown FBI Officer 2 and Defendant Unknown TSA Officer 2 then

proceeded to question Ms. Hebshi about her family, her previous travel, and the two men sitting
next to her on the flight.
101.

Unknown FBI Officer 2 told Ms. Hebshi that someone had reported her and the

two men in her row as being engaged in suspicious activity during the flight.

17

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 18 of 27

Pg ID 18

102.

The interview lasted approximately half an hour.

103.

At the close of the interview, Ms. Hebshi, who had been detained for over three

hours, asked if she could use a toilet. The agents allowed her to use the officers restroom.
104.

Before Ms. Hebshi was returned to her cell, her handcuffs were removed, and she

was fingerprinted and asked her date and place of birth, weight, and height.
105.

Defendant Unknown TSA Officer 2 then came into Ms. Hebshis cell with Ms.

Hebshis phone and required that Ms. Hebshi show the Twitter messages she had sent out from
the airplane upon landing, as well as her Facebook profile.
106.

At approximately 7:30 p.m., Defendant Brand authorized the release of all three

suspects.
107.

Ms. Hebshi was finally allowed to call her husband and let him know that she was

okay and could leave soon. As soon as she started to speak to her husband, Ms. Hebshi cried.
108.

When Ms. Hebshi was finally allowed to leave the detention facility at

approximately 8:00 p.m., she saw the two other detained passengers, who had also been released,
as they reclaimed their bags.
109.

As a result of being arrested, detained, and strip searched, Ms. Hebshi continues

to experience anxiety when traveling. She also continues to feel distress and humiliation based
on this experience of being singled-out because of her ethnicity, race or national origin.

18

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 19 of 27

Pg ID 19

CAUSES OF ACTION
COUNT I
VIOLATION OF 42 U.S.C. 1981
Discrimination Based on Race or Ethnicity
(Defendant Frontier Airlines, Inc.)
110.

Ms. Hebshi re-alleges and incorporates by reference the allegations contained in

the previous paragraphs as if fully set forth herein.

111.

Intentional race discrimination in the formation and enforcement of contracts is

prohibited under 42 U.S.C. 1981.

112.

Mark Fraley, Sector Operations Control Shift Manager for Frontier Airlines, was

an employee of Defendant Frontier Airlines acting within the scope of his employment at all
times relevant to this complaint.
113.

Mr. Fraley identified Ms. Hebshi as a suspect because of her perceived ethnicity

114.

Defendant Frontier Airlines is liable for the unlawful acts of its agents and

or race.

employees directly and/or under the doctrine of respondeat superior.

115.

In reporting Ms. Hebshi to state and federal law enforcement agencies as a

security threat, Defendant Frontier Airlines engaged in intentional discrimination on the basis of
Ms. Hebshis perceived race, color, alienage, or ethnicity. In so doing, Defendant Frontier
Airlines discriminated against Ms. Hebshi in the making and enforcement of her contract with
Defendant Frontier Airlines, namely the ticket she purchased to travel on Frontier Airlines Flight
623 on September 11, 2011.
116.

Defendant acted with reckless or callous indifference to Ms. Hebshis right to be

free from discrimination in the making and enforcement of her contract with Frontier Airlines,
entitling her to punitive damages.
19

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 20 of 27

117.

Pg ID 20

Defendant Frontier Airlines actions deprived Ms. Hebshi of the right to make and

enforce contracts regardless of her race or ethnicity, in violation of 42 U.S.C. 1981.

118.

Ms. Hebshi suffered intentional discrimination from Frontier Airlines, which

singled her out as a suspect because of her name. Ms. Hebshi is a member of a protected class
under 1981 who, while receiving Frontier Airlines services as a passenger, was deprived of her
right to receive and enjoy those services and treated in a hostile and objectively discriminatory
manner.
COUNT II
VIOLATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Discrimination Based on Race, Ethnicity or National Origin
(Defendant Frontier Airlines, Inc.)
119.

Ms. Hebshi re-alleges and incorporates by reference the allegations contained in

the previous paragraphs as if fully set forth herein.

120.

Title VI and its implementing regulations prohibit recipients of federal financial

assistance from discriminating on the basis of, inter alia, race, color, or national origin.
121.

Mark Fraley, Sector Operations Control Shift Manager for Frontier Airlines, was

an employee of Defendant Frontier Airlines, acting within the scope of his employment at all
times relevant to this complaint.
122.

Mr. Fraley referred Ms. Hebshi to state and federal law enforcement to be

arrested, detained, and investigated because her perceived ethnicity, race or national origin based
on her name.
123.

Defendant Frontier Airlines is liable for the unlawful acts of its agents and

employees directly and/or under the doctrine of respondeat superior.

124.

Defendant Frontier Airlines is the recipient of federal funding and is therefore

subject to Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d.

20

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 21 of 27

125.

Pg ID 21

In reporting Ms. Hebshi to state and federal law enforcement agencies as a

security threat based on her ethnicity, race or national origin, Defendant Frontier Airlines
discriminated against Ms. Hebshi in violation of Title VI and its implementing regulations.
COUNT III
VIOLATION OF 49 U.S.C. 40127(A)
Discrimination Based on Race, Ethnicity or National Origin in Air Travel
(Defendant Frontier Airlines, Inc.)
126.

Ms. Hebshi re-alleges and incorporates by reference the allegations contained in

the previous paragraphs as if fully set forth herein.

127.

Title 49 U.S.C. 40127(a) prohibits an airline from subjecting a passenger to

discrimination on the basis of race, color, national origin, religion, sex, or ancestry.
128.

Mark Fraley, Sector Operations Control Shift Manager for Frontier Airlines, was

an employee of Defendant Frontier Airlines acting within the scope of his employment at all
times relevant to this complaint.
129.

Mr. Fraley identified Ms. Hebshi as a suspect, and so caused her to be referred to

state and federal law enforcement to be arrested, detained, and investigated because of her
perceived ethnicity, race, or national origin based on her name.
130.

Defendant Frontier Airlines is liable for the unlawful acts of its agents and

employees directly and/or under the doctrine of respondeat superior.

131.

In reporting Ms. Hebshi to state and federal law enforcement agencies as a

security threat based on her ethnicity, race, or national origin, Defendant Frontier Airlines
discriminated against Ms. Hebshi in violation of 49 U.S.C. 40127(a).

21

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 22 of 27

Pg ID 22

COUNT IV
VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS
EQUAL PROTECTION
Claim Under 42 U.S.C. 1983 and
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
(All Defendants Except United States of America, Toya Parker, and Frontier Airlines, Inc.)
132.

Ms. Hebshi re-alleges and incorporates by reference the allegations contained in

the previous paragraphs as if fully set forth herein.

133.

The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution, which is applicable to the federal government under the Fifth Amendment,
guarantees all persons equal protection of the laws.
134.

Defendants, who are employees of the Wayne County Airport Authority, the FBI,

the TSA, CBP, and ICE, arrested and detained Ms. Hebshi because of her perceived ethnicity,
race, or national origin based on her name and/or appearance. Defendants acted intentionally
and unlawfully in discriminating against Ms. Hebshi on account of her perceived ethnicity, race,
or national origin.
135.

Defendants acted under color of law and in the performance of their official duties

under federal, state, county, or municipal laws, ordinances, or regulations in arresting and
detaining Ms. Hebshi.
136.

Defendants conduct violated Ms. Hebshis clearly established constitutional right

to equal protection of the laws of the United States.

137.

Defendants acted with reckless indifference or callous disregard for Ms. Hebshis

right to equal protection of the laws, thus entitling her to punitive damages.
138.

These violations, as committed by employees of Wayne County Airport

Authority, are redressable under 42 U.S.C. 1983. These violations, as committed by

22

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 23 of 27

Pg ID 23

employees of the FBI, the TSA, CBP, and ICE, are redressable under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
COUNT V
VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS
UNREASONABLE SEIZURE
Claim Under 42 U.S.C. 1983 and
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
(All Defendants Except United States of America, Toya Parker, and Frontier Airlines, Inc.)
139.

Ms. Hebshi re-alleges and incorporates by reference the allegations contained in

the previous paragraphs as if fully set forth herein.

140.

The Fourth Amendment to the United States Constitution, which is applicable to

the States under the Fourteenth Amendment, prohibits unreasonable searches and seizures.
141.

Defendants, who are employees of the Wayne County Airport Authority, the FBI,

the TSA, CBP, and ICE collaborated to order and effectuate Ms. Hebshis arrest and detention.
Defendants acted intentionally and unlawfully in arresting and detaining Ms. Hebshi with no
articulable facts connecting Ms. Hebshi to criminal activity or providing probable cause.
142.

Defendants acted under color of law and in the performance of their official duties

under federal, state, county, or municipal laws, ordinances, or regulations in arresting and
detaining Ms. Hebshi.
143.

Defendants conduct violated Ms. Hebshis clearly established constitutional right

to be free from unreasonable seizures.

144.

Defendants acted with reckless indifference or callous disregard for Ms. Hebshis

right to be free from unreasonable seizures, thus entitling her to punitive damages.
145.

These violations, as committed by employees of Wayne County Airport

Authority, are redressable under 42 U.S.C. 1983. These violations, as committed by

23

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 24 of 27

Pg ID 24

employees of the FBI, the TSA, CBP, and ICE, are redressable under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
COUNT VI
VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS
UNREASONABLE SEARCH
Claim Under 42 U.S.C. 1983 and
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
(Defendants Parker, Wasiukanis and Brand)
146.

Ms. Hebshi re-alleges and incorporates by reference the allegations contained in

the previous paragraphs as if fully set forth herein.

147.

The Fourth Amendment to the United States Constitution, which is applicable to

the States under the Fourteenth Amendment, prohibits unreasonable searches and seizures.
148.

With no articulable facts connecting Ms. Hebshi to criminal activity or providing

probable cause, Defendants Wasiukanis and Brand intentionally and unlawfully ordered, and
Defendant Parker intentionally and unlawfully performed, a strip search of Ms. Hebshi in
violation of her right to be free from unreasonable searches.
149.

Defendants acted under color of law and in the performance of their official duties

under federal, state, county, or municipal laws, ordinances, or regulations in subjecting Ms.
Hebshi to a strip search.
150.

Defendants conduct violated Ms. Hebshis clearly established constitutional right

to be free from unreasonable searches and seizures.

151.

Defendants acted with reckless indifference or callous disregard for Ms. Hebshis

right to be free from unreasonable searches, thereby entitling her to punitive damages.
152.

These violations, as committed by Defendants Parker and Wasiukanis of the

Wayne County Airport Authority, are redressable under 42 U.S.C. 1983. These violations, as

24

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 25 of 27

Pg ID 25

committed by Defendant Brand of the FBI, are redressable under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
COUNT VII
CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
False Arrest and False Imprisonment
(United States of America)
153.

Ms. Hebshi re-alleges and incorporates by reference the allegations contained in

the previous paragraphs as if fully set forth herein. At all times relevant to the complaint,
Defendants Brand, Brumley, Pipis, Lakatos, and Devins and unknown agents of the FBI, TSA,
CBP, and ICE, were employees of the United States, acting in the scope of their employment
through their own actions and their directions to employees and agents, under circumstances that
would render the United States, if a private person, liable for the damages that their actions
caused Ms. Hebshi under Michigan law.
154.

Defendants Brand, Brumley, Pipis, Lakatos, and Devins and unknown agents of

the FBI, the TSA, CBP, and ICE, individually and as agents of the United States of America,
intentionally and unlawfully deprived Ms. Hebshi of her liberty by arresting and detaining her
for several hours with no articulable facts connecting Ms. Hebshi to criminal activity or
providing probable cause. These actions constitute the torts of false arrest and false
imprisonment under Michigan law because defendants acted with the intention of confining Ms.
Hebshi; the agents actions directly resulted in such confinement; and Ms. Hebshi was conscious
of her confinement.
155.

Under the Federal Tort Claims Act, the United States of America is liable for

these actions pursuant to 28 U.S.C. 1346(b) and 2674.

25

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 26 of 27

Pg ID 26

REQUEST FOR RELIEF

WHEREFORE, Plaintiff Shoshana Hebshi respectfully requests that this Court:
1. Declare that Defendant Frontier Airlines violated Ms. Hebshis rights to be free
from discrimination as a passenger under 42 U.S.C. 1981, Title VI of the Civil
Rights Act of 1964, and 49 U.S.C. 40127(a);
2. Declare that Ms. Hebshis constitutional rights to equal protection of the law
under the Fifth and Fourteenth Amendment have been violated;
3. Declare that Ms. Hebshis constitutional rights to be free of unreasonable searches
and seizures under the Fourth and Fourteenth Amendment have been violated;
4. Award Ms. Hebshi compensatory damages for the injury and distress she endured
and continues to endure as a result of Defendants unlawful conduct;
5. Award Ms. Hebshi punitive damages against the individual Defendants and
Frontier Airlines for their unlawful conduct;
6. Award Ms. Hebshi reasonable attorneys fees pursuant to 42 U.S.C. 1988; and
7. Grant any other relief the Court deems appropriate.
JURY DEMAND
Plaintiff respectfully requests a jury trial on all issues triable to a jury.

26

2:13-cv-10253-MOB-LJM Doc # 1 Filed 01/22/13 Pg 27 of 27

Pg ID 27

Respectfully submitted,
/s/ Sarah Mehta
Sarah Mehta (P76024)
Michael J. Steinberg (P43085)
Kary L. Moss (P49759)
American Civil Liberties Union
Fund of Michigan
2966 Woodward Avenue
Detroit, MI 48201
(313) 578-6823
smehta@aclumich.org
msteinberg@aclumich.org
kmoss@aclumich.org

/s/ William H. Goodman

William H. Goodman (P14173)
Julie H. Hurwitz (P34720)
Kathryn Bruner James (P71374)
Goodman & Hurwitz, P.C.
Cooperating Attorneys, American Civil
Liberties Union Fund of Michigan
1394 E. Jefferson Ave.
Detroit, MI 48207
(313) 567-6170
bgoodman@goodmanhurwitz.com
jhurwitz@goodmanhurwitz.com
kjames@goodmanhurwitz.com

/s/ Dennis D. Parker*

Dennis D. Parker
Rachel E. Goodman*
Ayirini Fonseca-Sabune*
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2500
(212) 549-2651
dparker@aclu.org
rgoodman@aclu.org
afonseca-sabune@aclu.org

/s/ Anna Engh

Anna Engh
Shelli Calland*
Arjun Sethi*
Sarah Tremont (P73809)
Covington & Burling LLP
1201 Pennsylvania Ave., N.W.
Washington D.C. 20004
(202) 662-6000
aengh@cov.com
scalland@cov.com
asethi@cov.com
stremont@cov.com
Attorneys for Plaintiff
* Application for admission pending

Dated: January 22, 2013

27

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

2014 WL 1308848
Only the Westlaw citation
is currently available.
United States District Court,
E.D. Michigan,
Southern Division.
Shoshana HEBSHI, Plaintiff,
v.
UNITED STATES of
America, et al., Defendants.

[2] federal agents and airport law enforcement

officers were not entitled to qualified
immunity.

Motions denied in part and denied as moot in

part.

West Headnotes (18)

[1]

Case No. 1310253. |

Signed March 31, 2014.

Federal Civil Procedure

Matters Deemed Admitted;
Acceptance as True of Allegations
in Complaint

Synopsis
Background: After she was forcibly removed
from airliner, detained, and subjected to a
strip search, passenger brought civil rights
action against, inter alia, federal agents and
airport law enforcement officers, alleging, inter
alia, discrimination based on race, ethnicity,
or national origin, and violations of the
Fourth, Fifth, and Fourteenth Amendments.
Defendants filed two motions to dismiss the
count charging them with Equal Protection
violations and also moved for stay of discovery.

To survive a motion to dismiss,

a complaint must contain sufficient
factual matter, accepted as true, to
state a claim to relief that is plausible
on its face; a claim is facially
plausible when a plaintiff pleads
factual content that permits a court
to reasonably infer that the defendant
is liable for the alleged misconduct.
Fed.Rules Civ.Proc.Rule 12(b)(6),
28 U.S.C.A.
Cases that cite this headnote

Holdings: The District Court, Terrence G.

Berg, J., held that:
[2]
[1] allegations were sufficient to state claims
for Equal Protection violations, and

Federal Civil Procedure

Insufficiency in General

Federal Civil Procedure

Matters Deemed Admitted;
Acceptance as True of Allegations
in Complaint
When assessing whether a plaintiff
has set forth a plausible claim on

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

motion to dismiss, district court must

accept all of the complaint's factual
allegations as true; mere conclusions,
however, are not entitled to the
assumption of truth. Fed.Rules
Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.

Cases that cite this headnote

[5]

Legal standard for adjudicating

a motion for judgment on the
pleadings is the same as for motion
to dismiss for failure to state a claim.
Fed.Rules Civ.Proc.Rule 12(b)(6),
(c), 28 U.S.C.A.

Cases that cite this headnote

[3]

Federal Civil Procedure

Insufficiency in General
To survive a motion to dismiss for
failure to state a claim, a complaint
must provide more than labels and
conclusions, or a formulaic recitation
of the elements of a cause of action;
threadbare recitals of the elements
of a cause of action, supported
by mere conclusory statements, do
not suffice. Fed.Rules Civ.Proc.Rule
12(b)(6), 28 U.S.C.A.

Cases that cite this headnote

[6]

Equal Protection Clause of the

Fourteenth Amendment forbids a
state from denying to any person
within its jurisdiction the equal
protection of the laws, and the
Fifth Amendment extends that
same prohibition to federal actors.
U.S.C.A. Const.Amends. 5, 14.

Federal Civil Procedure

Matters Considered in General
In ruling on a motion to dismiss
for failure to state a claim, Court
may consider the complaint as well
as (1) documents that are referenced
in the complaint or that are central
to plaintiff's claims, (2) matters of
which a court may take judicial
notice, and (3) documents that are
a matter of public record. Fed.Rules
Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.

Constitutional Law
Applicability to Governmental or
Private Action; State Action
Constitutional Law
Federal Government

Cases that cite this headnote

[4]

Federal Civil Procedure

Judgment on the Pleadings

Cases that cite this headnote

[7]

Constitutional Law
Similarly Situated Persons; Like
Circumstances
Constitutional Law
Similarly Situated Persons; Like
Circumstances

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

To state an equal protection claim,

a plaintiff must adequately plead
that the government treated the
plaintiff disparately as compared
to similarly situated persons and
that such disparate treatment either
burdens a fundamental right, targets
a suspect class, or has no rational
basis. U.S.C.A. Const.Amends. 5,
14.
Cases that cite this headnote
[8]

Officers and Public Employees

Actions by or Against Officers
and Employees
When a defendant raises a defense
of qualified immunity, plaintiff bears
burden of pleading facts that would
be sufficient to show that the
defendant is not entitled to its
protection.
Cases that cite this headnote

[9]

Civil Rights
Government Agencies and
Officers
Civil Rights
Good Faith and Reasonableness;
Knowledge and Clarity of Law;
Motive and Intent, in General
Qualified immunity shields federal
and state officials from money
damages unless a plaintiff pleads
facts showing (1) that the official
violated a statutory or constitutional

right, and (2) that the right was

clearly established at the time of the
challenged conduct.
Cases that cite this headnote
[10] Constitutional Law
Investigation, Arrest, and Search
United States
Criminal Law Enforcement and
Investigation; Prisoners' Claims
Allegation that federal agents
participated in decision to arrest
and detain airline passenger despite
a lack of probable cause or
articulable facts connecting her to
criminal activity, failed to request
further information or evidence
regarding her alleged involvement in
suspicious activities, and acted based
on her perceived ethnicity, and that
some of the agents were involved
in decision to strip-search her, were
sufficient to state a claim for an
Equal Protection violation. U.S.C.A.
Const.Amends. 4, 5.
Cases that cite this headnote
[11] Aviation
Injuries from Operation and
Maintenance of Airports in General
Constitutional Law
Investigation, Arrest, and Search
Allegation
that
airport
law
enforcement officers participated
in arrest and detention of airline

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

passenger despite a lack of probable

cause or articulable facts connecting
her to criminal activity, failed
to request further information or
evidence regarding her alleged
involvement in suspicious activities,
and acted based on her perceived
ethnicity, and that some of them were
involved in decision to strip-search
her, were sufficient to state a claim
for an Equal Protection violation.
U.S.C.A. Const.Amends. 4, 14.

strip-searched, no effort was made to

verify her identity or corroborate any
connection between her and the two
men seated in her row, she was asked
whether she was wearing explosives
and whether she spoke English, and
her prolonged detention and postdetention searches took place after
it was clear that no emergency or
probable cause existed. U.S.C.A.
Const.Amends. 4, 5, 14.
Cases that cite this headnote

Cases that cite this headnote

[12] Aviation
Injuries from Operation and
Maintenance of Airports in General

[13] Aviation
Injuries from Operation and
Maintenance of Airports in General

Constitutional Law
Investigation, Arrest, and Search

Civil Rights
Sheriffs, Police, and Other Peace
Officers

United States
Criminal Law Enforcement and
Investigation; Prisoners' Claims

United States
Criminal Law Enforcement and
Investigation; Prisoners' Claims

Allegations were sufficient, in

civil rights action against federal
agents and county airport authority
law enforcement officers alleging
violations of airline passenger's
Equal Protection rights, to make
plausible her claim that she
was treated differently from other
passengers, based on her race or
ethnicity; passenger, an American
citizen, had a last name of Arabic
origin, there were other passengers
on the plane who were not forcibly
removed, arrested, detained, and

Federal agents and airport law

enforcement officers were not
entitled to qualified immunity in
civil rights action alleging that
they deprived airline passenger
of equal protection by arresting,
detaining, and strip-searching her
on basis of her perceived ethnicity
and in the absence of probable
cause; the unlawfulness of the
defendants' actions was apparent
in the light of pre-existing law.
U.S.C.A. Const.Amends. 4, 5, 14.

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

Cases that cite this headnote

[14] Constitutional Law
Persons or Entities Protected
Constitutional
amendments
providing for equal protection of
the laws are universal in their
application, to all persons within
the territorial jurisdiction, without
regard to any differences of race,
of color, or of nationality; and the
equal protection of the laws is a
pledge of the protection of equal
laws. U.S.C.A. Const.Amends. 5, 14.
Cases that cite this headnote
[15] Constitutional Law
Race, National Origin, or
Ethnicity
Discrimination on the basis of
race, color, or nationality is illegal,
and the public administration which
enforces it is a denial of the
equal protection of the laws, and
a violation of the Fourteenth
Amendment of the Constitution.
U.S.C.A. Const.Amend. 14.
Cases that cite this headnote
[16] Civil Rights
Good Faith and Reasonableness;
Knowledge and Clarity of Law;
Motive and Intent, in General

It is not necessary to have a case

directly on point for a right to be
clearly established, as would entitle a
public official to qualified immunity;
it is sufficient that existing precedent
place the question beyond debate.
Cases that cite this headnote
[17] Civil Rights
Good Faith and Reasonableness;
Knowledge and Clarity of Law;
Motive and Intent, in General
Under the standard applicable to an
assertion of entitlement to qualified
immunity, conduct violates clearly
established law when, at time of
the challenged conduct, the contours
of a right are sufficiently clear that
every reasonable official would have
understood that what he is doing
violates that right.
Cases that cite this headnote
[18] Constitutional Law
Investigation, Arrest, and Search
Arresting or detaining someone
because of her race, ethnicity, or
national origin is a clear violation of
a clearly established right to equal
protection. U.S.C.A. Const.Amends.
5, 14.
Cases that cite this headnote

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

Attorneys and Law Firms

Julie H. Hurwitz, Kathryn Bruner James,
Miriam R. Nemeth, William H. Goodman,
Goodman & Hurwitz P.C., Sarah L. Mehta,
Michael J. Steinberg, American Civil Liberties
Union of Michigan, Detroit, MI, for Plaintiff.
Opinion
ORDER DENYING DEFENDANTS'
MOTIONS FOR PARTIAL JUDGMENT
ON THE PLEADINGS, TO DISMISS
COUNT IV, AND TO STAY DISCOVERY

on September 11, 2011, was in violation of

her rights to Equal Protection under the United
States Constitution. The parties have fully
briefed the motions, and oral argument was
heard on February 10, 2014. Defendants have
also moved for a stay of discovery pending
resolution of these motions relating to qualified
immunity.
For the reasons set forth below, Defendants'
motions to dismiss and for judgment on the
pleadings (Dkts. 57, 69) are DENIED, and the
motions to stay discovery (Dkts. 66, 70) are
DENIED as moot.

TERRENCE G. BERG, District Judge.

I. FACTUAL BACKGROUND
*1 This matter is before the Court on
a motion to dismiss Count IV (Dkt. 57)
brought by Defendants Robert Ball, John
Brand, Paul Brumley, Nathaniel Devins, and
David Lakatos, all of whom are federal
law enforcement officials or agents (Federal
Agent Defendants), and a motion for
partial judgment on the pleadings to dismiss
Count IV (Dkt. 69) brought by Defendants
Jeremy Bohn, Corporal Bradley, Lieutenant
M. Wasiukanis, Captain Patrick Driscoll,
Mark DeBeau, Officer Grant, Toya Parker,
Detective Carmona, and Officer Johnson,
who are law enforcement officers of the
Wayne County Airport Authority (WCAA
Defendants). The motions are brought under
Federal Rule of Civil Procedure 12(b)(6)
and 12(c), respectively, and both assert that
the individual law enforcement defendants
are entitled to qualified immunity as to
Plaintiff's claims that her arrest and detention

A. The Parties.
Plaintiff Shoshana Hebshi is a natural person,
a United States citizen, a resident of Ohio, and
the daughter of a Jewish mother and a father
who emigrated from Saudi Arabia. (Dkt. 1
12.)
Defendant United States of America is a
sovereign state and the employer of Defendants
Robert Ball, John Brand, Paul Brumley,
Nathaniel Devins, and David Lakatos. (Id.
13, 15, 30, 31, 33, 36.)
Defendant Frontier Airlines is an airline
headquartered in Denver, Colorado, and was
the operator of flight 623 from Denver to
Detroit on September 11, 2011, upon which
Plaintiff was a passenger. (Id. 14, 41.)

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

Defendants Robert Ball, John Brand, Paul

Brumley, Nathaniel Devins, and David Lakatos
are federal law enforcement agents who
allegedly participated in the seizure, detention,
and searches of Plaintiff's person and personal
effects as described below. (Id. 15, 30, 31,
33, 36.)
Defendants Jeremy Bohn, Corporal Bradley,
Lieutenant M. Wasiukanis, Captain Patrick
Driscoll, Mark DeBeau, Officer Grant, Toya
Parker, Detective Carmona, and Officer
Johnson are Wayne County Airport Authority
(WCAA) law enforcement agents who
allegedly participated in the seizure, detention,
and searches of Plaintiff's person and personal
effects as described below. (Id. 1927.)
In addition, Plaintiff has also named six
unknown federal agents as Defendants. (Id.
16, 17, 28, 32, 34, 35.)Plaintiff had also
named federal agents John Etling and Thomas
Pipis as defendants, but they were voluntarily
dismissed from the case. (Id. 18, 29; Dkts.
54, 55.)

B. Allegations Made in the Complaint.

*2 Plaintiff's primary allegations are
summarized in the first paragraph of the
Complaint:
On September 11, 2011,
Plaintiff Shoshana Hebshi
flew on Frontier Airlines
flight
623....
Upon
landing, heavily armed
agents forcibly removed
[Plaintiff] from the airplane;

handcuffed, pat searched,

and strip searched her; and
locked her in a cell at Detroit
Metropolitan Wayne County
Airport before interrogating
her. [She] was detained for
approximately four hours
before being released with no
charges.
(Dkt. 1 1.) The details follow.
Plaintiff Shoshana Hebshi is a United States
citizen whose first name is of Hebrew origin
and surname is of Saudi Arabian origin. (Id.
12.)Plaintiff, traveling alone, flew on Frontier
Airlines flight 623 from Denver to Detroit on
September 11, 2011. (Id. 39, 4142.)She sat
in seat 12A and did not leave her seat at any
time during the flight. (Id. 42.)
Seated next to Plaintiff, in seats 12B and 12C,
were two men of South Asian descent. (Id.
43.)Plaintiff did not know these men and did
not speak to them at any time. (Id. 44.)
During the flight, some flight attendants and
passengers noticed that the two men seated
in [Plaintiff's] row were acting in a way
that they considered to be suspicious.(Id.
45.)Specifically, these flight attendants and
passengers alleged that the men went to the
restroom around the same time and each spent
ten, fifteen[,] or twenty minutes there. Some
passengers and flight attendants also reported
that the men were standing in the aisle for long
periods.(Id.) None of the passengers or crew

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

observed or reported anything suspicious about

Plaintiff. (Id. 46.)
Shortly before 3:00 p.m., flight attendants
alerted the pilot ... that two men of possibly
Arab descent had been observed repeatedly
going to the bathroom and standing in the
aisle for long periods....(Id. 47.)The pilot
then sent a message through the Aircraft
Communications Addressing and Reporting
System ... asking for information about the
passengers seated in 12B and 12C, whom he
and the flight attendants believed were acting
strangely....(Id. 48.)
The pilot's message was received by Mark
Fraley, a Frontier Airlines employee, who
forwarded the message by e-mail to several
people, including other Frontier staff. (Id.
49.)He provided the names of the passengers
in 12B and 12C, and also included Plaintiff's
name as the passenger in 12A, noting that she
might also be with them. (Id.)
Tammara Faforke, a Frontier Airlines
employee, passed Fraley's e-mail to a
Transportation Security Administration air
marshal and Officer Duncan, a WCAA police
officer. (Id. 51.)Officer Duncan then passed
the e-mail to another WCAA officer, Defendant
Grant. (Id.) Defendant Grant relayed the
information from the e-mail, including that
Plaintiff may be traveling with the two men, to
Defendants Driscoll and Carmona, also WCAA
officers. (Id. 52.)

County Airport Authority and reported the

suspicious passenger behavior on flight 623.
(Id. 53.)
At approximately 3:00 p.m., Defendants Bohn
of WCAA, Lakatos and Ball (federal agents),
and other law enforcement officers went to
a designated inspection site to wait for the
airplane to arrive. (Id. 54.)At the inspection
site, Defendant WCAA Officer Johnson ...
spoke via cell phone with [the plane's captain],
who told Officer Johnson that a male passenger
from row 12 had entered the ... restroom for
a long period ... while the other man from
row 12 stood outside.(Id. 55.)According
to Defendant Johnson ... the captain stated
that a third passenger seated in 12A may also
be involved in the incident but is seated and
compliant at this time.(Id.)
None of the officers requested further evidence
regarding Plaintiff's involvement in suspicious
activities. (Id. 56.)
The responding agencies, which included
several federal agencies as well as the WCAA
police, collaborated and put in place a plan to
divert and board the aircraft, arrest all three
passengers, and remove them to a detention
facility for questioning. (Id. 57.)
Defendant WCAA Officer Grant organized the
tactical entry of the flight with the assistance
of Defendant WCAA Officer Johnson and
officers from United States Customs and
Border Protection. (Id. 58.)

*3
The
Transportation
Security
Administration also contacted the Wayne

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

Defendant
WCAA
Captain
Driscoll
recommended to Defendant DeBeau, WCAA
Vice President of Public Safety, that all three
passengers be removed and taken to a detention
facility for further investigation. Defendant
DeBeau authorized the plan. (Id. 5960.)
At approximately 4:25 p.m., Defendants
[WCAA officers] Carmona, Bohn, Johnson
[,][and] ... [federal agent] Brumley, along
with other officers, boarded the plane, heavily
armed, and ran down the aisle....(Id.
68.)The officers stopped at Plaintiff's row and
yelled at all three passengers to get up.(Id.
70.)Defendant WCAA Detective Carmona put
Plaintiff in handcuffs, and all three passengers
were forcibly rushed down the aisle and off the
plane.(Id. 7273.)
After she was removed from the plane, an
unidentified officer pushed Plaintiff roughly
against a police car, made her spread her
legs while he pat searched her, and asked her
if she was wearing explosives. (Id. 75
76.)Plaintiff answered that she was not wearing
explosives. (Id. 76.)
By this point, Plaintiff had twice asked the
officers for an explanation of what was
happening, and was not given a reply. (Id.
71, 77.)
Defendant WCAA Corporal Bradley put
Plaintiff in a police car with one of the two
men who had also been removed from the
plane, and drove them to Building 358. (Id.
78.)After they reached the building, Plaintiff,
still handcuffed, was removed from the car and

placed in a cell that was approximately six feet

by ten feet with a metal cot and a video camera
hanging over the toilet. (Id. 8081.)
*4 An unidentified male officer came to the
door of the cell and asked Plaintiff if she spoke
English, to which she said yes and added that
she is an American citizen. (Id. 82.)The
officer told her he would stand by the door to
make sure she did not flush anything down
the toilet.(Id. 83.)Plaintiff badly needed to
use the toilet, but because she was handcuffed,
a male guard was at the door, and there was a
video camera above the toilet, she did not. (Id.
84.)
At approximately 4:40 p.m., Defendants
WCAA Lieutenant Wasiukanis and federal
agent Brand conferred and decided that all
three passengers should be strip searched.
(Id. 85.)The standard operating procedures
in effect for the Wayne County Airport
Authority provided that [a] person shall not
be strip searched unless the person is being
lodged into a detention facility, by order of a
court or there is reasonable cause to believe that
the person is concealing a weapon, controlled
substance, or evidence of a crime.(Id. 86.)
An hour later, Defendant WCAA Officer
Parker arrived and told Plaintiff she was going
to be strip searched. Plaintiff was afraid and
began to cry. WCAA Officer Parker performed
the strip search of Plaintiff, during which
Plaintiff's handcuffs were removed and she
was made to remove all of her clothing so
that she was completely naked, told to face
the wall, bend over, spread her buttocks, and

2014 Thomson Reuters. No claim to original U.S. Government Works.

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

cough while Defendant WCAA Officer Parker

watched.(Id. 8892.)Defendant Parker then
felt through Plaintiff's hair, lifted Plaintiff's
eyelids, and looked into her mouth. (Id. 93
94.)Plaintiff was then told to dress, after which
Defendant Parker put the handcuffs back on
Plaintiff. (Id. 97.)
Approximately two hours later, Plaintiff was
taken to an interview room where two
unidentified federal agents questioned her for
approximately 30 minutes.(Id. 99102.)The
agents questioned her about her family, her
previous travel, and the two men who were
seated next to her. (Id. 100.)
Before she was permitted to leave, an unknown
federal agent required that [Plaintiff] show the
Twitter messages she had sent out from the
airplane upon landing, as well as her Facebook
profile.(Id. 105.)
At approximately 7:30 p.m., Defendant federal
agent Brand authorized the release of the three
passengers. (Id. 106.)

C. Plaintiff's Claims.
Counts I, II, and III are brought against
Frontier Airlines for violation of 42 U.S.C.
1981, 42 U.S.C. 2000d, and 49 U.S.C.
40127(A), respectively. All of these claims
involve allegations of discrimination based on
race, ethnicity, or national origin. (Id. 110
31.)
Count IV is brought against the individual
Federal Agent Defendants and all of the

WCAA Defendants except WCAA Officer

Toya Parker for violation of Equal Protection
under the Fifth and Fourteenth Amendments.
(Id. 13238.)
*5 Count V is brought against the individual
Federal Agent Defendants and all of the
WCAA Defendants except WCAA Officer
Toya Parker for Unreasonable Seizure under
the Fourth and Fourteenth Amendments. (Id.
13945.)
Count VI is brought against Defendants
federal agent Brand, WCAA Officer Parker,
and WCAA Lieutenant Wasiukanis for
Unreasonable Search under the Fourth and
Fourteenth Amendments. (Id. 14652.)
Count VII is brought against the United
States of America for False Arrest and False
Imprisonment under the Federal Tort Claims
Act. (Id. 15355.)

II. LEGAL STANDARD

[1] [2] [3] A Rule 12(b)(6) motion tests
whether a legally sufficient claim has been
pleaded, and provides for dismissal when a
plaintiff fails to state a claim upon which relief
can be granted. Fed.R.Civ.P. 12(b)(6).To
survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted
as true, to state a claim to relief that is
plausible on its face.Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S.Ct. 1955, 167

2014 Thomson Reuters. No claim to original U.S. Government Works.

10

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

L.Ed.2d 929 (2007)). A claim is facially

plausible when a plaintiff pleads factual content
that permits a court to reasonably infer
that the defendant is liable for the alleged
misconduct. Id. (citing Twombly, 550 U.S.
at 556, 127 S.Ct. 1955). When assessing
whether a plaintiff has set forth a plausible
claim, the district court must accept all of
the complaint's factual allegations as true.
See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d
509, 512 (6th Cir.2001). Mere conclusions,
however, are not entitled to the assumption
of truth. While legal conclusions can provide
the complaint's framework, they must be
supported by factual allegations.Iqbal, 556
U.S. at 664, 129 S.Ct. 1937.A plaintiff must
provide more than labels and conclusions,
or a formulaic recitation of the elements
of a cause of action.Twombly, 550 U.S. at
556, 127 S.Ct. 1955.Therefore, [t]hreadbare
recitals of the elements of a cause of action,
supported by mere conclusory statements, do
not suffice.Iqbal, 556 U.S. at 678, 129 S.Ct.
1937.
[4] In ruling on a motion to dismiss, the
Court may consider the complaint as well as (1)
documents that are referenced in the plaintiff's
complaint or that are central to plaintiff's
claims, (2) matters of which a court may take
judicial notice, and (3) documents that are a
matter of public record. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308,
322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007);
see also Greenberg v. Life Ins. Co. of Virginia,
177 F.3d 507, 514 (6th Cir.1999) (finding that
documents attached to a motion to dismiss that

are referred to in the complaint and central to

the claim are deemed part of the pleadings).
[5] The legal standard for adjudicating a Rule
12(c) motion is the same as for a 12(b)(6)
motion. See Lindsay v. Yates, 498 F.3d 434, 437
n. 5 (6th Cir.2007).

III. ANALYSIS
Both the Federal Agent Defendants and the
WCAA Defendants have moved to dismiss
Plaintiff's Equal Protection claims under Count
IV of the Complaint, asserting that their
conduct is protected by qualified immunity,
and that therefore Plaintiff's claims fail to state
a claim upon which relief can be granted. (Dkts.
57 & 69.)
*6 [6] The Equal Protection Clause of the
Fourteenth Amendment forbids a state from
denying to any person within its jurisdiction
the equal protection of the laws.U.S. Const.
amend. XIV, 1. The Fifth Amendment
extends that same prohibition to federal actors.
See, e.g., Bolling v. Sharpe, 347 U.S. 497, 500,
74 S.Ct. 693, 98 L.Ed. 884 (1954).
[7] To state an equal protection claim,
a plaintiff must adequately plead that the
government treated the plaintiff disparately
as compared to similarly situated persons and
that such disparate treatment either burdens
a fundamental right, targets a suspect class,
or has no rational basis.Ctr. for BioEthical
Reform, Inc. v. Napolitano, 648 F.3d 365, 379
(6th Cir.2011) (quoting Club Italia Soccer &

2014 Thomson Reuters. No claim to original U.S. Government Works.

11

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

Sports Org., Inc. v. Charter Twp. of Shelby,

Mich., 470 F.3d 286, 299 (6th Cir.2006)).
The analysis is the same under the Fifth
Amendment for the Federal Agent Defendants
and under the Fourteenth Amendment for the
WCAA Defendants. See Ctr. for BioEthical
Reform, Inc., 648 F.3d at 379.

A. Plaintiff Adequately Alleges that

Defendants Violated a Constitutional
Right.
[10] Plaintiff has alleged that each of the
Federal Agent Defendants and the WCAA
Defendants, except for Toya Parker, violated
her right to equal protection of the laws
[8] [9] When a defendant raises a defense with both her arrest and detention, but
of qualified immunity, the plaintiff bears only those claims supported by sufficient
the burden of pleading facts that would factual allegations can survive the Defendants'
be sufficient to show that the defendant motions to dismiss. See, e.g., Iqbal, 556
is not entitled to its protection. See Reilly U.S. at 678, 129 S.Ct. 1937.Considering the
v. Vadlamudi, 680 F.3d 617, 623 (6th allegations in the Complaint, Plaintiff met
Cir.2012).Qualified immunity shields federal her burden of adequately pleading that the
and state officials from money damages unless individual defendants treated her disparately
a plaintiff pleads facts showing (1) that the as compared to similarly situated persons and
official violated a statutory or constitutional that such disparate treatment either burdens a
right, and (2) that the right was clearly fundamental right, targets a suspect class, or
established at the time of the challenged has no rational basis.Club Italia Soccer &
conduct.Ashcroft v. al-Kidd, U.S. , Sports Org., Inc. v. Charter Twp. of Shelby,
131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) Mich., 470 F.3d 286, 299 (6th Cir.2006).
(quoting Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
1. The Arguments of Federal Agent
Defendants and the WCAA Defendants.
For the reasons explained below, the Court
*7 The Federal Agent Defendants make two
finds that Count IV of the Complaint has
arguments in their motion to dismiss Count IV:
alleged facts that, when viewed in the
light most favorable to Plaintiff, would
i. Plaintiff has failed to plead facts stating
establish that the conduct of the Federal
an equal protection claim against the
Agent Defendants and the WCAA Defendants
individual Federal Agent Defendants.
violated a constitutional right that was clearly
established. Count IV therefore states an Equal
a. Plaintiff fails to identify what each
Protection violation claim upon which relief
defendant did to violate the equal
can be granted, and Defendants' motions
protection clause.
to dismiss and for partial judgment on the
b. Plaintiff's only allegation of
pleadings must be denied. 1
discrimination is conclusory.

2014 Thomson Reuters. No claim to original U.S. Government Works.

12

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

c. Plaintiff's claim of discriminatory

animus by these defendants is not
plausible.
ii. To the extent Plaintiff has alleged the
violation of a constitutional right by each
of these defendants, the right as not clearly
established.
(Dkt. 56 at 1626.)
The WCAA Defendants make one argument
in their motion for partial judgment on the
pleadings as to Count IV:
i. Plaintiff's allegations fail to state a facially
plausible claim under the Equal Protection
Clause.
a. Plaintiff's Allegation of Intentional
Discrimination is not entitled to the
assumption of truth.
b. Plaintiff's remaining allegations do not
plausibly suggest entitlement to relief.
(Dkt. 69 at 2128.) The WCAA Defendants'
arguments challenging the sufficiency of the
Complaint as to Count IV are essentially the
same as the first argument made by the Federal
Agent Defendants. They suggest that Plaintiff's
complaint contains one allegation of intentional
discrimination and that it is not entitled to the
assumption of truth because it is conclusory.
(Dkt. 69 at 2122.)

2. The Specific Allegations Against the

Federal Agent Defendants.

The Federal Agent Defendants contend that

Plaintiff's complaint contains one allegation of
discriminatory motive asserted against thirteen
defendants, and that Plaintiff's solitary
allegation of discrimination, Compl. 56,
lumps all of the defendants together without
specifying what any individual defendant
did.(Dkt. 57 at 17.) These statements cannot
be reconciled with Plaintiff's allegations, taken
as a whole. As to each of the Federal
Agent Defendants, Plaintiff's allegations are as
follows:
Robert Ball, the Transportation Security
Administration's
Federal
Security
Director for Detroit ( 33): Participated in
the decision to arrest and detain Plaintiff
despite a lack of probable cause or
articulable facts connecting Plaintiff to
criminal activity ( 33); went to wait for
the plane at the inspection site ( 54);
and did not request further information
or evidence regarding Plaintiff's alleged
involvement in suspicious activities, and
acted based on the perceived ethnicity,
national origin, or race of Plaintiff ( 56).

John Brand, Federal Bureau of

Investigation Special Agent ( 15):
Participated in the decisions to arrest,
detain, strip search, and interrogate
Plaintiff despite a lack of probable cause
or articulable facts connecting Plaintiff
to criminal activity ( 15); did not
request further information or evidence
regarding Plaintiff's alleged involvement
in suspicious activities, and acted based
on the perceived ethnicity, national origin,
or race of Plaintiff ( 56); conferred with

2014 Thomson Reuters. No claim to original U.S. Government Works.

13

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

Defendant Wasiukanis and decided that

Plaintiff should be strip-searched ( 85);
and authorized the release of Plaintiff (
106).

regarding Plaintiff's alleged involvement

in suspicious activities, and acted based on
the perceived ethnicity, national origin, or
race of Plaintiff ( 56).

*8 Paul Brumley, Immigration and

Customs Enforcement Special Agent (
36): Participated in the decision to arrest
Plaintiff despite a lack of probable cause
or articulable facts connecting Plaintiff
to criminal activity ( 36); did not
request further information or evidence
regarding Plaintiff's alleged involvement
in suspicious activities, and acted based on
the perceived ethnicity, national origin, or
race ( 56); and boarded the plane, heavily
armed ( 72).

When considered with all of the other

allegations in the complaint, these allegations
are sufficient to support Count IV against each
of the Federal Agent Defendants. 2

3. The Specific Allegations Against the

WCAA Defendants.
[11] Plaintiff's allegations against each of the
WCAA Defendants, except for Toya Parker,
are as follows:

Nathaniel Devins, Customs and Border

Patrol Officer ( 31): Participated in the
decision to arrest and detain Plaintiff
despite a lack of probable cause or
articulable facts connecting Plaintiff to
criminal activity ( 31); went to wait for
the plane at the inspection site ( 54);
and did not request further information
or evidence regarding Plaintiff's alleged
involvement in suspicious activities, and
acted based on the perceived ethnicity,
national origin, or race of Plaintiff ( 56).
David Lakatos, Customs and Border Patrol
Officer ( 30): Participated in the decision
to arrest and detain Plaintiff despite a
lack of probable cause or articulable facts
connecting Plaintiff to criminal activity
( 30); went to wait for the plane
at the inspection site ( 54); did not
request further information or evidence

Jeremy Bohn, the WCAA Police

OfficerinCharge ( 20): Participated in
Plaintiff's arrest and transportation to the
detention site despite a lack of probable
cause or articulable facts connecting
Plaintiff to criminal activity ( 20); went
to wait for the plane at the inspection site
( 54); did not request further information
or evidence regarding Plaintiff's alleged
involvement in suspicious activities, and
acted based on the perceived ethnicity,
national origin, or race of Plaintiff ( 56);
and boarded the plane, heavily armed (
72).

Corporal Bradley, WCAA Police Officer

( 27): Arrested and transported Plaintiff
to the detention facility despite a lack
of probable cause or articulable facts
connecting Plaintiff to criminal activity (
27); did not request further information
or evidence regarding Plaintiff's alleged

2014 Thomson Reuters. No claim to original U.S. Government Works.

14

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

involvement in suspicious activities, and

acted based on the perceived ethnicity,
national origin, or race of Plaintiff ( 56);
and put Plaintiff in the back of a police
car with one of the men from her row, and
transported them to the detention facility
( 78).
Lieutenant Wasiukanis, WCAA Police
Officer ( 22): Participated in the arrest,
detention, and decision to strip-search
Plaintiff despite a lack of probable cause
or articulable facts connecting Plaintiff
to criminal activity ( 22); did not
request further information or evidence
regarding Plaintiff's alleged involvement
in suspicious activities, and acted based
on the perceived ethnicity, national origin,
or race of Plaintiff ( 56); and conferred
with Defendant Brand and decided that
Plaintiff should be strip-searched ( 85).
*9 Captain Patrick Driscoll, WCAA
Police Special Response Unit Officer (
21): Participated in the decision to arrest,
handcuff, and detain Plaintiff despite a
lack of probable cause or articulable
facts connecting Plaintiff to criminal
activity ( 21); received the Fraley
message, including Plaintiff's name,
from Defendant Grant ( 52); did not
request further information or evidence
regarding Plaintiff's alleged involvement
in suspicious activities, and acted based
on the perceived ethnicity, national origin,
or race of Plaintiff ( 56); and determined
that a tactical entry was needed and
recommended to Defendant DeBeau that
all three passengers in row 12 be removed

from the plane and taken to the detention

facility for further investigation ( 59).
Mark DeBeau, WCAA Vice President
of Public Safety ( 19): Participated in
the decision to arrest Plaintiff despite a
lack of probable cause or articulable facts
connecting Plaintiff to criminal activity (
19); did not request further information
or evidence regarding Plaintiff's alleged
involvement in suspicious activities, and
acted based on the perceived ethnicity,
national origin, or race of Plaintiff ( 56);
was present at the inspection site ( 60);
and authorized Defendant Driscoll's plan
to remove all three from the plane and take
them to the detention facility ( 60).
Officer Grant, WCAA Police Special
Response Unit Officer ( 24): Part of the
team that planned and executed the arrest
of Plaintiff despite a lack of probable
cause or articulable facts connecting
Plaintiff to criminal activity ( 24);
received the Fraley message, including
Plaintiff's name, from Officer Duncan
( 51); relayed the Fraley message,
including Plaintiff's name, to Defendants
Driscoll and Carmona ( 52); did not
request further information or evidence
regarding Plaintiff's alleged involvement
in suspicious activities, and acted based on
the perceived ethnicity, national origin, or
race of Plaintiff ( 56); and organized the
tactical entry of the plane with Defendant
Johnson and others ( 58).
Detective Carmona, WCAA Police Officer
( 25): Participated in the arrest of

2014 Thomson Reuters. No claim to original U.S. Government Works.

15

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

Plaintiff despite a lack of probable cause

or articulable facts connecting Plaintiff
to criminal activity ( 25); received
the Fraley message, including Plaintiff's
name, from Defendant Grant ( 52);
did not request further information or
evidence regarding Plaintiff's alleged
involvement in suspicious activities, and
acted based on the perceived ethnicity,
national origin, or race of Plaintiff ( 56);
boarded the plane, heavily armed ( 72);
and placed Plaintiff in handcuffs and the
man in 12B in flex-cuffs ( 72).
Officer Johnson, WCAA Police K9 Officer
( 26): Participated in the arrest of
Plaintiff despite a lack of probable cause
or articulable facts connecting Plaintiff
to criminal activity ( 26); was at the
inspection site ( 55); spoke by phone with
pilot, who told him that a male passenger
from row 12 had entered the ... restroom
for a long ... time, while the other man
from row 12 stood outside, and that a
third passenger seated in 12A may also
be involved in the incident but is seated
and compliant at this time ( 55); did not
request further information or evidence
regarding Plaintiff's alleged involvement
in suspicious activities, and acted based on
the perceived ethnicity, national origin, or
race of Plaintiff ( 56); assisted Defendant
Grant with organizing tactical entry of
the plane ( 58); and boarded the plane,
heavily armed ( 72).
*10 When considered with all of the other
allegations in the complaint, these allegations

are sufficient support Count IV against all of

the WCAA Defendants. 3

4. The Complaint Pleads a Plausible Equal

Protection Claim Against the Federal Agent
and WCAA Defendants.
The Federal Agent Defendants argue that
Plaintiff's claim in Paragraph 56 of the
Complaint, that they acted based on the
perceived ethnicity, national origin, or race of
[Plaintiff's] name, is conclusory. (Dkt. 57 at
17.) The WCAA Defendants make the same
argument as to Paragraphs 134 and 136. (Dkt.
69 at 21.) These arguments would be valid if
Paragraphs 56, 134, and 136 were the only
allegations made relevant to Count IV, but
they are not. Paragraphs 56, 134, and 136, like
Paragraphs 7 and 62, are not unsupported or
isolated conclusory statements. Rather, they are
the logical summation of a probable conclusion
that follows from all of the alleged facts
together. The complaint contains sufficient
factual matter, accepted as true, to state a claim
to relief that is plausible on its face.Iqbal, 556
U.S. at 678, 129 S.Ct. 1937 (quoting Twombly,
550 U.S. at 555, 127 S.Ct. 1955).
Unlike in Iqbal and Center for BioEthical
Reform, the Complaint in this case, and
Count IV specifically, is directed only at law
enforcement officers who were present and
personally involved in the discrete and direct
acts that allegedly violated Plaintiff's civil
rights.
When Iqbal reached the Supreme Court,
it was on a petition from John Ashcroft,

2014 Thomson Reuters. No claim to original U.S. Government Works.

16

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

former Attorney General of the United States,

and Robert Mueller, then the Director of
the Federal Bureau of Investigation, who
were just two of the 34 named individual
defendants. The complaint allege[d] that
they adopted an unconstitutional policy that
subjected respondent to harsh conditions of
confinement on account of his race, religion,
or national origin.Iqbal, 556 U.S. at 666, 129
S.Ct. 1937.It was only those indirect claims
against the highest-ranking officials who
never had personal contact with the prisonerplaintiffs that were the subject of the Supreme
Court's analysis. The claims against the other
individual defendants survived motions to
dismiss before the trial court, and those rulings
were upheld on appeal. See Iqbal v. Hasty, 490
F.3d 143 (2d Cir.2007), cert. granted, cause
remanded, 556 U.S. 1256, 129 S.Ct. 2430,
174 L.Ed.2d 226 (2009), and cert. granted,
cause remanded sub nom.Sawyer v. Iqbal,
556 U.S. 1256, 129 S.Ct. 2431, L.Ed.2d
(2009), and rev'd and remanded sub
nom.Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009). 4
The claims in Center for BioEthical
Reform were against Janet Napolitano, then
Secretary of the Department of Homeland
Security, and Eric Holder, Attorney General
of the United States. The action was
challenging the policy, practice, procedure,
and/or custom of Defendants that targets for
disfavored treatment those individuals and
groups that Defendants deem to be rightwing
extremists'....Ctr. for BioEthical Reform, Inc.
v. Napolitano, 648 F.3d 365, 367 (6th Cir.2011)
(quoting the Amended Complaint). Like the

claims against Ashcroft and Mueller in Iqbal,

only much more far-fetched, the case involved
only indirect claims against very high-ranking
officials regarding some presumed policy, of
which there was little or no evidence. Id.
*11 Here, in contrast, Count IV is brought
against only those law enforcement officers
who are alleged to have been present at
the scene of Plaintiff's arrest and detention,
and who were directly involved in either the
decision to arrest and detain Plaintiff, or the
actual arrest and detention of Plaintiff, or both.
(Dkt. 1 15, 30, 31, 33, 36, 56, 85, 106.)
[12] Plaintiff claims that the law enforcement
officers treated her differently from the other
passengers based on her race or ethnicity,
and consequently violated her right to Equal
Protection of the law. The allegations are
sufficient to make Plaintiff's claim plausible.
(Id. 2, 3, 12, 39, 42, 4446, 4852, 55, 71,
76, 77, 82, 8588.)For example, it is alleged
that: Plaintiff has a last name of Arabic origin (
12); her father emigrated from Saudi Arabia (
12) and thus Plaintiff herself is of direct Saudi
Arabian descent and presumably has to some
degree the features typically associated with
persons from that part of the world; she was
traveling alone ( 39); she did not know and did
not speak with the two men seated in 12B and
12C ( 44); there were many other passengers
on the plane ( 45) who were not forcibly
removed, arrested, detained, and strip-searched
( 73, 85); the reports of suspicious behavior
did not involve any conduct by Plaintiff (
46); Frontier provided Plaintiff's name when it
indicated that Plaintiff might be with the two

2014 Thomson Reuters. No claim to original U.S. Government Works.

17

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

men ( 49, 51) (emphasis added); Defendant

WCAA officer Johnson stated that the pilot told
him that while Plaintiff may be involved in
the incident with the two men she was seated
and compliant at [that] time ( 55) (emphasis
added); no agent or officer made any effort
to verify Plaintiff's identity or corroborate any
connection between her and the two men (
56); and Plaintiff was asked whether she was
wearing explosives ( 76) and whether she
speaks English ( 82). These alleged facts,
along with the rest of the Complaint, which
must be taken as true, are a sufficient basis
on which to conclude, at this pleading stage,
that Plaintiff's claim of an Equal Protection
violation is plausible. The facts suggest that
while there might have been a reasonable basis
for removing the two men from the aircraft
in an expeditious manner in a safe location,
the reasonableness of the police action against
Plaintiff is so highly questionable that it allows
a greater inference that decision-making was
influenced by perceptions of Plaintiff's race,
national origin, or ethnicity. Cf. Iqbal, 556
U.S. at 682, 129 S.Ct. 1937 (finding purposeful
discrimination could not be plausibly inferred
because there was an obvious alternative
explanation for the arrests).
Even if the initial action of forcibly removing
Plaintiff from the plane could be seen as
reasonable in response to a possible emergency,
which the Court cannot conclude at this
time without further factual development,
the prolonged detention and post-detention
searches of Plaintiff as alleged took place
after it was clear that no emergency, and no
probable cause relating to Plaintiff, existed.

The Complaint makes out a plausible case

that Plaintiff was singled out because of her
ethnicity or race; the law enforcement officers,
despite being told only that it was possible
that Plaintiff was with the two men or may
be involved in the incident, made no efforts
to quickly and reasonably ascertain any facts
that might support or disprove Plaintiff's actual
involvement; and the arrest, detention, and
searches would not have occurred but for
Plaintiff's ethnicity or race. Plaintiff has stated
a well-pleaded Equal Protection claim.

B. Plaintiff Has Alleged the Violation of a

Clearly Established Constitutional Right.
*12 [13] [14] [15] Since 1868, the United
States Constitution has prohibited a state from
denying any person within its jurisdiction
the equal protection of the laws.U.S. Const.
amend. XIV, 1. The Fifth Amendment has
been held to extend that same prohibition
to federal actors. See, e.g., Bolling, 347
U.S. at 500, 74 S.Ct. 693; Ctr. for Bio
Ethical Reform, Inc., 648 F.3d at 379.These
provisions are universal in their application, to
all persons within the territorial jurisdiction,
without regard to any differences of race, of
color, or of nationality; and the equal protection
of the laws is a pledge of the protection of
equal laws.Yick Wo v. Hopkins, 118 U.S.
356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
Discrimination on the basis of race, color, or
nationality is therefore illegal, and the public
administration which enforces it is a denial
of the equal protection of the laws, and a
violation of the fourteenth amendment of the
constitution.Id. at 374, 6 S.Ct. 1064.

2014 Thomson Reuters. No claim to original U.S. Government Works.

18

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

The Federal Agent Defendants argue that

the right Plaintiff alleges they violated is
not clearly established. (Dkt. 57 at 2425.)
Specifically, they claim:
Plaintiff cannot credibly argue that every
reasonable official would believe that he
is violating a passenger's equal protection
rights when, in responding to a report of
suspicious activity from an airline on the
Tenth Anniversary of the 9/11 terrorist
attacks, including a report that the passenger
may also be involved in the incident and
might also be with the two men, he fails
to ask for additional information about the
passenger's involvement before removing all
suspects from the plane for investigation.
(Id.) This argument suggests that the only
allegedly unreasonable conduct was the
failure to ask for additional information
before removing the suspects; the Complaint
alleges many more facts, according to which
a reasonable officer should have known that
the arrest, search, and detention of Plaintiff,
based on limited evidence available, were
unreasonable.

(officials can still be on notice that their

conduct violates established law even in novel
factual circumstances)).
[17] Under the applicable standard, conduct
violates clearly established law when, at the
time of the challenged conduct, [t] he contours
of [a] right [are] sufficiently clear that every
reasonable official would have understood
that what he is doing violates that right. alKidd, 131 S.Ct. at 2083 (citing Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
97 L.Ed.2d 523 (1987)). Plaintiff's complaint
meets this standard.
[18] As discussed above, the Complaint
adequately alleges that Plaintiff was arrested
and detained because of her race, ethnicity,
or national origin, and that there was no
legal justification for either her arrest or
her detention. 5 See supra III.A. Arresting
or detaining someone because of her race,
ethnicity, or national origin is a clear violation

of a clearly established right. 6 See Whren

v. United States, 517 U.S. 806, 813, 116
S.Ct. 1769, 135 L.Ed.2d 89 (1996) ([T]he
Constitution prohibits selective enforcement
of the law based on considerations such as
[16] It is not necessary to have a case race.); Bolling, 347 U.S. at 499500, 74 S.Ct.
directly on point for a right to be clearly 693; Yick Wo, 118 U.S. at 374, 6 S.Ct. 1064;
established. It is sufficient that existing High v. Fuchs, 74 Fed.Appx. 499, 50203
precedent place the question beyond debate. (6th Cir.2003) ([Because] reasonable police
Nelms v. Wellington Way Apartments, LLC, officers could not disagree that enforcing laws
513 Fed.Appx. 541, 547 (6th Cir.2013) differently on the basis of race is clearly
(quoting Ashcroft v. al-Kidd, U.S. , prohibited, dismissal of [the] complaint on
131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 the basis of qualified immunity, even with a
(2011); citing Hope v. Pelzer, 536 U.S. 730, finding of probable cause for the prosecution of
741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) the citation, would be inappropriate. It is for the
2014 Thomson Reuters. No claim to original U.S. Government Works.

19

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848

fact-finder to determine whether ... the Officers

did in fact treat [Plaintiff] differently because
of his race when they issued the [citation].);
United States v. Avery, 137 F.3d 343, 35354
(6th Cir.1997) (A person cannot become the
target of a police investigation solely on the
basis of skin color.); United States v. Taylor,
956 F.2d 572, 58081 (6th Cir.1992) (Keith,
J., dissenting) (Equal protection principles
simply prohibit state actors from using a
citizen's race to catalyze this right to inquire.
).
*13 The fact that the initial investigation of
the Plaintiff arguably resulted because Frontier
suggested that Plaintiff might be with
the two other menmen whose suspicious
conduct consisted entirely of extended visits
to the toilet and standing in the aislesdoes
not change this result. While the Sixth Circuit
has suggested that selecting as the target of
investigation a person based on a tip from
an outside source might be constitutionally
permissible because the officers obviously
cannot control the race of the person they
investigate and ultimately contact, in that
case the court was discussing the pre-contact
stage of investigation and the justification for
initiating contact. United States v. Avery, 137

F.3d 343, 354 n. 5 (6th Cir.1997). The court

did not conclude that the tip would shield the
officers from liability regardless of how long
the person was detained and how unreasonable
the officer's actions were.
Based on the Plaintiff's allegations, which
are assumed to be true for the purpose of
deciding these motions, the unlawfulness of the
defendants' actions was apparent in the light of
pre-existing law.Risbridger v. Connelly, 275
F.3d 565, 569 (6th Cir.2002) (quoting Wilson v.
Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143
L.Ed.2d 818 (1999)).

IV. CONCLUSION
For the reasons set forth above, it is hereby
ORDERED that the Federal Agent Defendants'
motion to dismiss (Dkt. 57) and the WCAA
Defendants' motion for partial judgment on
the pleadings (Dkt. 69) as to Count IV
are DENIED. It is FURTHER ORDERED
that the Federal Agent Defendants' motion
to stay discovery (Dkt. 66) and the WCAA
Defendants' motion to stay discovery (Dkt. 70)
are DENIED as moot.

Footnotes
WCAA Defendant Toya Parker joined in the WCAA Defendants' motion for partial judgment on the pleadings (Dkt. 69), but she was
1
2

not among the Defendants against whom Plaintiff asserted Count IV. Thus dismissal of that Count against her is neither necessary
nor possible.
A nonexhaustive list of specific allegations important to the support of Count IV: Plaintiff's name, including that her last name is
Arab and her first name is of Hebrew origin ( 2, 12); her mother is Jewish and her father immigrated to the United States from
Saudi Arabia ( 12); she never left her seat during the flight ( 3, 42); she was traveling alone ( 39); she did not know the men
seated in 12B and 12C and did not speak with them during the flight ( 44); some flight attendants and passengers noticed that the
two men in 12B and 12C were acting in a way that they considered to be suspicious by taking long trips to the toilets and standing

2014 Thomson Reuters. No claim to original U.S. Government Works.

20

Steinberg, Michael 7/10/2014

For Educational Use Only

Hebshi v. U.S., --- F.Supp.2d ---- (2014)

2014 WL 1308848
in the aisles ( 45); no one on the flight observed or reported anything suspicious about Plaintiff or her conduct ( 46); the pilot sent
a message to Frontier Airlines dispatch asking for information about the passengers seated in 12B and 12C, whom he and the flight
attendants believed were acting strangely, this message did not seek information regarding Plaintiff or otherwise suggest Plaintiff
was acting suspiciously ( 48); Mark Fraley forwarded the pilot's message and included his own message indicating that Plaintiff
might also be with the two men ( 49) (emphasis added); the only information available to Fraley about Plaintiff was her name and
seat assignment ( 50); WCAA Defendants Grant, Driscoll, and Carmona all received Fraley's message, which included Plaintiff's
name and the pilot's initial message that sought information only about the two men in 12B and 12C and in no way identified Plaintiff
as a person of concern to the flight crew ( 49, 51, 52); WCAA Defendant Johnson spoke with the pilot via telephone and, according
to the statement of Johnson, the pilot told him that a male passenger from row 12 had entered the airplane restroom for a long
period ... while the other man from row 12 stood outside and that a third passenger seated in 12A may also be involved in the
incident but is seated and compliant at this time ( 55) (emphasis added); Plaintiff asked the officers who boarded the plane what
was happening and did not receive a reply ( 71); Plaintiff was asked if she was wearing explosives ( 76); outside the plane, Plaintiff
again asked what was happening and did not receive a reply ( 77); Plaintiff was asked if she speaks English ( 82); and the stripsearch was not conducted promptly after it was decided that Plaintiff would be strip-searched ( 8588). The Complaint alleges as
to each of the Defendants that they did not request further information or evidence regarding [Plaintiff's] alleged involvement in
suspicious activities.( 56.) If that is true, as the Court must assume it is at this stage, the only reliable information the officers had
about Plaintiff was the proximity of her seat to the other suspects, her name, and how it sounded; the other information, that she may
be involved, is at worst little more than a wild guess, and at best merely a suspicion expressed in the absence of any factual support.
See supra note 2.
3

The surviving claims at that time included claims against: Michael Rolince, former Chief of the FBI's International Terrorism
Operations Section, Counterterrorism Division, and Kenneth Maxwell, former Assistant Special Agent in Charge of the FBI's New
York Field Office....; former BOP officials: Kathleen Hawk Sawyer, former BOP Director; David Rardin, former Director of the
Northeast Region of the Bureau of Prisons; and Michael Cooksey, former Assistant Director for Correctional Programs of the Bureau
of Prisons ...; Dennis Hasty, former MDC Warden; and others includ[ing] Michael Zenk, MDC Warden at the time the lawsuit
was filed, other MDC staff, and the United States.Iqbal v. Hasty, 490 F.3d 143 (2d Cir.2007).
The Federal Defendants seem to be of the opinion that the claimed equal protection violation ended as soon as Plaintiff was removed
from the aircraft, and that any alleged subsequent violations are covered solely by Plaintiff's claims in Counts V and VI, or at least
that the allegations of the latter cannot support the former. (Dkt. 81 at 3.) The Court disagrees. Plaintiff has alleged that she was
arrested, detained, and illegally searched without any proper justification and under circumstances where her ethnic name appears to
have played a role in the decision to associate her with the other suspects. These claims, taken as a whole, support her position that
she would not have been arrested and detained but for her race, ethnicity, or perceived nationality.
The Federal Defendants also argue that the Complaint does not sufficiently allege that each of them were even aware of Plaintiff's
race, ethnicity, or national origin. Setting aside that basic common sense strongly suggests that all of the defendants would have been
aware of Plaintiff's last name, which is alleged to be and seems to be of Arabic origin, all of the Federal Defendants are alleged to
have at least been present at the inspection site where Plaintiff was removed from the plane. See supra Section III.A. The allegations
are sufficient to establish that all of the Federal Defendants laid eyes on Plaintiff and were consequently aware of her appearance and
in a position to make judgments regarding her ethnicity, national origin, or race, which is alleged to be half-Arab and half-Jewish.

End of Document

2014 Thomson Reuters. No claim to original U.S. Government Works.

2014 Thomson Reuters. No claim to original U.S. Government Works.

21

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 1 of 25

Pg ID 1534

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHOSHANA HEBSHI,
v.

Plaintiff,
Case No. 13-10253

UNITED STATES OF AMERICA, et al.,

HON. TERRENCE G. BERG

HON. MONA K. MAJZOUB

Defendants.
/

ORDER DENYING WCAA DEFENDANTS MOTION

FOR PARTIAL JUDGMENT ON THE PLEADINGS AS TO COUNTS V & VI,
AND MOTIONS FOR PROTECTIVE ORDERS
This matter is before the Court on a motion for partial judgment on the
pleadings to dismiss Counts V and VI (Dkt. 89) brought by Defendants, law
enforcement officers of the Wayne County Airport Authority (the WCAA
Defendants), including Jeremy Bohn, Corporal Bradley, Lieutenant M.
Wasiukanis, Captain Patrick Driscoll, Mark DeBeau, Officer Grant, Toya Parker,
Detective Carmona, and Officer Johnson. The motion is brought under Federal Rule
of Civil Procedure 12(c), asserting that the WCAA Defendants are entitled to
qualified immunity as to Plaintiffs claim that her arrest, detention, and search
were in violation of her Fourth Amendment rights under the United States
Constitution to be free from unreasonable searches and seizures. Having reviewed
the motion and its accompanying exhibits, Plaintiffs response, and the remainder of
the record, the Court finds that the documents adequately present the issues in the
motion, and that oral argument would not aid the decision. Accordingly, the Court

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 2 of 25

Pg ID 1535

will decide the WCAA Defendants motion (Dkt. 89) without a hearing. E.D. Mich.
LR 7.1(f)(2).
The WCAA Defendants, and non-parties Thomas J. Naughton and the Wayne
County Airport Authority, have also moved for protective orders seeking to stay
discovery pending resolution of this motion. (Dkts. 94, 98.)
For the reasons set forth below, the WCAA Defendants motion for partial
judgment on the pleadings to dismiss Counts V and VI (Dkt. 89) is DENIED, and
their motion and the non-parties motion for protective orders (Dkts. 94, 98) are
DENIED as moot.
I.
A.

FACTUAL BACKGROUND

The Parties.
Plaintiff Shoshana Hebshi is a natural person, a United States citizen, a

resident of Ohio, and the daughter of a Jewish mother and a father who emigrated
from Saudi Arabia. (Dkt. 1 12.)
Defendant United States of America is a sovereign state and the employer of
Defendants Robert Ball, John Brand, Paul Brumley, Nathaniel Devins, and David
Lakatos. (Id. 13, 15, 30, 31, 33, 36.)
Defendant Frontier Airlines is an airline headquartered in Denver, Colorado,
and was the operator of flight 623 from Denver to Detroit on September 11, 2011,
upon which Plaintiff was a passenger. (Id. 14, 41.)
Defendants Robert Ball, John Brand, Paul Brumley, Nathaniel Devins, and
David Lakatos are federal law enforcement agents who allegedly participated in the

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 3 of 25

Pg ID 1536

seizure, detention, and searches of Plaintiffs person and personal effects as

described below. (Id. 15, 30, 31, 33, 36.)
Defendants Jeremy Bohn, Corporal Bradley, Lieutenant M. Wasiukanis,
Captain Patrick Driscoll, Mark DeBeau, Officer Grant, Toya Parker, Detective
Carmona, and Officer Johnson are Wayne County Airport Authority (WCAA) law
enforcement agents who allegedly participated in the seizure, detention, and
searches of Plaintiffs person and personal effects as described below. (Id. 1927.)
In addition, Plaintiff has also named six unknown federal agents as Defendants.
(Id. 16, 17, 28, 32, 34, 35.) Plaintiff had also named federal agents John Etling
and Thomas Pipis as defendants, but they were voluntarily dismissed from the case.
(Id. 18, 29; Dkts. 54, 55.)
B.

Allegations Made in the Complaint.

Plaintiffs primary allegations are summarized in the first paragraph of the

Complaint:
On September 11, 2011, Plaintiff Shoshana Hebshi flew on Frontier
Airlines flight 623 . . . . Upon landing, heavily armed agents forcibly
removed [Plaintiff] from the airplane; handcuffed, pat searched, and
strip searched her; and locked her in a cell at Detroit Metropolitan
Wayne County Airport before interrogating her. [She] was detained for
approximately four hours before being released with no charges.
(Dkt. 1 1.) The details follow.
Plaintiff Shoshana Hebshi is a United States citizen whose first name is of
Hebrew origin and surname is of Saudi Arabian origin. (Id. 12.) Traveling alone,
Plaintiff flew on Frontier Airlines flight 623 from Denver to Detroit on September

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 4 of 25

Pg ID 1537

11, 2011. (Id. 39, 4142.) She sat in seat 12A and did not leave her seat at any
time during the flight. (Id. 42.)
Seated next to Plaintiff, in seats 12B and 12C, were two men of South Asian
descent. (Id. 43.) Plaintiff did not know these men and did not speak to them at
any time. (Id. 44.)
During the flight, some flight attendants and passengers noticed that the two
men seated in [Plaintiffs] row were acting in a way that they considered to be
suspicious. (Id. 45.) Specifically, these flight attendants and passengers alleged
that the men went to the restroom around the same time and each spent ten,
fifteen[,] or twenty minutes there. Some passengers and flight attendants also
reported that the men were standing in the aisle for long periods. (Id.) None of the
passengers or crew observed or reported anything suspicious about Plaintiff. (Id.
46.)
Shortly before 3:00 p.m., flight attendants alerted the pilot . . . that two men of
possibly Arab descent had been observed repeatedly going to the bathroom and
standing in the aisle for long periods . . . . (Id. 47.) The pilot then sent a message
through the Aircraft Communications Addressing and Reporting System . . . asking
for information about the passengers seated in 12B and 12C, whom he and the
flight attendants believed were acting strangely . . . . (Id. 48.) The pilot did not in
any way mention, ask questions about, or seek information regarding Plaintiff.
The pilots message was received by Mark Fraley, a Frontier Airlines employee,
who forwarded the message by e-mail to several people, including other Frontier
staff. (Id. 49.) He provided the names of the passengers in 12B and 12C, and also
4

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 5 of 25

Pg ID 1538

included Plaintiffs name as the passenger in 12A, adding that she might also be
with them. (Id.)
Tammara Faforke, a Frontier Airlines employee, passed Fraleys e-mail to a
Transportation Security Administration air marshal and Officer Duncan, a WCAA
police officer. (Id. 51.) Officer Duncan then passed the e-mail to another WCAA
officer, Defendant Grant. (Id.) Defendant Grant relayed the information from the email, including that Plaintiff may be traveling with the two men, to Defendants
Driscoll and Carmona, also WCAA officers. (Id. 52.)
The Transportation Security Administration also contacted the Wayne County
Airport Authority and reported the suspicious passenger behavior on flight 623. (Id.
53.)
At approximately 3:00 p.m., Defendants Bohn of WCAA, Lakatos and Ball
(federal agents), and other law enforcement officers went to a designated inspection
site to wait for the airplane to arrive. (Id. 54.) At the inspection site, Defendant
WCAA Officer Johnson . . . spoke via cell phone with [the planes captain], who told
Officer Johnson that a male passenger from row 12 had entered the . . . restroom for
a long period . . . while the other man from row 12 stood outside. (Id. 55.)
According to Defendant Johnson . . . the captain stated that a third passenger
seated in 12A may also be involved in the incident but is seated and compliant at
this time. (Id.)
None of the officers requested further evidence regarding Plaintiffs involvement
in suspicious activities. (Id. 56.)

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 6 of 25

Pg ID 1539

The responding agencies, which included several federal agencies as well as the
WCAA police, collaborated and put in place a plan to divert and board the aircraft,
arrest all three passengers, and remove them to a detention facility for questioning.
(Id. 57.)
Defendant WCAA Officer Grant organized the tactical entry of the flight with
the assistance of Defendant WCAA Officer Johnson and officers from United States
Customs and Border Protection. (Id. 58.)
Defendant WCAA Captain Driscoll recommended to Defendant DeBeau, WCAA
Vice President of Public Safety, that all three passengers be removed and taken to a
detention facility for further investigation. Defendant DeBeau authorized the plan.
(Id. 5960.)
At approximately 4:25 p.m., Defendants [WCAA officers] Carmona, Bohn,
Johnson[,] [and] . . . [federal agent] Brumley, along with other officers, boarded the
plane, heavily armed, and ran down the aisle . . . . (Id. 68.) The officers stopped at
Plaintiffs row and yelled at all three passengers to get up. (Id. 70.) Defendant
WCAA Detective Carmona put Plaintiff in handcuffs, and all three passengers were
forcibly rushed down the aisle and off the plane. (Id. 7273.)
After she was removed from the plane, an unidentified officer pushed Plaintiff
roughly against a police car, made her spread her legs while he pat searched her,
and asked her if she was wearing explosives. (Id. 7576.) Plaintiff answered that
she was not wearing explosives. (Id. 76.)
By this point, Plaintiff had twice asked the officers for an explanation of what
was happening, and was not given a reply. (Id. 71, 77.)
6

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 7 of 25

Pg ID 1540

Defendant WCAA Corporal Bradley put Plaintiff in a police car with one of the
two men who had also been removed from the plane, and drove them to Building
358. (Id. 78.) After they reached the building, Plaintiff, still handcuffed, was
removed from the car and placed in a cell that was approximately six feet by ten
feet with a metal cot and a video camera hanging over the toilet. (Id. 8081.)
An unidentified male officer came to the door of the cell and asked Plaintiff if
she spoke English, to which she said yes and added that she is an American citizen.
(Id. 82.) The officer told her he would stand by the door to make sure she did not
flush anything down the toilet. (Id. 83.) Plaintiff badly needed to use the toilet,
but because she was handcuffed, a male guard was at the door, and there was a
video camera above the toilet, she did not. (Id. 84.)
At approximately 4:40 p.m., Defendants WCAA Lieutenant Wasiukanis and
federal agent Brand conferred and decided that all three passengers should be stripsearched. (Id. 85.) The standard operating procedures in effect for the Wayne
County Airport Authority provided that [a] person shall not be strip searched
unless the person is being lodged into a detention facility, by order of a court or
there is reasonable cause to believe that the person is concealing a weapon,
controlled substance, or evidence of a crime. (Id. 86.)
An hour later, Defendant WCAA Officer Parker arrived and told Plaintiff she
was going to be strip-searched. Plaintiff was afraid and began to cry. WCAA Officer
Parker performed the strip-search of Plaintiff, during which Plaintiffs handcuffs
were removed and she was made to remove all of her clothing so that she was
completely naked, told to face the wall, bend over, spread her buttocks, and cough
7

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 8 of 25

Pg ID 1541

while Defendant WCAA Officer Parker watched. (Id. 8892.) Defendant Parker
then felt through Plaintiffs hair, lifted Plaintiffs eyelids, and looked into her
mouth. (Id. 9394.) Plaintiff was then told to dress, after which Defendant
Parker put the handcuffs back on Plaintiff. (Id. 97.)
Approximately two hours later, Plaintiff was taken to an interview room where
two unidentified federal agents questioned her for approximately 30 minutes. (Id.
99102.) The agents questioned her about her family, her previous travel, and
the two men who were seated next to her. (Id. 100.)
Before she was permitted to leave, an unknown federal agent required that
[Plaintiff] show the Twitter messages she had sent out from the airplane upon
landing, as well as her Facebook profile. (Id. 105.)
At approximately 7:30 p.m., Defendant federal agent Brand authorized the
release of the three passengers. (Id. 106.)
C.

Plaintiffs Claims.
Counts I, II, and III are brought against Frontier Airlines for violation of 42

U.S.C. 1981, 42 U.S.C. 2000d, and 49 U.S.C. 40127(A), respectively. All of

these claims involve allegations of discrimination based on race, ethnicity, or
national origin. (Id. 11031.)
Count IV is brought against the individual Federal Agent Defendants and all of
the WCAA Defendants except WCAA Officer Toya Parker for violation of Equal
Protection under the Fifth and Fourteenth Amendments. (Id. 13238.)

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 9 of 25

Pg ID 1542

Count V is brought against the individual Federal Agent Defendants and all of
the WCAA Defendants except WCAA Officer Toya Parker for Unreasonable Seizure
under the Fourth and Fourteenth Amendments. (Id. 13945.)
Count VI is brought against Defendants federal agent Brand, WCAA Officer
Parker, and WCAA Lieutenant Wasiukanis for Unreasonable Search under the
Fourth and Fourteenth Amendments. (Id. 14652.)
Count VII is brought against the United States of America for False Arrest and
False Imprisonment under the Federal Tort Claims Act. (Id. 15355.)
II.

LEGAL STANDARD

A Rule 12(c) motion tests whether a legally sufficient claim has been pleaded,
and provides for dismissal when a plaintiff fails to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(c); see Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th
Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when a plaintiff
pleads factual content that permits a court to reasonably infer that the defendant is
liable for the alleged misconduct. Id. (citing Twombly, 550 U.S. at 556). When
assessing whether a plaintiff has set forth a plausible claim, the district court
must accept all of the complaints factual allegations as true. See Ziegler v. IBP Hog
Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). Mere conclusions, however, are not
entitled to the assumption of truth. While legal conclusions can provide the
complaints framework, they must be supported by factual allegations. Iqbal, 556
9

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 10 of 25

Pg ID 1543

U.S. at 664. A plaintiff must provide more than labels and conclusions, or a
formulaic recitation of the elements of a cause of action. Twombly, 550 U.S. at 556.
Therefore, [t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678.
In ruling on a motion to dismiss, the Court may consider the complaint as well
as (1) documents that are referenced in the plaintiffs complaint or that are central
to plaintiffs claims, (2) matters of which a court may take judicial notice, and (3)
documents that are a matter of public record. See Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); see also Greenberg v. Life Ins. Co. of Virginia,
177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to
dismiss that are referred to in the complaint and central to the claim are deemed
part of the pleadings).
III.

ANALYSIS

The WCAA Defendants have moved to dismiss Plaintiffs unreasonable search

and seizure claims in Counts V and VI of the Complaint, asserting that their
conduct is protected by qualified immunity, and that Plaintiffs claims therefore fail
to state a claim upon which relief can be granted. (Dkt. 89.)
The Fourth Amendment protects [t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.
An arrest, of course, qualifies as a seizure of a person under this provision, and so
must be reasonable under the circumstances. Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2080 (2011) (quoting Dunaway v. New York, 442 U.S. 200, 20708 (1979)). Fourth

10

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 11 of 25

Pg ID 1544

Amendment reasonableness is predominantly an objective inquiry. Id. (quoting

Indianapolis v. Edmond, 531 U.S. 32, 47 (2000)).
When a defendant raises a defense of qualified immunity, the plaintiff bears the
burden of pleading facts that would be sufficient to show that the defendant is not
entitled to its protection. See Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012).
Qualified immunity shields federal and state officials from money damages unless
a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of
the challenged conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
For the reasons explained below, the Court finds that Counts V and VI of the
Complaint allege facts that, when viewed in the light most favorable to Plaintiff,
would establish that the conduct of the WCAA Defendants violated a constitutional
right that was clearly established, namely Plaintiffs right to be free from
unreasonable searches and seizures. Accepted as true, Counts V and VI state
unreasonable search and seizure claims upon which relief can be granted, and
WCAA Defendants motion for partial judgment on the pleadings (Dkt. 89) as to
those Counts must be denied.
A.

Plaintiff Adequately Alleges that Defendants Violated a

Constitutional Right.
Plaintiff has alleged that each of the WCAA Defendants violated her rights to be

free from unreasonable searches and seizures with both her arrest and detention,
but only those claims supported by sufficient factual allegations can survive the
11

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 12 of 25

Pg ID 1545

Defendants motion to dismiss.1 See, e.g., Iqbal, 556 U.S. at 678. The allegations in
the Complaint adequately meet Plaintiffs burden of pleading that the individual
defendants both: (1) arrested her without probable cause, United States v. Jeter, 721
F.3d 746, 751 (6th Cir. 2013), cert. denied, 134 S. Ct. 655 (2013) (citing Dunaway v.
New York, 442 U.S. 200, 208 n.9 (1979)); and (2) conducted an unreasonable search
of her person by means of a strip-search vastly more invasive than was justified
by the existing need, Bell v. Wolfish, 441 U.S. 520, 559 (1979).
1. The WCAA Defendants Argument.
The WCAA Defendants make essentially one argument in their motion for
partial judgment on the pleadings as to Counts V and VIthat Plaintiffs
allegations fail to state a plausible claim under the Fourth Amendment against
each of them individually in light of their qualified immunity.2 (Dkt. 89 at 1730.)
2. The Specific Allegations Against the WCAA Defendants.
Plaintiffs allegations against each of the WCAA Defendants are as follows:

Jeremy Bohn, the WCAA Police Officer-in-Charge ( 20): Participated in

Plaintiffs arrest and transportation to the detention site despite a lack of
probable cause or articulable facts connecting Plaintiff to criminal activity
( 20); went to wait for the plane at the inspection site ( 54); did not
request further information or evidence regarding Plaintiffs alleged

Count V is brought against, among others, all the WCAA Defendants except for Toya Parker. Count
VI is brought against only WCAA Defendants Parker and Wasiukanis, and Federal Defendant
Brand. (Dkt. 1 at 24.) The Federal Defendants have not moved to dismiss Counts V or VI based on
qualified immunity.

Because the WCAA Defendants motion seeks dismissal of both Counts V and VI (Dkt. 89 at 3), the
Court will assume that this argument is made against both of those Counts despite the fact that the
WCAA Defendants advance very little in the way of argument addressing the lawfulness of the
search.

12

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 13 of 25

Pg ID 1546

involvement in suspicious activities, and acted based on the perceived

ethnicity, national origin, or race of Plaintiff ( 56); and boarded the
plane, heavily armed ( 72).

Corporal Bradley, WCAA Police Officer ( 27): Arrested and transported

Plaintiff to the detention facility despite a lack of probable cause or
articulable facts connecting Plaintiff to criminal activity ( 27); did not
request further information or evidence regarding Plaintiffs alleged
involvement in suspicious activities, and acted based on the perceived
ethnicity, national origin, or race of Plaintiff ( 56); and put Plaintiff in
the back of a police car with one of the men from her row, and transported
them to the detention facility ( 78).

Lieutenant Wasiukanis, WCAA Police Officer ( 22): Participated in the

arrest, detention, and decision to strip-search Plaintiff despite a lack of
probable cause or articulable facts connecting Plaintiff to criminal activity
( 22); did not request further information or evidence regarding
Plaintiffs alleged involvement in suspicious activities, and acted based on
the perceived ethnicity, national origin, or race of Plaintiff ( 56); and
conferred with Defendant Brand and decided that Plaintiff should be
strip-searched ( 85).

Captain Patrick Driscoll, WCAA Police Special Response Unit Officer (

21): Participated in the decision to arrest, handcuff, and detain Plaintiff
despite a lack of probable cause or articulable facts connecting Plaintiff to
criminal activity ( 21); received the Fraley message, including Plaintiffs
name, from Defendant Grant ( 52); did not request further information
or evidence regarding Plaintiffs alleged involvement in suspicious
activities, and acted based on the perceived ethnicity, national origin, or
race of Plaintiff ( 56); and determined that a tactical entry was needed
and recommended to Defendant DeBeau that all three passengers in row
12 be removed from the plane and taken to the detention facility for
further investigation ( 59).
13

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 14 of 25

Pg ID 1547

Mark DeBeau, WCAA Vice President of Public Safety ( 19): Participated

in the decision to arrest Plaintiff despite a lack of probable cause or
articulable facts connecting Plaintiff to criminal activity ( 19); did not
request further information or evidence regarding Plaintiffs alleged
involvement in suspicious activities, and acted based on the perceived
ethnicity, national origin, or race of Plaintiff ( 56); was present at the
inspection site ( 60); and authorized Defendant Driscolls plan to remove
all three from the plane and take them to the detention facility ( 60).

Toya Parker, WCAA Police Officer ( 23): Performed the strip-search of

Plaintiff despite a lack of probable cause or articulable facts connecting
Plaintiff to criminal activity ( 23); came into [Plaintiffs] cell and told her
she was going to be strip searched ( 89); took off [Plaintiffs] handcuffs
and told her to remove all clothing, including her underwear and bra, so
that she was completely naked, and instructed [Plaintiff] to stand facing
the wall, away from the video camera, so that at least part of her body
would be concealed ( 91); stood a couple of feet away and watched as
Plaintiff was instructed to bend over, spread her buttocks, and cough (
92); instructed [Plaintiff] to take her hair down from its ponytail so that
Defendant Parker could feel through [Plaintiffs] hair ( 93); lifted
[Plaintiffs] eyelids and looked into her mouth ( 94); told Plaintiff to get
dressed ( 95); and put the handcuffs back on [Plaintiffs] wrists ( 97).

Officer Grant, WCAA Police Special Response Unit Officer ( 24): Part of
the team that planned and executed the arrest of Plaintiff despite a lack
of probable cause or articulable facts connecting Plaintiff to criminal
activity ( 24); received the Fraley message, including Plaintiffs name,
from Officer Duncan ( 51); relayed the Fraley message, including
Plaintiffs name, to Defendants Driscoll and Carmona ( 52); did not
request further information or evidence regarding Plaintiffs alleged
involvement in suspicious activities, and acted based on the perceived

14

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 15 of 25

Pg ID 1548

ethnicity, national origin, or race of Plaintiff ( 56); and organized the

tactical entry of the plane with Defendant Johnson and others ( 58).

Detective Carmona, WCAA Police Officer ( 25): Participated in the arrest

of Plaintiff despite a lack of probable cause or articulable facts connecting
Plaintiff to criminal activity ( 25); received the Fraley message, including
Plaintiffs name, from Defendant Grant ( 52); did not request further
information or evidence regarding Plaintiffs alleged involvement in
suspicious activities, and acted based on the perceived ethnicity, national
origin, or race of Plaintiff ( 56); boarded the plane, heavily armed ( 72);
and placed Plaintiff in handcuffs and the man in 12B in flex-cuffs ( 72).

Officer Johnson, WCAA Police K9 Officer ( 26): Participated in the arrest

of Plaintiff despite a lack of probable cause or articulable facts connecting
Plaintiff to criminal activity ( 26); was at the inspection site ( 55); spoke
by phone with pilot, who told him that a male passenger from row 12 had
entered the . . . restroom for a long . . . time, while the other man from row
12 stood outside, and that a third passenger seated in 12A may also be
involved in the incident but is seated and compliant at this time ( 55);
did not request further information or evidence regarding Plaintiffs
alleged involvement in suspicious activities, and acted based on the
perceived ethnicity, national origin, or race of Plaintiff ( 56); assisted
Defendant Grant with organizing tactical entry of the plane ( 58); and
boarded the plane, heavily armed ( 72).

When considered with all of the other allegations in the complaint, these allegations
are sufficient to support both Counts V and VI against the identified WCAA
Defendants.3

Some of the other specific allegations that provide support for Counts V and VI include: Plaintiffs
name, including that her last name is of Saudi Arabian origin and her first name is of Hebrew
origin ( 2, 12); her mother is Jewish and her father immigrated to the United States from Saudi
Arabia ( 12); she never left her seat during the flight ( 3, 42); she was traveling alone ( 39); she
did not know the men seated in 12B and 12C and did not speak with them during the flight ( 44);

15

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 16 of 25

Pg ID 1549

3. The Complaint Pleads Plausible Claims of Both Unreasonable Seizure

and Unreasonable Search.
The WCAA Defendants argue that Plaintiff has failed to allege sufficient facts
as to each individual defendant. (Dkt. 89 at 1730.) This argument failed when the
WCAA Defendants made their earlier motion for partial judgment on the pleadings
as to Count IV (Dkt. 69), and it fails now as to Counts V and VI for similar reasons.
(See Dkt. 111 at 1825.)4
The allegations against each of the WCAA Defendants are plainly sufficient at
this early stage of the litigation. (Cf. id. at 1822.) As to Count V, each of the WCAA

some flight attendants and passengers noticed that the two men in 12B and 12C were acting in a
way that they considered to be suspicious by taking long trips to the toilets and standing in the
aisles ( 45); no one on the flight observed or reported anything suspicious about Plaintiff or her
conduct ( 46); the pilot sent a message to Frontier Airlines dispatch asking for information about
the passengers seated in 12B and 12C, whom he and the flight attendants believed were acting
strangely, this message did not seek information regarding Plaintiff, who was seated in 12A, or
otherwise suggest Plaintiff was acting suspiciously ( 48); Frontier Airlines ground employee Mark
Fraley forwarded the pilots message and included his own message indicating that Plaintiff might
also be with the two men ( 49) (emphasis added); the only information available to Fraley about
Plaintiff was her name and seat assignment ( 50); WCAA Defendants Grant, Driscoll, and Carmona
all received Fraleys message, which included Plaintiffs name and the pilots initial message that
only sought information about the two men in 12B and 12C and in no way identified Plaintiff as a
person of concern to the flight crew ( 49, 51, 52); WCAA Defendant Johnson spoke with the pilot
via telephone and, according to the statement of Johnson, the pilot told him that a male passenger
from row 12 had entered the airplane restroom for a long period . . . while the other man from row 12
stood outside and that a third passenger seated in 12A may also be involved in the incident but is
seated and compliant at this time ( 55) (emphasis added); Plaintiff asked the officers who boarded
the plane what was happening and did not receive a reply ( 71); Plaintiff was asked if she was
wearing explosives ( 76); outside the plane, Plaintiff again asked what was happening and did not
receive a reply ( 77); Plaintiff was asked if she speaks English ( 82); and the strip-search was not
conducted promptly after it was decided that Plaintiff would be strip-searched ( 8588). The
Complaint alleges as to each of the Defendants that they did not request further information or
evidence regarding [Plaintiffs] alleged involvement in suspicious activities. ( 56.) If that is true, as
the Court must assume it is at this stage, the only reliable information the officers had about
Plaintiff was the proximity of her seat to the other suspects, her name, and how it sounded; the other
information, that she may be involved, is at worst little more than a wild guess, and at best merely
a suspicion expressed in the absence of any factual support. It merits further investigation (why do
you say that?), but does not approach the threshold of probable cause of criminal activity supporting
an arrest or a search.
While the WCAA Defendants claim that the allegations made against them are insufficient, they
also fail to credit Plaintiff for all of her allegations. (Compare Dkt. 89 at 2230 with supra III.A.2.)

16

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 17 of 25

Pg ID 1550

Defendants, except for Toya Parker, are alleged to have directly participated in the
execution of the unreasonable arrest of Plaintiff, the planning and authorization of
the unreasonable arrest of Plaintiff, or both. See supra III.A.2. As to Count VI,
Defendants Parker and Wasiukanis are alleged to have directly participated in the
execution of the unreasonable search of Plaintiff, the planning and authorization of
the unreasonable search of Plaintiff, or both. See id. Each Count of the Complaint is
clearly limited to only those Defendants against whom that particular claim can be
plausibly made. WCAA Defendants contention that this is insufficient is wholly
without merit.
Plaintiff sufficiently alleges facts that support and make plausible the
unreasonableness of both her seizure and her search. There can be no dispute that
she has adequately alleged that she was seized, detained, and strip-searched, and
that the named WCAA Defendants participated in these actions.
a) The Complaint pleads a de facto arrest made without probable
cause.
The facts as alleged establish that the seizure of Plaintiff was a de facto arrest
made without probable cause. See supra III.A.2; see also Michigan v. Summers, 452
U.S. 692, 699700 (1981); United States v. Jeter,721 F.3d 746, 751 (6th Cir. 2013);
Hoover v. Walsh, 682 F.3d 481, 499 (6th Cir. 2012) (noting that, with rare
exceptions, . . . the involuntary transportation of a detained suspect to a police
station amounts to an arrest.); Dkt. 111 at 2022.
The WCAA Defendants do not argue that the seizure was made upon probable
cause, likely because doing so would be impossible under the facts alleged in the
17

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 18 of 25

Pg ID 1551

complaint. Instead they argue that the seizure was not an arrest, but rather an
investigatory stop made with reasonable suspicion. (Dkt. 89 at 1819.) They note,
citing cases, that the standard requires a balancing of the intrusion against the
governmental interest, that officers are often forced to make split-second decisions
in tense, uncertain, and rapidly evolving circumstances, that investigatory stops
are permissible when the officer suspects wrongdoing, that use of handcuffs and
weapons does not make a stop necessarily unreasonable, and that handcuffing a
suspect and transporting him across an airport tarmac building is not an arrest.
(Id.)
Defendants argument that the conduct alleged in the complaint was an
investigative stop is also without merit. Plaintiff was forced off an airplane by
armed officers, handcuffed, briefly questioned and pat searched on the tarmac,
transported to the jail, locked in a guarded cell under video surveillance, detained
for approximately four hours, and then strip-searched, all before she was questioned
extensively about whether she was involved in whatever it was that the passengers
in 12B and 12C were suspected of doing. See supra III.A.2. This was clearly much
more intrusive than a brief investigatory stop which may be justified by reasonable
suspicion.5 Such a full-custody detention clearly amounted to a de facto arrest. See
Hayes v. Florida, 470 U.S. 811, 81516 (1985); United States v. Place, 462 U.S. 696,
70910 (1983); United States v. Cochrane, 702 F.3d 334, 340 (6th Cir. 2012) (A
valid Terry stop must be limited in scope and duration. To be limited in scope, the

The Court does not conclude whether the facts as alleged were sufficient to meet the lower
standard of reasonable suspicion because it has concluded that the circumstances amounted to a fullcustodial arrest requiring probable cause.

18

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 19 of 25

Pg ID 1552

investigative methods employed should be the least intrusive means reasonably

available to verify or dispel the officers suspicion in a short period of time. To be
limited in duration, an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.); Hoover, 682 F.3d at
49899. Plaintiffs Response as to this argument is well stated and well taken. (Dkt.
100 at 1922.)
b) The Complaint pleads a strip-search performed without
justification.
The facts also clearly allege the lack of a sufficient basis for the strip-search of
Plaintiff. See Bell, 441 U.S. at 559. The sole argument the WCAA Defendants make
in support of the strip-search is that the Supreme Court has clearly ruled that a
person being held in a detention center is subject to a strip-search. (Dkt. 89 at 28)
(citing Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 132 S. Ct.
1510 (2012) (Correctional officials have a legitimate interest, indeed a
responsibility, to ensure that jails are not made less secure by reason of what new
detainees may carry in on their bodies.)).
The WCAA Defendants reliance on Florence is misplaced. Contrary to their
argument, Florence does not give jailors carte blanche to strip-search anyone in
their custody regardless of the circumstances. See Florence, 132 S. Ct. at 152224.
In Florence, the controversy concern[ed] whether every detainee who will be
admitted to the general population may be required to undergo a close visual
inspection while undressed. Id. at 1513; see also id. at 1515 (The case proceeds on
the understanding that the officers searched detainees prior to their admission to
19

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 20 of 25

Pg ID 1553

the general population . . . .). The Court directly noted that the case does not
require the Court to rule on the types of searches that would be reasonable in
instances where, for example, a detainee will be held without assignment to the
general jail population and without substantial contact with other detainees. Id. at
152223. Justice Alito wrote separately to emphasize the limits of [the] holding,
that it applies only to arrestees who are committed to the general population of a
jail . . . and that the Court did not hold that it was necessarily reasonable to
conduct a full strip search of an arrestee whose detention has not been reviewed by
a judicial officer and who could be held in available facilities apart from the general
population. Id. at 1524 (Alito, J., concurring).6
The Court, therefore, considers the constitutionality of the search under the
standard articulated in Bell v. Wolfish: a balancing of the need for the particular
search against the invasion of personal rights that the search entails. . . .
consider[ing] the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted.
441 U.S. at 559.

The result in Florence is functionally the same as that previously reached by the Sixth Circuit in
Dobrowolskyj v. Jefferson County, Kentucky, 823 F.2d 955, 959 (6th Cir. 1987) (Jefferson Countys
policy was not a blanket search of all detainees as in the policies held unconstitutional in the above
cases, but a more narrowly drawn policy of searching only those detainees who were required, by
force of circumstance, to be moved into the general jail population. Dobrowolskyj was not moved
until he had been at the jail for several hours. The move was necessitated by the overcrowding in the
front holding cell, which had been limited to a capacity of twenty prisoners by the class action
consent decree in Tate v. Frey.), and Dufrin v. Spreen, 712 F.2d 1084, 1089 (6th Cir. 1983) (It is
enough here that (a) the arrestee was formally charged with a felony involving violence, (b) that her
detention was under circumstances which would subject her potentially to mingle with the jail
population as a whole, and (c) that the search actually conducted was visual only, and was carried
out discreetly and in privacy.).
6

20

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 21 of 25

Pg ID 1554

Based on the facts alleged in the complaint, the strip-search constituted an

invasion of Plaintiffs personal rights that was vastly greater than the need for the
particular search. See Bell v. Wolfish, 441 U.S. 520, 559 (1979). Plaintiff claims that
the law enforcement officers arrested her, detained her for approximately four
hours, and strip-searched her absent probable cause and without justification. The
allegations are sufficient to make Plaintiffs claim plausible. (Dkt. 1 2, 3, 12, 39,
42, 4446, 4852, 55, 71, 76, 77, 82, 8588.) For example, it is alleged that: she was
traveling alone ( 39); she did not know and did not speak with the two men seated
in 12B and 12C ( 44); there were many other passengers on the plane ( 45) who
were not forcibly removed, arrested, detained, and strip-searched ( 73, 85); the
reports of suspicious behavior did not involve any conduct by Plaintiff ( 46); it
was Frontier ground personnel who provided Plaintiffs name when it indicated that
Plaintiff might be with the two men, and it was plain from the message given to
WCAA officers that those aboard the aircraft did not identify Plaintiff as a person
acting suspiciously ( 4852); Defendant WCAA officer Johnson stated that the
pilot told him that while Plaintiff may be involved in the incident with the two
men, she was seated and compliant at [that] time ( 55); no agent or officer made
any effort to verify Plaintiffs identity or corroborate any connection between her
and the two men ( 56); Plaintiff was handcuffed and pat searched before she was
transported to the detention center ( 72, 75); she was placed in a small cell by
herself, the cell was guarded by an officer, and under video surveillance ( 8084);
the strip-search was not conducted promptly after she was placed in a cell nor after
it was decided that Plaintiff would be strip-searched ( 8588); and [t]here were
21

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 22 of 25

Pg ID 1555

no facts suggesting that [Plaintiff] was concealing a weapon, a controlled substance,

or any other evidence of a crime that might justify a strip search ( 87).7
These allegations, along with the rest of the Complaint, which must be taken as
true, are a sufficient basis on which to conclude, at this pleading stage, that
Plaintiffs claim of an unreasonable search is plausible. Even if the initial action of
forcibly removing Plaintiff from the plane could be seen as reasonable in response to
a possible emergency, which the Court cannot conclude at this time without further
factual development, the prolonged detention and post-detention searches of
Plaintiff as alleged took place after it was clear that no emergency, and no probable
cause relating to Plaintiff, existed. The WCAA Defendants arrested, detained for
approximately four hours, and strip-searched a woman who, under the allegations
in the complaint: never did anything wrong; was never accused of doing anything
wrong; was compliant and confused when initially seized; was pat searched and
handcuffed before taken to the detention facility; was placed in a cell alone, guarded
by an officer immediately outside her cell, and under video surveillance; and was
compliant and communicative while handcuffed, locked in her cell, guarded, and
under video surveillance for more than an hour before she was strip-searched.8

The WCAA Defendants would likely argue that paragraph 87 of the Complaint is conclusory and
thus not entitled to the presumption of truth. They would be correct, if that were the only allegation,
or only one of a few allegations, in the complaint related to the events of that afternoon. But it is not.
Paragraph 87 is not an unsupported or isolated conclusory statement, but is rather the logical
summation of a conclusion that follows from all of the alleged facts taken together.

No facts are offered by the Defendants that in any way support the need for a strip-search. The
defendant had been frisked, presumably quite thoroughly, so there was no reason to suspect that she
was carrying a weapon or a bomb. This was not a drug arrest in which there was reason to believe
that she was hiding contraband somewhere on her person. What, exactly, the WCAA Defendants
thought they might discover by conducting the strip-searchone where Plaintiff was forced to bend
and spread, and where the officer examined the inside of her mouth, under her eyelids, and within
her hairis a question that may be answered only after discovery.

22

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 23 of 25

Pg ID 1556

Counts V and VI are brought against only those WCAA officers and agents who
are alleged to have been present at the scene of Plaintiffs arrest and detention, and
who were directly involved in either the decision to arrest and detain Plaintiff, or
the actual arrest and detention of Plaintiff, or both. (Dkt. 1 1927, 51, 52, 5456,
5861, 6872, 78, 85, 8997.) Plaintiffs allegations are sufficient to state a claim
against each of the WCAA Defendants against whom those claims are made in
Counts V and VI.
B.

Plaintiff Has Alleged the Violation of a Clearly Established

Constitutional Right.
Plaintiffs rights under the Fourth Amendment were clearly established under

the cases cited above, in particular: Summers, Jeter, Hoover, Hayes, and Cochrane
as to Count V; and Bell, Florence, Dobrowolskyj, and Dufrin as to Count VI. See
supra III.A.3.
The WCAA Defendants do not directly articulate a separate argument regarding
whether the alleged violated rights are clearly established, but one pair of facts that
they appear to find important to the review of the alleged violations is that the
circumstances involved suspicious activity aboard an aircraft on the tenth
anniversary of the September 11, 2001 terrorist attacks . . . on a flight bound for the
Detroit Metro airport, which had been the intended target of a bombing less than
two years earlier.9
It is not necessary to have a case directly on point for a right to be clearly
established. It is sufficient that existing precedent place the question beyond

A December 2009 flight bound for Detroit had been the target of an unsuccessful bombing attempt.
See United States v. Abdulmutallab, No. 10-CR-20005, Dkt. 7 (E.D. Mich. Jan. 6, 2010).

23

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 24 of 25

Pg ID 1557

debate. Nelms v. Wellington Way Apartments, LLC, 513 F. Appx 541, 547 (6th Cir.
2013) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011); citing Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (officials can still be on notice that their conduct
violates established law even in novel factual circumstances)).
Under the applicable standard, conduct violates clearly established law when,
at the time of the challenged conduct, [t]he contours of [a] right [are] sufficiently
clear that every reasonable official would have understood that what he is doing
violates that right. al-Kidd, 131 S. Ct. at 2083 (citing Anderson v. Creighton, 483
U.S. 635, 640 (1987)). Plaintiffs complaint meets this standard.
The fact that the events occurred on the tenth anniversary of September 11th,
on a flight bound for a city previously targeted for a terrorist attack, does not
absolve the WCAA Defendants, or any law enforcement officers, of their
responsibility to conduct their police work in compliance with the United States
Constitution. Under the Fourth Amendment to the Constitution, a full-custodial
arrest, and a warrantless strip-search of a person in temporary detention, are
unreasonable in the absence of probable cause. As of yet, there is no suspected
terrorist activity exception to the probable cause requirement of the Fourth
Amendment. The Court declines to sacrifice these principles of liberty to the cause
of hyper-vigilance.
Based on the Plaintiffs allegations, which are assumed to be true for the
purpose of deciding this motion, the unlawfulness of the WCAA Defendants actions
was apparent in the light of pre-existing law. Risbridger v. Connelly, 275 F.3d 565,
569 (6th Cir. 2002) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).
24

4:13-cv-10253-TGB-MKM Doc # 124 Filed 07/18/14 Pg 25 of 25

IV.

Pg ID 1558

CONCLUSION

For the reasons set forth above, it is hereby ORDERED that the WCAA
Defendants motion for partial judgment on the pleadings to dismiss Counts V and
VI (Dkt. 89) is DENIED. It is FURTHER ORDERED that the WCAA Defendants
and non-parties motion for protective orders (Dkts. 94, 98) are DENIED as moot.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: July 18, 2014

Certificate of Service
I hereby certify that this Order was electronically submitted on July 18, 2014, using the
CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

25

FOIA How to Successfully Bring Sunshine to

Records the Government Doesnt Want You to See
Police disciplinary records are hard to get. Obtained during litigation they are regularly kept
secret from the public at large by protective orders. Speakers Jamie Kalven, writer, human rights
activist and plaintiff in Kalven v. City of Chicago, and Craig Futterman, Clinical Professor and head
of the Civil Rights and Police Accountability Project at the University of Chicago Law School, will
share their legal odyssey and eventual victory in Kalven v. City of Chicago, a case in which the
First Division of the Illinois Appeals Court ruled that two types of records should be open to the
public: complaints made against five specific officers with reputations for abusive behavior and socalled repeater lists, which are lists of the officers who receive the most misconduct complaints.
In this practical workshop the presenters will share their expertise in getting at documents when
the government is fighting tooth and nail to withhold them. They will speak about FOIA and other
public request laws, and outline the best tactics and strategies to obtain information the public
needs to hold law enforcement accountable. The speakers will then engage participants in a
conversation around practical uses of police misconduct records to improve police accountability
and service.
Presenters:
Craig B. Futterman is a Clinical Professor of Law at the University of Chicago Law School. He
founded and has served as the Director of the Civil Rights and Police Accountability Project of the
Mandel Legal Aid Clinic since 2000. Before his appointment to the Law Faculty, Professor
Futterman was a Lecturer in Law and Director of Public Interest Programs at Stanford Law School.
He previously joined Futterman & Howard, Chtd., a boutique law firm concentrating in complex
federal litigation. There, Prof. Futterman specialized in civil rights and constitutional matters, with
a special focus on racial discrimination, education, and police brutality. Before that, he served as
a trial attorney in the Juvenile Division of the Cook County Public Defenders Office.
Mr. Futterman received his J.D. from Stanford Law School and graduated with the highest
distinction from Northwestern University with a Bachelor of Arts in Sociology and Economics.
Jamie Kalven is a writer and human rights activist. He is the author of Working With Available
Light: A Familys World After Violence and the editor of A Worthy Tradition: Free Speech in
America by his father Harry Kalven, Jr.
Since the early 1990s, he has had a parallel career working in inner city Chicago neighborhoods.
He long served as advisor to the resident council of the Stateway Gardens public housing
development; and he currently serves, under a federal consent decree, as consultant to the Horner
Residents Committee. At Stateway Gardens, he created a program of grassroots public works
aimed at creating alternatives for ex-offenders and members of the street gangs. And he worked to
develop human rights monitoring strategies; among them, The View From the Ground, an online
publication.
Kalvens reporting on patterns of police abuse has figured centrally in the public debate over
police reform in Chicago. In collaboration with Prof. Craig Futterman, he has long challenged
official secrecy with respect to documents bearing on allegations of police misconduct. In March

2014, the Illinois appellate court ruled in Kalven v. Chicago that such documents are public
information.
Mariame Kaba is an organizer and educator who lives in Chicago. Her work focuses on ending
violence, dismantling the prison industrial complex, and supporting youth leadership
development. Mariame is a published author, a teacher, and has served on numerous nonprofit
boards. She runs the blog: Prison Culture where she writes about issues of juvenile justice,
prisons, and transformative justice.
Mariame is currently the founding director of Project NIA (www.project-nia.org), a grassroots
organization with the long-term goal of ending youth incarceration in Illinois. Prior to launching
Project NIA, she spent five years as a Program Officer for education and youth development at the
Steans Family Foundation and also as the coordinator of evaluation for the foundation.
Mariame has a long history of anti-violence organizing and education. She has co-founded several
organizations including the Chicago Taskforce on Violence against Girls and Young Women
(www.chitaskforce.org), the Rogers Park Young Womens Action Team (www.rogersparkywat.org)
and the Chicago Freedom School (www.chicagofreedomschool.org).

National Police Accountability Project, Inc.

499 7th Ave 12N
New York, NY 10018
212 630 9939
director.npap@nlg.org

FOIA How to Successfully Bring Sunshine to Records the Government

Doesnt Want You to See
Police disciplinary records are hard to get. Obtained during litigation they are regularly kept
secret from the public at large by protective orders. In this panel, speakers Jamie Kalven, writer,
human rights activist and plaintiff in Kalven v. City of Chicago, and Craig Futterman, Clinical
Professor and head of the Civil Rights and Police Accountability Project at the University of
Chicago Law School, will share their legal odyssey and eventual victory in Kalven v. City of
Chicago, a case in which the First Division of the Illinois Appeals Court ruled that two types of
records should be open to the public: complaints made against five specific officers with
reputations for abusive behavior and so-called repeater lists, which are lists of the officers who
receive the most misconduct complaints. Additionally, Mariame Kaba, organizer and educator,
and the current director of Project NIA - a grassroots organization with the long-term goal of
ending youth incarceration in Illinois - will discuss the difficulties locating relevant information,
and the importance of data gathering and sharing to empower communities to effectively
advocate for systemic change.
Presenters:
Craig B. Futterman is a Clinical Professor of Law at the University of Chicago Law School.
He founded and has served as the Director of the Civil Rights and Police Accountability Project
of the Mandel Legal Aid Clinic since 2000. Before his appointment to the Law Faculty,
Professor Futterman was a Lecturer in Law and Director of Public Interest Programs at Stanford
Law School. He previously joined Futterman & Howard, Chtd., a boutique law firm
concentrating in complex federal litigation. There, Prof. Futterman specialized in civil rights and
constitutional matters, with a special focus on racial discrimination, education, and police
brutality. Before that, he served as a trial attorney in the Juvenile Division of the Cook County
Public Defenders Office.
Mr. Futterman received his J.D. from Stanford Law School and graduated with the highest
distinction from Northwestern University with a Bachelor of Arts in Sociology and Economics.
Jamie Kalven is a writer and human rights activist. He is the author of Working With Available
Light: A Familys World After Violence and the editor of A Worthy Tradition: Free Speech in
America by his father Harry Kalven, Jr.
Since the early 1990s, he has had a parallel career working in inner city Chicago neighborhoods.
He long served as advisor to the resident council of the Stateway Gardens public housing
development; and he currently serves, under a federal consent decree, as consultant to the Horner
Residents Committee. At Stateway Gardens, he created a program of grassroots public works

aimed at creating alternatives for ex-offenders and members of the street gangs. And he worked
to develop human rights monitoring strategies; among them, The View From the Ground, an
online publication.
Kalvens reporting on patterns of police abuse has figured centrally in the public debate over
police reform in Chicago. In collaboration with Prof. Craig Futterman, he has long challenged
official secrecy with respect to documents bearing on allegations of police misconduct. In
March 2014, the Illinois appellate court ruled in Kalven v. Chicago that such documents are
public information.
Mariame Kaba is an organizer and educator who lives in Chicago. Her work focuses on ending
violence, dismantling the prison industrial complex, and supporting youth leadership
development. Mariame is a published author, a teacher, and has served on numerous nonprofit
boards. She runs the blog: Prison Culture where she writes about issues of juvenile justice,
prisons, and transformative justice.
Mariame is currently the founding director of Project NIA (www.project-nia.org), a grassroots
organization with the long-term goal of ending youth incarceration in Illinois. Prior to launching
Project NIA, she spent five years as a Program Officer for education and youth development at
the Steans Family Foundation and also as the coordinator of evaluation for the foundation.
Mariame has a long history of anti-violence organizing and education. She has co-founded
several organizations including the Chicago Taskforce on Violence against Girls and Young
Women (www.chitaskforce.org), the Rogers Park Young Womens Action Team
(www.rogersparkywat.org) and the Chicago Freedom School (www.chicagofreedomschool.org).

12-1846 & 12-1917

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JAMIE KALVEN,
Plaintiff-Appellant, CrossAppellee
v.
THE CITY OF CHICAGO and
THE CHICAGO POLICE
DEPARTMENT,
Defendants-Appellees, CrossAppellants.

)
)
)
)
)
)
)
)
)
)
)
)
)

On appeal from the Circuit Court of

Cook County, Chancery Division.
Appeal Nos. 12-1846 & 12-1917.
Circuit Court No. 09 CH 51396.
Honorable Neil H. Cohen, Judge
Presiding.

BRIEF AND ARGUMENT FOR PLAINTIFF-APPELLANT, CROSS-APPELLEE

Craig B. Futterman
Saul Cohen, Law Student
Italia Patti, Law Student
EDWARD F. MANDEL LEGAL AID
CLINIC
University of Chicago Law School
6020 S. University Ave.
Chicago, IL 60637
(773) 702-9611
Attorney # 91074

Jon Loevy
Samantha Liskow
Pier Petersen
LOEVY AND LOEVY
312 N. May St.
Chicago, IL 60607
(312) 243-5900
Attorney # 41295
G. Flint Taylor
Ben H. Elson
PEOPLES LAW OFFICE
1180 N. Milwaukee Ave.
Chicago, IL 60642
(773) 235-0070
Attorney # 91330

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS
POINTS AND AUTHORITIES ........................................................................................ iii
NATURE OF THE CASE ...................................................................................................1
ISSUES PRESENTED FOR REVIEW ...............................................................................1
JURISDICTION ..................................................................................................................2
STATUTES INVOLVED ....................................................................................................3
STATEMENT OF FACTS ..................................................................................................4
I.

Documents Sought by Mr. Kalven...........................................................................4

A.

The Bond and Moore Repeater Lists ...........................................................4

B.

The Bond Complaint Register Files .............................................................5

II.

Mr. Kalvens Efforts to Obtain the Police Misconduct Records .............................6

III.

Mr. Kalvens Freedom of Information Act Requests ..............................................7

IV.

Mr. Kalvens Freedom of Information Act Lawsuit ................................................8

V.

A.

Summary Judgment Arguments Related to the Repeater Lists ...................9

B.

Summary Judgment Arguments Related to the CRs..................................10

C.

The Summary Judgment Ruling ................................................................11

D.

Motions to Reconsider ...............................................................................12

E.

Denial of Motions to Reconsider ...............................................................13

Appeal ....................................................................................................................14

ARGUMENT .....................................................................................................................15
I.

Standard of Review ................................................................................................17

II.

The Public Interest in the Requested Police Misconduct Records is Paramount ..18

III.

The Circuit Court Erred in Retroactively Applying Substantive 2010 FOIA

Amendments to Mr. Kalvens 2009 Cause of Action ............................................22

A.

The Legislature Clearly Intended that the 2010 FOIA Amendments be

Applied Prospectively ................................................................................24

B.

The Statute on Statutes Prohibits Retroactive Application of the

Substantive 2010 FOIA Amendments .......................................................25

IV.

CRs Are Not Exempt under Section 7(1)(b) of the 2009 Version of FOIA ..........28

V.

2010 FOIA Amendments Do Not Exempt CRs from Public Disclosure...............32

VI.

VII.

A.

The Illinois Legislature Did Not Intend to Overrule Gekas by the 2010
Amendments ..............................................................................................33

B.

2010 FOIA Exempts Adjudications of Employee Grievances and

Disciplinary Proceedings, Not Police Misconduct Investigations .............35

Section 7(1)(a) and Section 7(1)(f) of FOIA Do Not Apply to CRs .....................38
A.

The Illinois Personnel Record Review Act Does Not Shield CRs from
Disclosure ..................................................................................................38

B.

The Preliminary Draft Exemption Does Not Apply to CRs ...................40

C.

Even if the Preliminary Draft Exemption Applies to Portions of CRs, it

Only Applies to Preliminary Recommended Findings ..............................42

The Circuit Court Erred in Denying Mr. Kalven Attorneys Fees for Time
Reasonably Expended in his Successful Pursuit of the Repeater Lists .................43
A.

Mr. Kalven Substantially Prevailed in his FOIA Claims for the Repeater
Lists ............................................................................................................44

B.

The Circuit Courts Denial of CRs Does Not Justify its Refusal to Award
Fees for Mr. Kalvens Successful Work Winning the Repeater Lists .......46

CONCLUSION ..................................................................................................................50

ii

POINTS AND AUTHORITIES

ARGUMENT ....................................................................................................................15
5 ILCS 140/1 ..........................................................................................................15
Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009) ....................................16
Watkins v. McCarthy, 2012 IL App (1st) 100632 ..................................................16
Bond v. Utreras, No. 04 C 2617, 2007 WL 2003085 (N.D. Ill. July 2, 2007) ......16
I.

Standard Of Review .............................................................................................17

Board of Educ. of Auburn Community School Dist. No. 10 v. Dept. of
Revenue, 242 Ill.2d 272 (2011) ..............................................................................17
Natl Assn of Crim. Def. Lawyers v. Chi. Police Dept, 399 Ill.App.3d 11
(1st Dist. 2010).......................................................................................................17
Stern v. Wheaton-Warrenville Cmty. Unit. School Dist., 233 Ill.2d 396 (2009) ...17
Ill. Educ. Assn v. Ill. State Bd. of Educ., 204 Ill.2d 456 (2003)............................17
Mendez v. Atl. Painting Co., Inc., 404 Ill.App.3d 648 (1st Dist. 2010).................17
Clark Investments, Inc. v. Airstream, Inc., 399 Ill.App.3d 2009
(3rd Dist. 2010) ......................................................................................................18
Bluestar Energy Servs. v. Ill. Commerce Commn, 374 Ill.App.3d 990
(1st Dist. 2007).......................................................................................................17

II.

The Public Interest in the Requested Police Misconduct Records is

Paramount ............................................................................................................18
Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990) .................................................18
Wiggins v. Burge, 173 F.R.D. 226 (N.D.Ill. 1997) ................................................18
Cassidy v. Am. Broadcasting Companies, 60 Ill.App.3d 831 (1st Dist. 1978) ......19
Coursey v. Greater Niles Twp. Pub. Corp., 40 Ill.2d 257 (1968) ..........................19
Hutchins v. Clarke, 661 F.3d 947 (7th Cir. 2011) .................................................19
Obrycka v. City of Chicago, No. 07 C 2372, 2012 WL 6642354
(N.D. Ill. Dec. 20, 2012) ........................................................................................20
United States ex. rel. Maxwell v. Gilmore, 37 F.Supp.2d 1078 (N.D. Ill. 1999) ...20
iii

Craig Futterman, Melissa Mather, & Melanie Miles, The Use of Statistical
Evidence to Address Police Supervisory and Disciplinary Practices: The
Chicago Police Departments Broken System, 1 DePaul J. for Soc. Just. 251
(2008) .....................................................................................................................20
John Hagedorn et al., Crime, Corruption, and Cover-ups in the Chicago Police
Department, University of Illinois at Chicago, Department of Political Science
(Jan. 17, 2013)........................................................................................................20
John Conroy & Rob Warden, The High Costs of Wrongful Convictions, Better
Govt Assn (June 18, 2011) ..................................................................................20
Tom R. Tyler, Enhancing Police Legitimacy, 593 Annals of the Am. Soc. of
Polit. & Soc. Sci. 84 (2004) ...................................................................................21
Joanna C. Schwartz, Myths of Mechanics and Deterrence: the Role of
Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1067
(2010) .....................................................................................................................21
Robert J. Kane, Collect and Release Data on Coercive Police Actions,
6 Criminology & Pub. Poly 773 (2007) ...............................................................21
Doe v. Marsalis, 202 F.R.D. 233 (N.D. Ill. 2001) .................................................21
III.

The Circuit Court Erred in Retroactively Applying Substantive

2010 FOIA Amendments to Mr. Kalvens 2009 Cause of Action ....................22
Caveney v. Bower, 207 Ill.2d 82 (2003) ................................................................23
Commonwealth Edison v. Will County Collector, 196 Ill.2d 27 (2001) ..........22, 23
Landgraf v. USI Film Products, 511 U.S. 244 (1994) ...........................................23
Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill.2d 303 (1988) ........22
Connell v. Crosby, 210 Ill. 380 (1904) ..................................................................23
Deicke Center v. Illinois Health Facilities Planning Bd., 389 Ill.App.3d 3002
(1st Dist. 2009).......................................................................................................21
Doe v. University of Chicago, 404 Ill.App.3d 1006 (1st Dist. 2010) ....................23
A.

The Legislature Clearly Intended that the 2010 FOIA

Amendments be Applied Prospectively .................................................24
General Motors Corp. v. Pappas, 242 Ill.2d 16 (2011) .............................24
Pub. Act 96-0542, 99 (2009)....................................................................24
iv

People v. Brown, 225 Ill.2d 188 (Ill. 2007) ...............................................24

People v. Martinez, 386 Ill.App.3d 153 (1st Dist. 2008) ...........................25
People v. Blanks, 361 Ill.App.3d 400 (1st Dist. 2005) ..............................25
B.

The Statute on Statutes Prohibits Retroactive Application

of the Substantive 2010 FOIA Amendments .........................................25
Caveney v. Bower, 207 Ill.2d 82 (2003) ....................................................27
Caveney v. Bower, 326 Ill.App.3d 1 (2d Dist. 2001) .................................25
5 ILCS 70/4 ................................................................................................24
People v. Mertz, 218 Ill.2d 1 (2005) ..........................................................25
Doe v. University of Chicago, 404 Ill.App.3d 1006 (1st Dist. 2010) ........25
People v. Glisson, 202 Ill.2d 499 (2002) ...................................................26
Callinan v. Prisoner Review Bd., 371 Ill.App.3d 272 (3rd Dist. 2007) .....26
Shoreline Towers v. Condominium Assn v. Gassman, 404 Ill.App.3d
1013 (1st Dist. 2010)..................................................................................26
City of Chicago v. U.S. Dept. of Treasury, Bureau of Alcohol, Tobacco,
and Firearms, 423 F.3d 777 (7th Cir. 2005).............................................27
5 ILCS 40/7(1)(n) ..........................................................................25, 26, 27

IV.

CRs Are Not Exempt under Section 7(1)(b) of the 2009 Version of
FOIA ....................................................................................................................28
5 ILCS 140/7(1)(b) ................................................................................................28
5 ILCS 140/7(1)(b)(ii)............................................................................................28
5 ILCS 140/7(1)(b)(v) ............................................................................................31
Watkins v. McCarthy, 2012 IL App (1st) 100632 ......................................28, 29, 30
Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009)..................28, 29, 30, 32
Stern v. Wheaton-Warrenville Cmty. Unit. School Dist., 233 Ill.2d 396
(2009) ...............................................................................................................29, 31
Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401
(1997) .....................................................................................................................30
v

Copley Press v. Board of Education, 359 Ill.App.3d 321 (3d Dist. 2005) ......30, 31
Padilla v. City of Chicago, No. 06 C 5462, 2009 WL 2501393
(N.D. Ill. Aug. 14, 2009) ........................................................................................31
V.

2010 FOIA Amendments Do Not Exempt CRs from Public

Disclosure ..............................................................................................................32
5 ILCS 140/7(1)(u) ................................................................................................32
5 ILCS 140/7(1)(n) ................................................................................................32
Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009) ..............................32, 33
A.

The Illinois Legislature Did Not Intend to Overrule Gekas

by the 2010 Amendments ........................................................................33
5 ILCS 140/7(1)(u) ....................................................................................33
5 ILCS 140/7(1)(n) ....................................................................................33
Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991
(N.D. Ill. Sept. 13, 2010) ...........................................................................34
Fuller v. City of Chicago, No. 09 C 1672, 2009 U.S. Dist.
LEXIS 125727 (N.D. Ill. Nov. 10, 2009) ..................................................34
Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009) ........................33
Martinez v. City of Chicago, No. 09 C 5938, 2012 WL 1655953
(N.D. Ill. May 10, 2012) ............................................................................34
Henry v. Centeno, No. 10 C 6364, 2011 WL 3796749 (N.D. Ill.
Aug. 23, 2011) ...........................................................................................34
Clark v. City of Chicago, No. 10 C 1803, 2010 WL 3419464
(N.D.Ill. Aug. 25, 2010) .............................................................................34
Board of Educ. of Auburn Community School Dist. No. 10 v. Dept.
of Revenue, 242 Ill.2d 272 (2011) ..............................................................33

B.

2010 FOIA Exempts Adjudications of Employee Grievances

and Disciplinary Proceedings, Not Police Misconduct
Investigations ............................................................................................35
5 ILCS 140/7(1)(n) ....................................................................................36
5 ILCS 140/1 ..............................................................................................37
vi

Macias v. City of Chicago, No. 09 C 1240, dkt. 62 (N.D.Ill.

March 10, 2010) .........................................................................................35
Illinois Attorney General FOIA Guide to Law Enforcement (2012) .........36
Office of the Attorney General of Illinois Memorandum RE: FOIA
Request for Review, 2010 PAC 6246 ........................................................36
Christian v. City of Springfield, No. 2010 MR 461
(Sangamon Cnty. Cir. Ct. June 3, 2011) ....................................................35
Stern v. Wheaton-Warrenville Cmty. Unit. School Dist., 233 Ill.2d 396
(2009) .........................................................................................................37
Vasquez v. Parker, No. 09 C 4529 (N.D.Ill. 2010) ....................................37
Parra v. City of Chicago, No. 09 C 4067, dkt. 82 (N.D.Ill. Apr.
14, 2010) ....................................................................................................37
Alva v. City of Chicago, No. 08 C 6261, dkt. 80 (N.D.Ill. Apr. 16,
2010) ..........................................................................................................37
Bell v. City of Chicago, No. 08 C 0754, 2010 WL 753297
(N.D.Ill. Feb. 26, 2010)..............................................................................37
Livingston v. McDevitt, No. 09 C 7725, dkt. 23
(N.D. Ill. May 10, 2010) ............................................................................37
Watkins v. McCarthy, 2012 IL App (1st) 100632 ......................................37
VI.

Section 7(1)(a) and Section 7(1)(f) of FOIA Do Not Apply to CRs ..................38
Committee for Educational Rights v. Edgar, 174 Ill.2d 1 (1996) ..........................38
Montes v. Mai, 389 Ill.App.3d 424 (1st Dist. 2010) ..............................................38
5 ILCS 140/7(1)(a) .................................................................................................38
5 ILCS 140/7(1)(f) .................................................................................................38
A.

The Illinois Personnel Record Review Act Does Not Shield

CRs from Disclosure ................................................................................38
820 ILCS 40/0.01 .......................................................................................38
820 ILCS 40/8 ............................................................................................39
820 ILCS 40/11 ..........................................................................................39
vii

5 ILCS 140/7(1)(a) .....................................................................................38

Watkins v. McCarthy, 2012 IL App (1st) 100632 ................................39, 40
Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009) ........................39
Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991
(N.D. Ill. Sept. 13, 2010) ...........................................................................39
B.

The Preliminary Draft Exemption Does Not Apply to CRs .............41

5 ILCS 140/7(1)(f) .....................................................................................40
Day v. City of Chicago, 388 Ill.App.3d 70 (1st Dist. 2009) ......................40
Harwood v. McDonough, 344 Ill.App.3d 242 (1st Dist. 2003) .................41
Enviro Tech Intl v. U.S. E.P.A., 371 F.3d 370 (7th Cir. 2004) .................41
Pub. Citizen v. Office of Mgmt. and Budget, 598 F.3d 865
(D.C. Cir. 2010) .........................................................................................41

C.

Even if the Preliminary Draft Exemption Applies to

Portions of CRs, it Only Applies to Preliminary
Recommended Findings ..........................................................................42
5 ILCS 140/7(1)(f) .....................................................................................42
5 ILCS 140/8 ..............................................................................................42
Day v. City of Chicago, 388 Ill.App.3d 70 (1st Dist. 2009) ......................42
Watkins v. McCarthy, 2012 IL App (1st) 100632 ......................................42

VII.

The Circuit Court Erred in Denying Mr. Kalven Attorneys Fees

for Time and Costs Reasonably Expended in his Successful Pursuit
of the Repeater Lists ............................................................................................43
5 ILCS 140/11(i) ....................................................................................................43
Duncan Pub., Inc. v. City of Chicago, 304 Ill.App.3d 778 (1st Dist. 1999) .........43
In re Marriage of Murphy, 203 Ill.2d 212 (2003) .................................................44
Melton v. Frigidaire, 346 Ill.App.3d 331 (1st Dist. 2004) ....................................44

viii

A.

Mr. Kalven Substantially Prevailed in his FOIA Claims for

the Repeater Lists ....................................................................................44
5 ILCS 140/11(i) ........................................................................................44
Duncan Pub., Inc. v. City of Chicago, 304 Ill.App.3d 778
(1st Dist. 1999)...........................................................................................45
People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193 (1st Dist. 1997) .........45
Campaign for Responsible Transplantation v. Food & Drug Admin.,
511 F.3d 187 (D.C. Cir. 2007) ...................................................................45
Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005) .....................................45

B.

The Circuit Courts Denial of CRs Does Not Justify its

Refusal to Award Fees for Mr. Kalvens Successful Work
Winning the Repeater Lists.....................................................................46
Texas Teachers Assn v. Garland Independent School Dist.,
489 U.S. 782 (1989) ...................................................................................46
Hensley v. Eckerhart, 461 U.S. 424 (1983) ...............................................47
Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005) .....................................47
Mayock v. I.N.S., 736 F.Supp. 1561 (N.D. Cal. 1990) ...............................48
American Civil Liberties Union v. U.S. Dept. of Homeland Sec.,
810 F.Supp.2d 267 (D.D.C. 2011) .............................................................48
Elec. Privacy Info. Ctr. v. U.S. Dept. of Homeland Sec.,
811 F.Supp.2d 216 (D.D.C. 2011) .............................................................48
5 ILCS 140/1 ..............................................................................................49

ix

NATURE OF THE CASE

Plaintiff Jamie Kalven appeals from a summary judgment order denying relief
under the Freedom of Information Act, 5 ILCS 140/1 et seq., for Defendants Chicago
Police Department and City of Chicagos wrongful withholding of public records related
to complaints of police misconduct. Plaintiff also appeals the denial of attorneys fees for
his successful work winning summary judgment on his claim that Defendants wrongfully
withheld lists of Chicago police officers repeatedly charged with misconduct. No
question is raised on the sufficiency of the pleadings.
ISSUES PRESENTED FOR REVIEW
1. Whether the circuit court erred in retroactively applying substantive amendments to
Illinois FOIA to shield police misconduct records from public review.
2. Whether the circuit courts ruling that police misconduct records were per se exempt
as personnel files under Section 7(1)(b)(ii) of the 2009 version of Illinois FOIA
contradicts this Courts decisions in Watkins v. McCarthy, 2012 IL App (1st) 100632
and Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009), which held that police
misconduct records are not exempt as personnel files because they bear on the public
duties of police officers.
3. Whether the 2010 amendments to FOIAs adjudicatory exemption, which changed
the word concerning to related to, were intended to overrule this Courts decision
in Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009).
4. Whether the circuit court erred in denying Plaintiff attorneys fees for the work
performed in pursuit of his successful FOIA claims for lists of officers repeatedly
charged with misconduct.

JURISDICTION
Plaintiff Jamie Kalven appeals the judgment granted in favor of Defendants on
January 24, 2012, on the issue of whether Complaint Register files must be disclosed
under the Illinois Freedom of Information Act (FOIA), and the order of the same date
denying his request for attorneys fees on his successful FOIA claim for the production of
lists of police officers who accumulated the most misconduct complaints in Chicago, R.
2136; and the order denying his motion for reconsideration, entered on May 23, 2012. R.
2422. Plaintiff filed a timely notice of appeal on June 19, 2012. R. 2440. Jurisdiction lies
in this Court pursuant to Article VI, Section 6 of the Illinois Constitution, and Supreme
Court Rule 303(a).

STATUTES INVOLVED
1. 2009 and present amended Versions of the Illinois Freedom of Information Act, 5
ILCS 140/1 et seq.
2. Illinois Personnel Record Review Act, 820 ILCS 40/1 et seq.
3. Section 4 of the Illinois Statute on Statutes, 5 ILCS 70/4
The text of these statutes is set forth in the Appendix at page A267.

STATEMENT OF FACTS
This appeal concerns the publics right to information about charges of police
misconduct. Plaintiff Jamie Kalven, an award winning journalist, made Freedom of
Information Act requests to the Chicago Police Department (CPD), seeking two types of
documents: (1) lists of Chicago police officers who accumulated the most police
misconduct complaints in the entire City (Repeater Lists); and (2) Complaint Register
files (CRs) related to the Citys completed factual investigations into allegations of
official police misconduct against five officers charged with a pattern of abuse.
The circuit court granted summary judgment in favor of Mr. Kalven on the
Repeater Lists, but denied him an award of attorneys fees reasonably expended in
obtaining those Lists. The court granted summary judgment in favor of the Defendants on
the CRs. Mr. Kalven appeals the denial of the CRs and the denial of attorneys fees for
his successful work winning the Repeater Lists.
I.

Documents Sought by Mr. Kalven

A.

The Bond and Moore Repeater Lists

The Bond and Moore Repeater Lists identify Chicago police officers with the
most complaints of official misconduct against them, the nature of those complaints, and
the outcome of the Citys investigations of those complaints. R. 5-6, Compl. 19.1 The
Bond Repeater Lists name Chicago police officers who accumulated the most complaints
of official misconduct against them between 2001 and 2006. R. 890, Futterman Aff. 4-6;

We refer to the lists of officers repeatedly charged with abuse as the Bond and Moore
Repeater Lists because copies of those lists were produced in federal civil rights cases of
the same names: Bond v. Utreras, 04 C 2617 (N.D. Ill.), and Moore v. City of Chicago,
07 C 5908 (N.D.Ill.).
4

R. 788, Kivel Aff. 2-3. The Moore Repeater Lists identify: (1) Chicago police officers
who received more than five citizen complaints from May 2002 to December 2008; and
(2) officers who were accused of excessive force more than five times from May 2002 to
December 2008. R. 1365-66, Taylor Aff. 2-3. The CPD retrieved the Bond and Moore
Lists from its Complaint Register Management System database, an electronic database
of information regarding complaints of official police misconduct, which CPD
maintained in its ordinary course of business. R. 63, Defs. Answer 24; R. 451,
Muzupappa Aff. 2; R. 890, Futterman Aff. 6.
The CPD produced the Bond Repeater Lists to counsel for the Bond plaintiff in
response to court-ordered civil discovery in that case. R. 890, Futterman Aff. 4-6; R.
788, Kivel Aff. 2-3. When the plaintiffs counsel later returned the Lists to the
Defendants upon settlement of the Bond case, the circuit court below ordered the
Defendants to preserve and maintain the Bond Repeater Lists in their lawyers offices for
ease of production in this case. R. 892, Futterman Aff. 11-12; R. 931, Agreed Order to
Preserve. The CPD produced the Moore Repeater Lists to Moores counsel per courtordered discovery, and saved them as PDF files on the CPDs computer system. R. 1366,
Taylor Aff. 7; R. 914-15, Kivel Dep. 81-82.
B.

The Bond Complaint Register Files

The Bond CRs, also produced in civil discovery in that case, document police
misconduct complaints against the five officers charged in Bond with committing a
pattern of abuse, and the manner in which the City investigated the complaints. R. 62,
Defs. Answer 18; R. 891, Futterman Aff. 8. The CPD prepared the requested CRs, and
it possesses, uses, maintains, and controls them in the ordinary course of business. R. 63,
Defs. Answer 22-23; R. 451, Muzupappa Aff. 1-2. As with the Bond Repeater Lists,
5

the circuit court here ordered Defendants to preserve the CRs in the offices of the
Defendants lawyers for ease of production in the case at bar. R. 931.
II.

Mr. Kalvens Efforts to Obtain the Police Misconduct Records

In 2005 and 2006, Jamie Kalven published a series of articles detailing patterns of

severe police abuse in Chicago public housing. R. 1286-87, Kalven Aff. 23-26. These
patterns of abuse were the subject of the Bond federal civil rights case. R. 1285-87,
Kalven Aff. 22-26. Five police officerswho were collectively known in Ms. Bond's
neighborhood as the Skullcap Crewwere named as defendants in her suit after breaking
into her home, sexually abusing her, destroying religious objects sacred to her, and
forcing her teenage son to beat one of her neighbors for their amusement. R. 2386-87,
Kalven Aff. 24-27; R. 891, Futterman Aff. 8. Ms. Bond alleged in her suit that these
acts against her were part of the Defendants' pattern of brutal and racist abuse of public
housing residents on the South Side of Chicago. R. 1285-87, Kalven Aff. 22-27; R. 891,
Futterman Aff. 8.
On March 15, 2007, Mr. Kalven sought leave to intervene in Bond to seek access
to the Bond Repeater Lists and CRs. R. 1287, Kalven Aff. 28. On July 2, 2007, Judge
Lefkow of the U.S. District Court for the Northern District of Illinois granted Mr.
Kalvens motion to access the same documents at issue in this case, holding that the
public interest outweighs arguments for secrecy. R. 2412, Bond v. Utreras, No. 04 C
2617, 2007 WL 2003085, at *3 (N.D. Ill. July 2, 2007). On July 16, 2007, the U.S. Court
of Appeals for the Seventh Circuit issued a stay of Judge Lefkows Order pending the
Citys appeal. R. 1288, Kalven Aff. 31; Bond v. Utreras, 585 F.3d 1061, 1065 (7th Cir.
2009).

The case attracted much attention in the local and national media. R. 1289-90,
Kalven Aff. 33-36. Following the stay, the editorial boards of both the Chicago Tribune
and the Chicago Sun-Times called for the release of the documents. R. 1289, Kalven Aff.
33. A headline in the Sun-Times asked of the City's request for the stay What Are They
Hiding?. Id. Twenty-eight of the Chicago City Councils fifty aldermen joined Mr.
Kalvens position in the case before the Seventh Circuit. R. 1290, Kalven Aff. 35. The
aldermen cited a pressing need for the information, given their goal of improving
police oversight. R. 1290, Kalven Aff. 35. Numerous major media companies
including the New York Times, Chicago Tribune, Chicago Sun-Times, Los Angeles
Times, Associated Press, and the Gannett and Copley chainsfiled an amicus brief in
support of Mr. Kalvens position, noting that the information at issue was of vital
interest to their readership. R. 1290, Kalven Aff. 36.
On November 10, 2009, the Seventh Circuit ruled that Mr. Kalven lacked
standing to intervene in the Bond case to seek the requested documents. Bond, 585 F.3d
at 1080-81. The Seventh Circuit noted that the federal case did not prevent Mr. Kalven
from seeking the same documents directly from the City under the Illinois Freedom of
Information Act. Id. at 1076 n.10.
III.

Mr. Kalvens Freedom of Information Act Requests

Mr. Kalven filed two FOIA requests on November 16, 2009, within a week of the

Seventh Circuits ruling, seeking various Repeater Lists of Chicago police officers
charged with committing the most misconduct in the City, and CRs relating to seventeen
Chicago police officers, including the five officers charged in Bond. R. 17-24. On
November 23, 2009, the CPD requested seven-day extensions of the deadlines for Mr.
Kalvens requests. R. 25-34. On December 8, 2009, the CPD denied the requests,
7

claiming that they were unduly burdensome because both FOIA requests regarded the
same subject matter and because the requests would collectively encompass more than
600 separate, multiple-page files. R. 31.
On December 9, 2009, Mr. Kalven administratively appealed the denial of his
FOIA requests. R. 36. On December 16, 2009, CPD requested an extension. R. 1348. On
December 21, 2009, Mr. Kalven responded, noting that such an extension is not
authorized. R. 46-47. He declared that the failure to affirm or deny his appeal within
seven working days exhausts Mr. Kalvens administrative remedies with respect to his
FOIA requests. R. 46.
IV.

Mr. Kalvens Freedom of Information Act Lawsuit

On December 22, 2009, Mr. Kalven filed a lawsuit against the City of Chicago,

the Chicago Police Department, and Jody Weis, the Superintendent of Police, in the
Circuit Court of Cook County, challenging the denial of his FOIA requests. 2 R. 3-4.
Seeking to eliminate litigation over the volume of documents, Mr. Kalven filed a motion
to voluntarily dismiss of some of his claims on November 9, 2010. R. 461-65. The trial
court granted Mr. Kalvens motion on February 17, 2011. R. 704. Mr. Kalvens
remaining claims were limited to the CPDs denial of (1) the Bond and Moore Repeater
Lists and (2) the Bond CRs related to the five Chicago police officers charged with

On February 17, 2010, the Defendants moved to dismiss all claims against Jody Weis as
redundant of the claims against the CPD and City. R. 74-77. The circuit court granted the
Defendants motion on May 10, 2010. R. 401.
8

having engaged in a pattern of abuse. R. 462-63, Pl.s Mot. Partial Voluntary Dismissal
5. All parties then moved for summary judgment. R. 746, 864.3
A.

Summary Judgment Arguments Related to the Repeater Lists

Defendants made three main arguments that the Repeater Lists were exempt from
production, and Mr. Kalven responded to each.
(1) Defendants argued that the Lists were not CPD records because they were
produced for litigation by the Citys Law Department, and that CPD did not maintain the
Lists. R. 766-67. Mr. Kalven countered that the Repeater Lists were public records
prepared and controlled by the CPD. R. 1867-71.
(2) Defendants claimed the documents were work product produced in
anticipation of litigation and thus exempt from production under 5 ILCS 140/7(1)(m) of
FOIA. R. 767. Mr. Kalven responded that the Repeater Lists were not prepared in
anticipation of litigation, but rather in response to discovery requests for production in
federal litigation, and therefore were not the type of records protected by the work
product exemption in section 140/7(1)(m). R. 1885-87.
(3) Defendants asserted that the Repeater Lists were subject to protective orders
issued in the federal litigation for which they were produced. R. 767-68. Mr. Kalven
noted that the federal courts made clear that their protective orders, which were issued to
facilitate civil discovery, did not in any way interfere with his right to obtain the Repeater
Lists under the Illinois FOIA. R. 1887.

The Defendants originally filed for summary judgment on October 18, 2010 (R. 415),
and filed their revised memorandum on June 10, 2011 (R. 746).
9

FOIA was amended in 2010 in response to the Attorney Generals proposals to

combat government abuse and increase public access to government documents. See
Ryan Keith, Attorney general releases new FOIA rewrite, The State Journal-Register,
May 27, 2009, http://www.sj-r.com/breaking/x124601484/Attorney-general-releasesnew-FOIA-rewrite. Defendants argued that Section 140/7(1)(n) of the amended 2010
version of FOIA, which exempts [r]ecords relating to a public bodys adjudication of
employee grievances or disciplinary cases, exempted CRs, but they did not argue that it
applied to the Repeater Lists. See R. 756-58, Defs Am. Summ. J. Mem. 7-9.
B.

Summary Judgment Arguments Related to the CRs

Defendants also made several arguments that the CRs were exempt from
production. Defendants arguments and Mr. Kalvens responses follow.
(1) Defendants argued that CRs are personnel files within the meaning of the
FOIA provision that exempts personnel files from production, 5 ILCS 140/7(1)(b)(ii). R.
758-62. Mr. Kalven countered that CRs are not personnel files; they are police
misconduct investigations that bear[] on the public duties of public employees and
officials, which are not exempt from production under this section of FOIA. R. 18891901(quoting 5 ILCS 140/7(1)(b)).
(2) Defendants claimed that 5 ILCS 140/7(1)(n) of the 2010 version of FOIA,
which exempts [r]ecords relating to a public bodys adjudication of employee
grievances or disciplinary cases, applied to the CRs. R. 755-58. Mr. Kalven responded
that the 2009 version of FOIA governed this case, because his cause of action accrued in
2009, and the 2010 substantive amendments to FOIA may not be applied retroactively. R.
1879-83. He noted further that the 2010 amendments to FOIA do not materially alter the
exemption for the adjudication of employee disciplinary cases, and therefore even if the
10

2010 amendments are applied here retroactively they do not exempt police misconduct
investigations from production. R. 1901-09.
(3) Defendants argued that CRs more than four years old are prohibited from
disclosure under the Illinois Personnel Record Review Act (PRRA), 820 ILCS 40 et seq.
R. 762. Mr. Kalven noted that the PRRA does not shield police misconduct investigations
from public disclosure, and the PRRA may not be construed to diminish the right of
access to records provided by FOIA. R. 1909.
(4) Defendants claimed that the disciplinary recommendations must be redacted
under FOIAs deliberative process exemption, 5 ILCS 140/(1)(f). R. 762-66. Mr. Kalven
responded that FOIAs deliberative process exemption protects the frank and open debate
of public officials as they formulate policy; it does not apply to Defendants factual
investigations into police misconduct. R. 1911-13.
(5) Defendants asserted that the redaction of complainant and third-party witness
names and contact information from CRs would be unduly burdensome. R. 762-66. Mr.
Kalven responded that Defendants claim of burden was greatly exaggerated, and that the
public interest in the information contained in the CRs outweighs the burden of redacting
the files. R. 1913-23.
C.

The Summary Judgment Ruling

The Circuit Court of Cook County ruled on the parties motions for summary
judgment on January 24, 2012. R. 2112.
1.

The Repeater Lists

The court granted Mr. Kalvens motion for summary judgment with regard to the
Repeater Lists. R. 2117. The court rejected Defendants assertion that the Lists are not
CPD documents. Id. It found that the Lists are public records prepared by the CPD, and
11

are subject to disclosure under FOIA. Id. The court held that the Lists do not fall within
the exemption of section 140/7(1)(m), because they were not prepared in anticipation of
litigation for Defendants attorneys, but were prepared in response to discovery requests
from the opposing parties during litigation. R. 2116. It also rejected Defendants
contention that federal protective orders prevent disclosure of the Lists under FOIA. R.
2116-17. The court explained that the Seventh Circuit Court of Appeals stated that the
Bond protective order, which is substantively identical to the Moore protective order, did
not prohibit the City from disclosing the documents on public request. Id. (citing Bond,
585 F.3d at 1076 n.10).
2.

The Complaint Register Files

The court granted Defendants summary judgment on the CRs, holding that the
2010 amendments to FOIA apply retroactively to this case, and that the CRs were exempt
under 5 ILCS 140/7(1)(n) of the 2010 version as records relating to the adjudication of
employee grievances or disciplinary cases. R. 2114.
3.

Attorneys Fees

The court also held that, despite winning the Repeater Lists, the loss on the issue
of the CRs meant that Mr. Kalven had not substantially prevailed in the litigation, and
the court therefore denied attorneys fees for work related to the Repeater Lists. R. 2117.
D.

Motions to Reconsider

Defendants filed a motion to reconsider the courts ruling with regard to the
Repeater Lists, arguing that FOIAs 2010 amended adjudicatory exemption, 5 ILCS
140/7(1)(n), also exempts the Lists. R.Supp. 13-14. In response, Mr. Kalven noted that
Defendants waived the argument that 5 ILCS 140/7(1)(n) exempted the Repeater Lists

12

from production, and that Defendants had admitted that they never used the Lists in the
adjudication of an employee grievance or disciplinary proceeding. R.Supp. 46-48.
Mr. Kalven filed a motion to reconsider the courts summary judgment ruling on
the issues of the courts denial of the CRs and attorneys fees. R. 2151. Mr. Kalven
argued that the court used an outdated test for retroactivity when it applied 2010
substantive amendments to FOIA in this case. R. 2153-63. Mr. Kalven stated that the
circuit courts test was rejected by the Illinois Supreme Court in Commonwealth Edison
v. Will County Collector, 196 Ill.2d 27, 34-39 (2001) and Caveney v. Bower, 207 Ill.2d
82, 95 (2003). R. 2161. Mr. Kalven also argued that the court erred in holding that the
2010 amendments exempt police misconduct investigations from production under FOIA.
R. 2163-69. Finally, Mr. Kalven noted that he substantially prevailed in this suit by
winning his claims for the Repeater Lists, and therefore was entitled to attorneys fees for
the work in obtaining those Lists. R. 2169-75.
E.

Denial of Motions to Reconsider

1.

The Repeater Lists

The court denied Defendants motion to reconsider. It noted that Defendants did
in fact waive the argument that the Repeater Lists were exempt under 5 ILCS
140/7(1)(n). R. 2423. It noted further that the Lists are not personnel records, but
documents created for production in discovery during federal civil rights litigation. Id.
2.

The Complaint Register Files

The court also denied Mr. Kalvens motion for reconsideration on the release of
the CRs. R. 2423-25. The court rejected Mr. Kalvens argument that the test for
retroactivity from Commonwealth Edison and Caveney prohibited the retroactive
application of the 2010 FOIA amendments. R. 2424. The court also rejected a number of
13

federal cases holding that CRs are not exempt from production under Section 7(1)(n) of
the 2010 version of FOIA. R. 2424. And the court ruled that even if the 2010
amendments were not retroactive, CRs were exempt under the 2009 personal privacy
exemption, 5 ILCS 140/7(1)(b)(ii), which protects personnel files. R. 2424-25.
3.

Attorneys Fees

The court denied Mr. Kalvens motion to reconsider the denial of attorneys fees
for his successful work on the Repeater Lists. R. 2425.
V.

Appeal
Both parties filed notices of appeal. Mr. Kalven appealed the courts ruling on the

CRs and attorneys fees, and the order denying his motion for partial reconsideration. R.
2440, 2444. The Defendants appealed the order granting Mr. Kalvens motion for
summary judgment on the Repeater Lists and denying their motion for partial
reconsideration. R. 2444-45. On August 30, 2012, this Court granted Mr. Kalvens
motion to consolidate the appeals. Kalven v. City of Chicago, No. 12-1846 (Ill.App.1st
Aug. 30, 2012) (order consolidating appeals).

14

ARGUMENT
This appeal is about the publics right to know how the Chicago Police
Department and City of Chicago have addressed complaints of police misconduct against
officers charged with a pattern of brutal and racial abuse. More fundamentally, this
appeal concerns the publics right to access information about its governmentthe very
information necessary for the public to be able to fulfill its right and responsibility to
ensure that the government operates in the public interest. The Illinois Legislature gave
voice to the purpose of FOIA in the first section of the Act:
Pursuant to the fundamental philosophy of the American constitutional form of
government, it is declared to be the public policy of the State of Illinois that all
persons are entitled to full and complete information regarding the affairs of
government and the official acts and policies of those who represent them as
public officials and public employees. . . . Such access is necessary to enable the
people to fulfill their duties of discussing public issues fully and freely, making
informed political judgments and monitoring government to ensure that it is being
conducted in the public interest.
5 ILCS 140/1.
The public need for the information at issue here could not be more compelling.
It has been powerfully articulated by Illinois and federal courts. It is embodied in efforts
by a majority of the Chicago City Council to gain access to this very information in order
to discharge their legislative responsibilities. And the need for these documents has been
given voice by a broad spectrum of Chicago and national mediain their coverage, in
their editorials, and in their support for legal challenges to Defendants inappropriate
secrecy.
Ruling on the very documents at issue in this case, Federal District Judge Lefkow
held that the public interest outweighs arguments for secrecy:

15

The public has a significant interest in monitoring the conduct of its police
officers and a right to know how allegations of misconduct are being investigated
and handled. . . . Without such information, the public would be unable to
supervise the individuals and institutions it has entrusted with the extraordinary
authority to arrest and detain persons against their will. With so much at stake,
defendants simply cannot be permitted to operate in secrecy.
R. 2412, Bond v. Utreras, No. 04 C 2617, 2007 WL 2003085, at *3 (N.D. Ill. July 2,
2007), revd on other grounds, 585 F.3d 1061 (7th Cir. 2009).
Indeed, this Court has twice ruled that records that related to police misconduct
complaints, including Chicago police CRs, bear directly on the public duties of police
officers and must be produced under FOIA. Watkins v. McCarthy, 2012 IL App (1st)
100632, 25; Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009).
The circuit court, in denying Mr. Kalven access to the CRs, deprived the public of
its ability to oversee and monitor the Chicago Police Department to ensure that it is
operating in the public interest. In doing so, the court committed four legal errors: (1) the
circuit court retroactively applied substantive amendments to the Illinois FOIA that were
not enacted until after this cause of action accrued; (2) the court wrongly held that CRs
are exempt from disclosure as personnel files under the 2009 version of FOIA,
contradicting this Courts express rulings to the contrary in Watkins, 2012 IL App (1st)
100632, 19-28 and Gekas, 393 Ill.App.3d 573; (3) the court erroneously held that the
CRs were exempt from disclosure under the adjudicatory exemption of the amended 2010
version of FOIA; and (4) the court erroneously denied Plaintiff attorneys fees for his
success in winning an order compelling disclosure of the lists of police officers who
accumulated the most complaints of official misconduct in Chicago.

16

I.

Standard of Review
Under FOIA, records about public officials and their duties are presumed to be

open and accessible. Natl Assn of Crim. Def. Lawyers v. Chi. Police Dept, 399
Ill.App.3d 1, 11 (1st Dist. 2010) (NACDL). In keeping with the core commitments of
FOIA, the Supreme Court emphasized that FOIA should be afforded a liberal
construction, and statutory exemptions must be narrowly construed. Stern v. WheatonWarrenville Cmty. Unit. School Dist., 233 Ill.2d 396, 411 (2009) (internal citations
omitted). Ties go to the public.
Defendants must meet their burden to prove that specific documents fit within
their claimed statutory exemptions. Ill. Educ. Assn v. Ill. State Bd. of Educ., 204 Ill.2d
456, 464 (2003). The Supreme Court explained: To meet this burden and to assist the
court in making its determination, the agency must provide a detailed justification for its
claim of exemption, addressing the requested documents specifically and in a manner
allowing for adequate adversary testing. Id. (internal quotation marks omitted).
Summary judgment is proper only where the pleadings, depositions, and
affidavits demonstrate that no genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law. NACDL, 399 Ill.App.3d at 8. In making
this determination, the evidence is to be construed strictly against the movant and
liberally in favor of the opponent, drawing all reasonable inferences from the record in
favor of the nonmoving party. Bluestar Energy Servs. v. Ill. Commerce Commn, 374
Ill.App.3d 990, 993-94 (1st Dist. 2007).
The circuit courts order granting Defendants partial summary judgment is
reviewed de novo. Mendez v. Atl. Painting Co., Inc., 404 Ill.App.3d 648, 650 (1st Dist.
2010). The questions raised in this appeal deal with construction of the FOIA statute,
17

which as questions of statutory interpretation are pure questions of law also subject to de
novo review. Clark Investments, Inc. v. Airstream, Inc., 399 Ill.App.3d 209, 213 (3rd
Dist. 2010). See also Board of Educ. of Auburn Community School Dist. No. 10 v. Dept.
of Revenue, 242 Ill.2d 272, 278 (2011).
II.

The Public Interest in the Requested Police Misconduct Records is

Paramount
The documents at issue in this appeal are of profound public interest. As Jamie

Kalven states in his affidavit:

The simple act of restoring this information to the public sphere will have
immediate benefits. It will reduce the spaces in which abusive officers can operate
with impunity. It will enable citizens and their elected representatives to better
perform their roles. It will restore public trust, thereby contributing to the
community-police relations on which effective law enforcement depends. It will
relieve the Chicago Police Department of the costly, depleting, and self-defeating
effort not to know what it has the power to know about patterns of police abuse,
thereby enhancing the quality of law enforcement it provides the citizens of
Chicago. Above all, it will restore to its proper place a core principle of
democratic accountability embodied in the Illinois Freedom of Information Act.
R. 1291-92, Kalven Aff. 40.
The public entrusts police officers with extraordinary powersthe power to take
our freedom, to arrest, to use force, even the power to kill. R. 1291, Kalven Aff. 39.
Courts have consistently recognized the strong public interest in monitoring those we
give these great powers. See, e.g., Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990)
(It would be difficult to find a matter of greater public concern in a large metropolitan
area than police protection and public safety.); Wiggins v. Burge, 173 F.R.D. 226, 229

18

(N.D.Ill. 1997) (The manner in which such allegations [of police misconduct] are
investigated is a matter of significant public interest.)4,5
The public interest in the documents at issue in this case is not abstract or
conjectural. The public has, in fact, spoken. Front page articles, editorials from Chicagos
leading newspapers, an amicus brief by major national media organizations, and the
intervention in Bond by a majority of the City Council urging release of these documents
all testify to the intensity of the public interest. R. 1289-90, Kalven Aff. 33-36.
The CPDs wrongful withholding of this public information inflicts multiple
harms. Secrecy allows police abuse to flourish, imposes staggering monetary costs on
Chicago residents, undermines the effectiveness of law enforcement in fighting crime,
and impairs the publics ability to perform its essential monitoring function contemplated
by FOIA.
First, secrecy enables the small percentage of the force who have been repeatedly
charged with police misconduct, including the five officers whose CRs are at issue here,
to believe that they may abuse Chicago residents with impunity. Craig Futterman,

See also Cassidy v. Am. Broadcasting Companies, 60 Ill.App.3d 831, 839 (1st Dist.
1978) ([T]he conduct of a policeman on duty is legitimately and necessarily an area
upon which public interest may and should be focused.); Coursey v. Greater Niles Twp.
Pub. Corp., 40 Ill.2d 257, 265 (1968) (It is indisputable that . . . the public has a far
greater interest in the qualifications and conduct of law enforcement officers . . . than in
the qualifications and conduct of other comparably low-ranking government
employees.).
5

The Seventh Circuit has explicitly struck the balance between disclosure and privacy in
favor of the former in matters concerning police disciplinary records. Hutchins v. Clarke,
661 F.3d 947, 951-54 (7th Cir. 2011) (balancing the public interest in protecting its
citizens reputations and privacy against the strong public interest in maintaining open
records under Wisconsin law, and noting that in cases concerning the disclosure of law
enforcement disciplinary records only exceptional case[s] defeat the strong
presumption of openness).
19

Melissa Mather, & Melanie Miles, The Use of Statistical Evidence to Address Police
Supervisory and Disciplinary Practices: The Chicago Police Departments Broken
System, 1 DePaul J. for Soc. Just. 251, 289 (2008). The probability that a Chicago police
officer charged with the most serious forms of abuse will be suspended for a week or
more is less than two in a thousand. Id. at 265. Seventy-five percent of officers charged
with the most abuse in the CPD were never subjected to discipline by the CPD. Id. at
279.6
By allowing police abuse to continue unabated, secrecy costs Chicago taxpayers
tens of millions of dollars each year in awards to victims of abuse and associated legal
fees. See David Heinzmann, 2 cop misconduct cases to cost $33M, Chi. Trib., Jan, 15,
2013, at C1; Officer Herrera Goes Public, CBS 60 Minutes, Feb. 11, 2009,
http://www.cbsnews.com/8301-18560_162-4139413.html (Chicago paid out over $155
million dollars to victims of police misconduct from 2004-2009). A recent study found
that wrongful convictions resulting from police misconduct caused innocent people to
suffer 926 years of imprisonment and cost Illinois taxpayersdisproportionately
Chicagoans$214 million. John Conroy & Rob Warden, The High Costs of Wrongful

A Chicago jury recently found that the secrecy and institutional denial embodied in the
Chicago Police Departments code of silence and failure to discipline officers charged
with misconduct caused former Officer Anthony Abbate to believe that he could pummel
a much smaller, female bartender without fear of consequence. App. A404, Obrycka v.
City of Chicago, No. 07 C 2372, 2012 WL 6642354 (N.D. Ill. Dec. 20, 2012). That same
secrecy allowed former Chicago Police Commander Jon Burge and his cohorts to engage
in systematic torture of African-American prisoners for more than a decade. United
States ex. rel. Maxwell v. Gilmore, 37 F.Supp.2d 1078, 1094 (N.D. Ill. 1999). See also
John Hagedorn et al., Crime, Corruption, and Cover-ups in the Chicago Police
Department, University of Illinois at Chicago, Department of Political Science (Jan. 17,
2013), available at http://bit.ly/10Lvc8s (compilation that documents over five decades of
the significant costs of police abuse in Chicago and the secrecy that allows it to flourish).
20

Convictions, Better Govt Assn (June 18, 2011), available at

http://www.bettergov.org/investigations/wrongful_convictions_1.aspx.
Second, secrecy hampers the police in solving crime. As former Seattle Chief of
Police Norman Stamper explains in his affidavit, withholding information about police
misconduct makes communities less safe by diminishing public trust in law enforcement,
straining community-police relations, and making citizens less likely to cooperate with,
provide information to, or come to the aid of the police. R. 939-40, Stamper Aff. 11-13.
See also Tom R. Tyler, Enhancing Police Legitimacy, 593 Annals of the Am. Soc. of
Polit. & Soc. Sci. 84, 85 (2004).
Finally, efforts by the government to hide public records of complaints of police
abuse undermine the essential monitoring role of citizens and their elected representatives
envisioned by the Illinois Freedom of Information Act. The antidote to the multiple
harms caused by secrecy is transparency. Access to such public information improves
police effectiveness, integrity, accountability, and ultimately our public safety. R. 940-41,
Stamper Aff. 14, 16-17.7 In granting a motion to make Chicago police CRs public,
Federal Judge Ruben Castillo observed: The only way to end [police abuse] is to
evaluate and reevaluate past practices. Unfortunately, the City cannot accomplish this on
its own. Some of these issues require public debate and appropriate media scrutiny. Doe
v. Marsalis, 202 F.R.D. 233, 238 (N.D. Ill. 2001).

See also Joanna C. Schwartz, Myths of Mechanics and Deterrence: the Role of Lawsuits
in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023, 1067-76 (2010) (police
behavior shown to improve when information about police misconduct is released);
Robert J. Kane, Collect and Release Data on Coercive Police Actions, 6 Criminology &
Pub. Poly 773, 776-79 (2007) (making police data available to the public improves
police department performance).
21

III.

The Circuit Court Erred in Retroactively Applying Substantive 2010 FOIA

Amendments to Mr. Kalvens 2009 Cause of Action
Mr. Kalvens claim in this case accrued in 2009. Mr. Kalven submitted his FOIA

request in 2009, Defendants denied the FOIA request in 2009, and Mr. Kalven exhausted
all administrative review steps required under FOIA in 2009. R. 17-47. This suit was
filed on December 22, 2009. R. 3-4. The only reason that Mr. Kalven did not obtain his
requested records in 2009 is that Defendants wrongfully withheld them.
In analyzing Mr. Kalvens claims, the circuit court should have applied the FOIA
provisions in effect at the time that Mr. Kalvens claims accrued. Instead, the court
retroactively applied substantive FOIA amendments enacted in 2010.8 This is legal error.9
In reaching its decision, the circuit court relied on an outdated vested rights test that
was expressly rejected by the Illinois Supreme Court in Commonwealth Edison v. Will
County Collector, 196 Ill.2d 27, 34-39 (2001). Applying this test, the court reasoned that
the 2010 FOIA applied to Mr. Kalvens claims because Mr. Kalven failed to identify
any vested right he possesses in the application of the 2009 version of FOIA. R. 213738.
Before Commonwealth Edison, Illinois courts had been struggling with
retroactivity and had produced inconsistent decisions on the issue. Id. at 33-36. The

The circuit court mistakenly believed that the relevant time frame for assessing
retroactivity is the date that the court would order the documents to be produced, instead
of the date that Mr. Kalvens cause of action accrued. R. 2424. Cf. Rivard v. Chicago
Fire Fighters Union, Local No. 2, 122 Ill. 2d 303 (1988) (finding that because the cause
of action arose before the statutes effective date, application of the statute would be
retroactive, and declining to apply it).
9

Whether an amendment to a statute will apply retroactively is a matter of statutory

construction; therefore, the standard of review is de novo. Deicke Center v. Illinois
Health Facilities Planning Bd., 389 Ill.App.3d 300, 303 (1st Dist. 2009).
22

Commonwealth Edison Court explicitly rejected the vested rights approach in favor of
the two-step approach of the United States Supreme Court in Landgraf v. USI Film
Products, 511 U.S. 244, 280 (1994). Commonwealth Edison, 196 Ill.2d at 36-39
The Illinois Supreme Court explained the two-step test from Landgraf: [S]tep
one requires a court to ascertain whether the legislature has clearly indicated the temporal
reach of the amended statute. Caveney v. Bower, 207 Ill.2d 82, 94 (2003), citing
Commonwealth Edison, 196 Ill.2d at 38. If so, then, absent a constitutional prohibition,
that expression of legislative intent must be given effect. Id. Courts may move to
Landgrafs second step only when the legislative intent is unclear. Landgraf, 511 U.S. at
280. The second step instructs courts to decide whether application of the statute would
have a retroactive impact; if it would have such an impact, the Court must presume that
the legislature did not intend for the law to be applied retroactively. Landgraf, 511 U.S. at
280; Caveney, 207 Ill.2d at 91.
In Illinois, however, it is never necessary to go beyond Landgrafs first step
because the Illinois legislature has clearly indicated the temporal reach of every
amended statute. Caveney, 207 Ill.2d at 92 (emphasis in original). Where the legislative
intent is unclear on the face of the amendments, the Statute on Statutes default rule
applies. Id.10 Section 4 of the Statute on Statutes states that Illinois enactments that are
procedural in nature may be applied retroactively, while those that are substantive may

10

As the Illinois Supreme Court explained, For purposes of Landgrafs first step, the
[Illinois] legislature always will have clearly indicated the temporal reach of an amended
statute, either expressly in the new legislative enactment or by default in section 4 of the
Statute on Statutes. Caveney, 207 Ill.2d at 95 (emphasis in original). See also Connell v.
Crosby, 210 Ill. 380, 386-87 (Ill. 1904) (It is to be assumed the amendatory act was
framed in view of the provisions of said section 4 . . . and that it was the legislative intent
the amendatory act should have prospective operation, only.).
23

not. Id. See also Doe v. University of Chicago, 404 Ill.App.3d 1006, 1012 (1st Dist.
2010).
As explained below, the application of the correct test as adopted by the Illinois
Supreme Court in Commonwealth Edison and Caveney prevents the substantive
amendments to 2010 FOIA from being applied retroactively to Mr. Kalvens 2009 cause
of action.11
A.

The Legislature Clearly Intended that the 2010 FOIA Amendments be

Applied Prospectively

The legislatures intent regarding the temporal reach of the 2010 FOIA
amendments is clear on the face of the statute. The Public Act containing the
amendments to the 2010 FOIA was signed into law, on August 17, 2009, with an explicit
provision as to the effective date: Effective Date. This Act takes effect on January 1,
2010. Pub. Act 96-0542, 99 (2009), available at
http://www.ilga.gov/legislation/publicacts/96/096-0542.htm.
The circuit court erroneously interpreted the legislatures delayed implementation
of the amendments as evidence of its intent to apply them retroactively. R. 2424. The
Illinois Supreme Court and this Court, however, have ruled that the delayed
implementation date of [an] amendment indicates a clear legislative intent for the
prospective application of the provision. General Motors Corp. v. Pappas, 242 Ill.2d
163, 187 (2011) (where amendment was signed into law in August 2005 and became
effective on January 1, 2006, legislative intent was clear that amendment must be
prospectively applied). See also People v. Brown, 225 Ill.2d 188, 201 (2007) (legislature

11

Plaintiffs attach the 2009 version of FOIA at App. A271. The present version of FOIA
is attached at App. A282.
24

intended only prospective application where certain provisions of a law did not take
effect until the year following enactment); People v. Martinez, 386 Ill.App.3d 153, 162
(1st Dist. 2008) (similar); People v. Blanks, 361 Ill.App.3d 400, 410 (1st Dist. 2005)
(noting that [c]ourts have held that the legislatures postponement of an effective date is
direct evidence that a retroactive application was not intended and finding no retroactive
application intended where effective date of legislation was delayed).
Thus, contrary to the circuit courts holding, the delayed effective date of the
2010 FOIA amendments clearly shows that the amendments were intended to be applied
prospectively. Under Commonwealth Edison and its progeny, that is where the inquiry
should end. Mr. Kalvens claims accrued in 2009; the 2009 version of FOIA therefore
applies to his claims.
B.

The Statute on Statutes Prohibits Retroactive Application of the

Substantive 2010 FOIA Amendments

Even assuming, arguendo, that the legislature had not clearly indicated that the
2010 FOIA amendments must be applied prospectively, Section 4 of the Illinois Statute
on Statutes, 5 ILCS 70/4, prohibits retroactive application of the amendments. The
amendment at issue, Section 7(1)(n) of the 2010 FOIA, is plainly substantive. Under
Section 4, it therefore cannot apply retroactively. Caveney, 207 Ill.2d at 92.
Substantive law involves the rights underlying the lawsuit. People v. Mertz,
218 Ill.2d 1, 102 (2005). See also Doe v. University of Chicago, 404 Ill.App.3d at 1012
(a substantive act establishes, creates or defines rights.) (citations omitted).12

12

By contrast, [p]rocedure is the machinery for carrying on the suit, including pleading,
process, evidence and practice, whether in the trial court, or in the processes by which
25

Amended Section 7(1)(n) exempts from disclosure to the public [r]ecords relating to a
public bodys adjudication of employee grievances or disciplinary cases. 5 ILCS
140/7(1)(n). Section 7(1)(n) does not provide the procedures for carrying out a FOIA suit;
it defines the scope of the publics right to documents belonging to a public body.
Because the amendment bears on a right, it is substantive, not procedural.13
The circuit court ignored the Statute on Statutes distinction between substantive
and procedural amendments. Instead, contrary to the Supreme Courts holding in
Caveney, the circuit court proceeded to step two of Landgraf and applied the outdated
vested rights approach to hold that there could be no retroactive impact to applying
the 2010 version of Section 7 FOIA. R. 2424 (emphasis added), R. 2113.14 In jumping to
step 2, the circuit court made the same error as the lower court in Caveney. Like the

causes are carried to the appellate courts for review, or laying the foundation for such
review. Id. (internal quotation marks omitted).
13

The legislature provided an express statement in the 2010 amendments to FOIAs

attorneys fees procedures to prevent retroactive application of the new procedures,
because those procedures would apply retroactively by default under Section 4 in the
absence of an express legislative statement to the contrary. See e.g., Callinan v. Prisoner
Review Bd., 371 Ill.App.3d 272, 275-76 (3rd Dist. 2007) (the 2004 FOIA amendment to
Section 11(i), the attorneys fees provision, applied retroactively because it was
procedural and the legislature did not indicate its temporal reach). For obvious reasons,
the legislature provided no similar statement with respect to FOIAs substantive
amendments. The circuit court turned the legislatures logic on its head to somehow
conclude that it intended FOIAs substantive amendments to be retroactive. R. 2424. The
courts reasoning does not withstand scrutiny. Unlike attorneys fees procedures,
substantive amendments may not be applied retroactively in the absence of the
legislatures express intent to do so. See Shoreline Towers v. Condominium Assn v.
Gassman, 404 Ill.App.3d 1013, 1023-1024 (1st Dist. 2010) (citation omitted) ([S]tatutes
and amendatory acts are presumed to operate prospectively unless the statutory language
is so clear as to admit of no other construction.).
14

Contra Caveney, the circuit court ruled that if the legislature had not clearly indicated
the temporal reach of the 2010 version of FOIA on the face of the amendments, it must
determine whether the amendments have a retroactive impact under step two of
Landgraf. R. 2424.
26

circuit court here, the lower court in Caveney mistakenly applied step two and found that
the state had not asserted a vested right in the application of the pre-amendment statute
to retroactively apply a substantive amendment. Caveney v. Bower, 326 Ill.App.3d 1, 5-6
(2d Dist. 2001). The Illinois Supreme Court reversed and admonished that under the
proper test, vested rights are simply irrelevant to the analysis. Caveney, 207 Ill.2d at
95. The Court explained that, because of Section 4 of the Statute on Statues, it is
virtually inconceivable that an Illinois court will ever go beyond step one of the
Landgraf approach. Id. at 94.
The circuit court here did the inconceivable in proceeding to Landgrafs step
two to retroactively apply 2010 FOIAs new Section 7(1)(n) to Mr. Kalvens 2009 cause
of action.15 As in Caveney, the 2010 substantive FOIA amendments may not be applied
retroactively here. Id. ([S]ection 4 represents a clear legislative indication that the
retroactive application of substantive statutory changes is forbidden.). The 2009 version
of FOIA applies to Mr. Kalvens 2009-accrued claim.

15

In applying Landgrafs step two, the circuit court relied on a federal case, City of
Chicago v. U.S. Dept. of Treasury, Bureau of Alcohol, Tobacco, and Firearms, 423 F.3d
777, 783 (7th Cir. 2005). R. 2137; R. 2423-24. However, the Seventh Circuit utilized
Landgrafs second step in City of Chicago because the federal courts, unlike Illinois
courts, do not look to any general savings clause such as Illinois Section 4 of the
Statute on Statutes in determining statutes effects. See People v. Glisson, 202 Ill.2d 499,
255 (2002).
27

IV.

CRs Are Not Exempt under Section 7(1)(b) of the 2009 Version of FOIA
The circuit court erred when it held that CRs are exempt under Section 7(1)(b) of

the 2009 version of FOIA. Section 7(1)(b) exempts

[i]nformation that, if disclosed, would constitute a clearly unwarranted invasion of
personal privacy, unless the disclosure is consented to in writing by the individual
subjects of the information. The disclosure of information that bears on the public
duties of public employees and officials shall not be considered an invasion of
personal privacy.
5 ILCS 140/7(1)(b) (West 2008) (emphasis added). The statute also provides a list of
examples of information protected under Section 7(1)(b), including personnel files and
personal information maintained with respect to employees . . . of any public body. 5
ILCS 140/7(1)(b)(ii) (West 2008).
CRs comprise information that bears on the public duties of public employees
and officials and thus are not exempted by Section 7(1)(b). The circuit courts finding
that CRs are personnel files within the meaning of 7(1)(b)(ii) (R. 2424) contravenes the
plain language of the statute and governing precedent of the Illinois Supreme and
Appellate Court.
The circuit court wrongly believed that it was not bound by the Fourth Districts
decision in Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009), because according
to the circuit court, CRs are per se exempt as personnel files. R. 2424. In a recent case
dealing with the exact same issue, this Court confirmed that Gekas controls the
production of records related to complaints of police misconduct under FOIA, and held
that Chicago police CR files are not exempt from disclosure under section 7(1)(b)(ii) as
personnel files. Watkins v. McCarthy, 2012 IL App (1st) 100632, 22.
In Watkins, which is factually indistinguishable from the case at bar, a plaintiff
sought to compel disclosure of Chicago police CRs under the Illinois Freedom of
28

Information Act. Id at 1. Applying the plain language of Section 7(1)(b), this Court
found that Chicago police CRs bear on the public duties of police officers, and thus fall
outside of Section 7(1)(b)s exemption for personnel files. Id. at 25. The circuit courts
ruling to the contrary in this case must be overturned.
Gekas is also factually indistinguishable from this case. Like both the Watkins
plaintiff and Mr. Kalven, the Gekas plaintiff made a FOIA request for records of
complaints of police misconduct, including police internal affairs investigations and
disciplinary recommendations. Gekas, 393 Ill.App.3d at 574. The Gekas defendant
argued, as Defendants do here, that the requested records were exempt from disclosure
under Section 7(1)(b)(ii). Id. The Appellate Court rejected the defendants argument as
contrary to the text of the statute and the Supreme Courts holding in Stern v. WheatonWarrenville Community Unit School Dist., 200, 233 Ill.2d 396 (2009), and held that
records relating to complaints of police misconduct constitute information bearing on the
public duties of public employees. Gekas, 393 Ill.App.3d at 583.
The Appellate Court also held that the possibility of complaints that had been
determined to be unfounded did not render the documents protected from disclosure:
[Citizens] might want to see whether complaints that the Division determined to
be unfounded are really unfounded. Obviously, citizens cannot perform this
critique (which section 1 calls nothing less than the peoples duty) if so-called
unfounded complaints are exempt from disclosure for the tautological reason
that the public body decided they were unfounded. Such an exemption would
throw a cloak over potential wrongdoing and insulate officials from political
accountability.
Id. at 585.
This Court in Watkins confirmed the Fourth Districts rulings in Gekas: (1) that
police CRs are not exempt as personnel files, Watkins, 2012 IL App (1st) 10063, 22 and
(2) that [c]omplaints, founded or unfounded, that an officer committed misconduct in his
29

or her capacity are information that bears on his or her public duties, and are not exempt.
Id. at 25, citing Gekas, 393 Ill.App.3d at 586 (internal quotations and brackets omitted).
The records at issue hereinvestigations of official police misconduct complaints
against five Chicago police officers repeatedly charged with abusebear on the officers
public duties in precisely the same way that the Gekas documents bore on the public
duties of deputy sheriffs in Sangamon County and also precisely the same way that the
Chicago police CRs bore on the public duties of the Chicago police detectives in the
Watkins case.
As this Court has made clear: [A] complaint of misconduct against a [police
officer] in the performance of his public duties should not, as set forth in the introduction
of section 7(1)(b), be considered an invasion of personal privacy, even if contained
within otherwise exempt personnel files. Watkins, 2012 IL App (1st) 100632, 24.16
The circuit court denied Mr. Kalven the CRs based on dicta from the Third
District in Copley Press v. Board of Education, 359 Ill.App.3d 321 (3d Dist. 2005) and
language from an earlier Supreme Court decision, Lieber v. Board of Trustees of
Southern Illinois University, 176 Ill. 2d 401 (1997). R. 2424. Lieber, like Copley, found

16

See also Gekas, 393 Ill.App.3d at 588 ([F]iling [a] quintessentially public document in
a personnel file would not make it any the less a public document. . . . The legislature
could not have intended the accessibility of public documents, or their private or public
nature, to depend on a clerical formality, that is, the public bodys choice to store these
documents in a personnel file.) Defendants claim to the personnel files exemption is
even weaker here, where Defendants have made no showing that CRs are even
maintained in officer personnel files. Defendants CR database is instead maintained in
CPDs Internal Affairs Division. R. 773. Regardless of where a police department
decides to file them, records related to complaints of official police misconduct are
information that bears on [an officers] public duties, and the disclosure of such
information shall not be considered an invasion of personal privacy. Id. at 586
(quoting 5 ILCS 140/7(1)(b) (West 2006)).
30

that records falling within one of the Section 7(1)(b) categories are per se exempt from
disclosure. However, more recently in Stern, 233 Ill. 2d 396, the Supreme Court clarified
that Copley, like Lieber, . . . did not consider whether a document, even if normally
maintained in a personnel file, is subject to disclosure because it bears on the public
employees public duties. Stern, 233 Ill.2d at 409. In Stern, the Court did consider that
issue, and unanimously held that records bearing on a public employees duties are not
exempt as personnel files under Section 7(1)(b)(ii). Id. at 411-12.
Plaintiff acknowledges that the Copley case states in dicta that items that could
reasonably be found in a personnel file, such as employment contracts and disciplinary
records, are per se exempt. Copley Press, 359 Ill.App.3d at 324. But Copleys broad
dicta was expressly rejected by the Supreme Court. Stern, 233 Ill. 2d at 409-10. No
actual conflict between Gekas and Copley exists once Copley is stripped of the dicta
squarely rejected by the Supreme Court in Stern. Copley involved a request for employee
performance evaluations and a letter summarizing the employees basis for dismissal;
Gekas involved records related to complaints of official police misconduct. The Gekas
court highlighted the critical distinction between performance evaluations and police
misconduct complaints: What officers do in their official capacity, such as committing
excessive force against civilians, is not their private business. Gekas, 393 Ill.App.3d at
583.17

17

When Federal Judge Milton Shadur addressed the City of Chicagos attempt to create a
conflict between Gekas and Copley, he held: [A]ny contention that those two Appellate
Court decisions are at odds with each other does not pass . . . the straight-face test. One
need only read the Copley Press opinion to recognize and to understand immediately the
patently different factual matrices and legal issues posed by the cases. App. A410,
31

Because the CRs at issue here, like the records at issue in Watkins, Gekas, and
Stern, bear on the public duties of public employees, they are not exempt under Section
7(1)(b)(ii) and the judgment of the circuit court should be reversed.18
V.

2010 FOIA Amendments Do Not Exempt CRs from Public Disclosure

Assuming arguendo that the circuit court were somehow permitted to give

retroactive application to the 2010 substantive amendments to FOIA, it committed

another legal error in finding that amended Section 7(1)(n) exempts Chicago police CRs.
The 2010 amendments include the following exemption: [r]ecords relating to a
public bodys adjudication of employee grievances or disciplinary cases; however, this
exemption shall not extend to the final outcome of cases in which discipline is imposed.
5 ILCS 140/7(1)(n). The 2009 version of FOIA contained a virtually identical exemption.
See 5 ILCS 140/7(1)(u) (West 2008) (exempting information concerning any public
bodys adjudication of . . . employee grievances or disciplinary cases, except for the final
outcome of the cases.).

Padilla v. City of Chicago, No. 06 C 5462, 2009 WL 2501393, at *1 (N.D. Ill. Aug. 14,
2009).
18

Furthermore, Section 7(1)(b)(v)s express exemption of information revealing the

identity of persons who file complaints with . . . law enforcement . . . agencies would
make little sense if the legislature did not consider the complaints themselves a matter of
public information. The statutory interpretation canon expressio unius est exclusio
alterius holds that the expression of one thing is the implied exclusion of the other.
Gekas, 393 Ill.App.3d at 587 (citations omitted). The court in Gekas found that it would
be unexpected and illogical for the legislature, in section 7(1)(b)(v), to specify only its
objection to disclosing the name of the complainant if it also objected to disclosing the
complaint. Id. In other words, the legislature would not have provided the exemption of
only a small part of a complaint if it intended to exempt police misconduct complaints in
their entirety.
32

Whether the amended Section 7(1)(n) exempts CRs is a matter of first impression
in this Court. While the federal district courts that have addressed the issue are split, the
better reasoned decisions hold that the CRs are not exempt. Furthermore, the authoritative
opinion of the Illinois Attorney General, the moving force behind the 2010 amendments,
is that CRs are not exempt under 7(1)(n).
The circuit courts contrary ruling constitutes legal error for two reasons.19 First,
when the Illinois Legislature tweaked the language of the 2009 FOIA adjudicatory
exemption, it did not intend to overrule Gekas v. Williamson, 393 Ill. App.3d 573 (4th
Dist. 2009) by creating an exemption for records related to police misconduct complaints
and investigations. Second, 2010 FOIA exempts the adjudication of employee grievances
and disciplinary cases, not police misconduct investigations.
A.

The Illinois Legislature Did Not Intend to Overrule Gekas by the 2010
Amendments

The circuit court failed to recognize that FOIA had long exempted information
concerning any public bodys adjudication of employee grievances or disciplinary cases.
5 ILCS 140/7(1)(u) (West 2008). Yet no court had ever found that the adjudicatory
exemption was meant to apply to police misconduct investigations. In fact, this Court
squarely ruled that police misconduct investigations must be produced pursuant to FOIA.
Gekas, 393 Ill.App.3d at 585-86.
That is the context in which the legislature in the 2010 FOIA amendments
tweaked the wording of the exemption. The only change it made was to replace the words

19

The circuit courts ruling that 7(1)(n) shields CRs from disclosure is a question of
statutory interpretation of which the Court should perform de novo review. Board of
Educ. of Auburn Community School Dist. No. 10 v. Dept. of Revenue, 242 Ill.2d 272, 278
(2011).
33

information concerning the adjudication of employee grievances or disciplinary cases

with the words records relating to the adjudication of employee grievances or
disciplinary cases. Compare 5 ILCS 140/7(1)(u) (West 2008), App. A271, with 5 ILCS
140/7(1)(n), App. A282. As Federal District Judge Lefkow found, [T]here is no basis to
conclude that this amendment, enacted approximately one month after Gekas was
decided, was an effort to broaden the scope of the adjudication exemption for public
employees, and certainly not to exempt CR register documents. R. 2312, Rangel v. City
of Chicago, No. 10 C 2750, 2010 WL 3699991, at *3 (N.D. Ill. Sept. 13, 2010).20
In fact, the amendments were intended to close loopholes and strengthen FOIA,
not to shield previously public CRs from disclosure. Id. Attorney General Lisa Madigan
proposed the amendments to combat abuse by government officials and increase public
access to government documents. Id. (citing Ryan Keith, Attorney general releases new
FOIA rewrite, The State Journal-Register, May 27, 2009, http://www.sjr.com/breaking/x124601484/Attorney-general-releases-new-FOIA-rewrite). The public
record makes clear that the legislature had no intention, in its trivial change to the

20

In rejecting the Citys argument that amended Section 7(1)(n) exempted Chicago
police CRs, Judge William Hibbler also expressly ruled that the 2010 FOIA
amendments do not materially change the provision regarding disciplinary proceedings
that was in effect at the time of the Gekas ruling. R. 2316, Fuller v. City of Chicago, No.
09 C 1672, 2009 U.S. Dist. LEXIS 125727, at *2 (N.D. Ill. Nov. 10, 2009). See also App.
A400, Martinez v. City of Chicago, No. 09 C 5938, 2012 WL 1655953, at *2 n. 2 (N.D.
Ill. May 10, 2012) (The fact that the amended statute merely restates an existing
exemption in slightly different language tends to undercut the inference that the Illinois
General Assembly was responding to Gekas.); App. A398, Clark v. City of Chicago, No.
10 C 1803, 2010 WL 3419464, at *2 (N.D.Ill. Aug. 25, 2010) (holding that the City
failed to show why CRs should be considered adjudications); R.Supp. 70, Henry v.
Centeno, No. 10 C 6364, 2011 WL 3796749, at *4 (N.D. Ill. Aug. 23, 2011) (finding that
the reasoning in Gekas remains persuasive after the 2010 amendments and holding that
there is no legitimate privacy interest at stake in police officers performance of their
public duties).
34

language of the exemption, of taking the grave step of overruling this Courts decision in
Gekas and thereby withholding records related to police misconduct complaints from the
public.
B.

2010 FOIA Exempts Adjudications of Employee Grievances and

Disciplinary Proceedings, Not Police Misconduct Investigations

CRs are investigations of police misconduct complaints, not adjudications of

employee grievances or disciplinary cases. When a member of the public files a
complaint against a police officer, either the Independent Police Review Authority
(IPRA) or the Chicago Police Departments Internal Affairs Division (IAD) is charged
with investigating that complaint. These bodies generate CRs in the course of their
investigations. Neither IPRA nor IAD conduct adjudications.21
Federal Judge Maria Valdez recognized that the plain language of the Citys own
publication makes it clear that the information contained in CR files relates to the
investigation of a complaint and that the adjudication of the complaint occurs after the
IPRA has issued its finding. The CR files do not reveal an adjudicatory process, and the
fact that the files may ultimately be relevant in a later adjudication does not put them
within the FOIA exemption. R. 1149, Macias, No. 09 C 1240, at *2-3. See also R. 1114,
Christian v. City of Springfield, No. 2010 MR 461 (Sangamon Cnty. Cir. Ct. June 3,
2011) (Section 7(1)(n) does not exempt records generated in the course of an

21

See R. 1149, Macias v. City of Chicago, No. 09 C 1240, dkt. 62, at *2 (N.D.Ill. March
10, 2010) (quoting Chicago Police Board, Allegations of Police Misconduct: A Guide to
the Complaint and Disciplinary Process (August 2009)) (The Independent Police
Review Authority (IPRA), the Police Department, and the Police Board have different
roles. The responsibility to receive complaints rests with IPRA. Depending on the nature
of the allegations, either IPRA or the Police Department will investigate the Complaint.
The Police Boards role is to adjudicate the complaints--it is similar to a court.).
35

investigation into police misconduct; adjudication does not begin until after the
investigation is complete).
The circuit courts decision also flatly contradicts the opinion of the Illinois
Attorney General, the official whom the Illinois legislature authorized, pursuant to the
2010 FOIA amendments, to issue opinions to public bodies on FOIA compliance. In an
advisory opinion to the Chicago Police Department, the Attorney General expressly
found that amended Section 7(1)(n) does not protect CRs. App. A412, 2010 PAC 6246
(Sept. 8, 2011). The Attorney General explained that exemption 7(1)(n) does not apply to
investigations of police misconduct because they are a public bodys own internal
investigation into an allegation of misconduct as opposed to an adjudication. Id. As a
result, the Attorney General ordered the Chicago Police Department to produce the
requested CRs. Id.
Indeed, the Attorney General, as the top law enforcement official in Illinois,
published a FOIA Guide to Law Enforcement, which explains that [r]ecords that were
generated independent of an adjudication, such as a public bodys own internal
investigation into an allegation of misconduct, would not fall within the scope of section
7(1)(n). App. A427, Guide at 13 (2012) (emphasis added). In addition, [c]omplaints
and the names of the officers contained in those complaints cannot be said to have been
generated specifically for the purposes of an actual adjudication. Id. The Attorney
General thus makes it abundantly clear that CRs are investigations, not adjudications, and
are consequently not covered by FOIA exemption 7(1)(n).
In addition, the circuit courts expansive reading of the adjudicatory exemption
violates its obligation to construe exemptions to FOIA narrowly. The circuit court, citing

36

the opinions of three federal judges, broadly construed the adjudicatory exemption to
hold that CRs relate to adjudications that occur later, because the Police Board relies on
CRs in adjudicating discipline. R.2139.22 The Supreme Court, however, emphasized that
FOIA expressly contemplates full and complete disclosure of the affairs of
government and recognizes that such disclosure is necessary to enable the people to
fulfill their duties to monitor government. Stern, 233 Ill.2d at 410-11 (quoting 5 ILCS
140/1 (West 2006)). To that end, FOIA is to be accorded liberal construction, and the
statutory exemptions must be read narrowly. Id. (internal citations omitted).
Under the circuit courts logic, any document used by the Police Board in a
disciplinary adjudication would be exempt. Just as the placement of an otherwise public
document in an officers personnel file does not magically exempt it under the personnel
file exemption, the Chicago Police Boards consideration of CRs, documents that this
Court have held to be public under FOIA, does not exempt CRs under FOIAs
adjudicatory exemption. Id. at 412; Watkins v. McCarthy, 2012 IL App (1st) 100632, 24
(holding that the placement of CRs in otherwise exempt personnel files would not make
them exempt from disclosure).23

22

None of the federal courts to which the circuit court cites explains how their broad
reading of the adjudicatory exemption squares with the reasoning of the Attorney General
or with the Illinois Legislatures mandate to narrowly construe FOIAs exemptions. See
R. 2027, Alva v. City of Chicago, No. 08 C 6261, dkt. 80 (N.D.Ill. Apr. 16, 2010); R.
2031, Bell v. City of Chicago, No. 08 C 0754, 2010 WL 753297, at *2-3 (N.D.Ill. Feb.
26, 2010); R. 2039, Livingston v. McDevitt, No. 09 C 7725, dkt. 23, at *2-3 (N.D. Ill.
May 10, 2010).
23

The circuit court committed further legal error in exempting CRs that were not
sustained. Unless the City sustains a CR in the investigatory phase, there is no later
adjudication by any body. Even under the broadest possible reading of the adjudicatory
exemption in Section 7(1)(n), it is inconceivable that an unsustained CR could ever
relate to a later Police Board adjudication that never occurs. See R. 1238, Vasquez v.
37

VI.

Section 7(1)(a) and Section 7(1)(f) of FOIA Do Not Apply to CRs

Because the circuit court found that the requested CRs were exempt under Section

7(1)(b) of the 2009 version of FOIA and 7(1)(n) of the 2010 version of FOIA, it did not
reach the merits of Defendants arguments that additional exemptions apply. Defendants
argued that Section 7(1)(a), which exempts [i]nformation specifically prohibited from
disclosure by federal or State law, and Section 7(1)(f), which exempts [p]reliminary
drafts, notes, recommendations, memoranda and other records in which opinions are
expressed, or policies or actions are formulated, both apply to the CRs at issue here. 5
ILCS 140/7(1)(a), (f). Plaintiff anticipates that Defendants will raise these arguments in
the context of the present cross-appeals, and therefore addresses them here.24
A.

The Illinois Personnel Record Review Act Does Not Shield CRs from
Disclosure

During summary judgment briefing, Defendants incorrectly claimed that the

requested CRs are exempt under Section 7(1)(a), which covers [i]nformation
specifically prohibited from disclosure by federal or State law, because CRs constitute
records of disciplinary action under the Illinois Personnel Record Review Act (PRRA)
820 ILCS 40/0.01 et seq., and therefore are protected from release under Section 8 of that
Parker, No. 09 C 4529, at *11 (N.D.Ill. 2010) (transcript) (J. Schenkier) (holding that if
the CR was not sustained, then there was no adjudication, so the CR cannot relate to an
adjudication, and thus must be disclosed); R. 1157, Parra v. City of Chicago, No. 09 C
4067, dkt. 82, at *2-3 (N.D.Ill. Apr. 14, 2010) (same).
24

A reviewing court may consider an issue not raised in the trial court if the issue is one
of law and is fully briefed and argued by the parties. Committee for Educational Rights
v. Edgar, 174 Ill.2d 1, 11 (1996). See also Montes v. Mai, 398 Ill.App.3d 424, 427 (1st
Dist. 2010). It is in the interest of judicial economy for this Court to consider the Section
7(1)(a) and Section 7(1)(f) exemptions in order to avoid the possibility of a second
appeal. Furthermore, since the parties have already fully briefed the applicability of these
exemptions in their summary judgment pleadings, neither party will be prejudiced if the
Court considers these issues.
38

statute. Section 8 of the PRRA provides that an employer, before releasing personnelrelated information to a third party, shall . . . except when the release is ordered to a
party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or
other records of disciplinary action which are more than four years old. 820 ILCS 40/8
(West 2008).
The PRRA is designed to permit employees to inspect their own personnel files,
not to prevent the public from accessing information about the performance of their
public servants. See 820 ILCS 40/0.01, Historical and Statutory Notes, at 226 (SmithHurd 2008) (noting that the purpose is to allow employees to review personnel records;
to provide criteria for the review; to prescribe the information which may be contained in
personnel records; and to provide penalties).
In Watkins v. McCarthy, this Court held that the PRRA does not exempt CRs
from disclosure in FOIA actions. Watkins, 2012 IL App (1st) 10063, 41-42. See also
Gekas, 393 Ill.App.3d at 588 (holding that citizen complaint records are not personnel
documents or records); R. 2312, Rangel v. City of Chicago, 2010 WL 3699991, at *3
(noting that [t]he Personnel Record Review Act is directed at personnel files only (not
CR register documents)). This Court recognized that the text of the PRRA itself makes
plain that it cannot serve as the basis for an exemption to disclosure under Section
7(1)(a). Watkins, 2012 IL App. (1st) 100632, 42. Section 11 of the PRRA states that
[t]his Act shall not be construed to diminish a right of access to records already
otherwise provided by law, provided that disclosure of performance evaluations under the
Freedom of Information Act shall be prohibited. 820 ILCS 40/11 (West 2008). Since
CRs are not exempted from disclosure by any other provision of FOIA, and because the

39

documents sought are not performance evaluations, the text of the PRRA itself clearly
implies that it may not serve as the basis of a Section 7(1)(a) exemption. Moreover, the
explicit reference to FOIA within Section 11 indicates that the legislature contemplated
and affirmed the fact that FOIA is one of the laws that provides a right of access to
records already otherwise provided by law, and therefore that the PRRA may not limit
any disclosure available under FOIA. See Watkins, 2012 IL App. (1st) 100632, 42.
Finally, Defendants claim that records more than four years old are exempted from
disclosure under the PRRA is clearly incorrect; the rule does not apply when disclosure is
ordered in a legal action, 820 ILCS 40/8, such as this case. See Watkins, 2012 IL App.
(1st) 100632, 43.
Therefore, if Defendants claim on appeal that the requested CRs are exempt under
Section 7(1)(a) pursuant to the PRRA, their argument should be rejected.
B.

The Preliminary Draft Exemption Does Not Apply to CRs

During summary judgment briefing, Defendants also incorrectly claimed that the
portions of the CRs that contain recommendations to the Superintendent regarding
whether an officer should be disciplined because of his actions are exempt under Section
7(1)(f), which exempts [p]reliminary drafts, notes, recommendations, memoranda and
other records in which opinions are expressed, or policies or actions are formulated.
R. 764; 5 ILCS 140/7(1)(f).
Section 7(1)(f) has been held to be the equivalent of the federal deliberative
process exemption, which applies to predecisional materials used by a public body in its
deliberative process. Day v. City of Chicago, 388 Ill.App.3d 70, 79 (1st Dist. 2009)
(internal citations omitted). The deliberative process exemption of Illinois FOIA is
intended to protect frank and open debate as public officials formulate policy. See, e.g.,
40

Harwood v. McDonough, 344 Ill.App.3d 242, 248 (1st Dist. 2003) (citing the deliberative
process exemption in the federal version of FOIA). The exemption protects opinions and
analyses formulated by public officials as they draft government policy, but does not
protect factual material. See Day, 388 Ill.App.3d at 79. Nor does the privilege protect
final agency decisions. See Enviro Tech Intl v. U.S. E.P.A., 371 F.3d 370, 374 (7th Cir.
2004).
CRs contain a citizens factual allegations of official police misconduct, the Citys
account of its factual investigation into the charges, and the final disciplinary
recommendations of the City agencies responsible for the investigations. R. 62, Defs.
Answer 18. During summary judgment briefing, Defendants did not even attempt to
argue that the requested CRs contain the sort of opinions, analyses or policy formulations
that are exempt under Section 7(1)(f). Instead, Defendants argued that because the
documents have been created so that IPRA and IAD may make recommendations to the
Superintendent regarding whether an officer should be disciplined because of his
actions, they are recommendation documents. R. 765.
But these recommendation documents are not the sort of material the
deliberative process exemption was designed to protect. Disclosing them does not expose
City officials internal workings, jeopardize the frank exchange of opinions among
agency staff members, or compromise the agencys decision-making process. Nor do
CRs reflect deliberations over agency policy. See, e.g., Pub. Citizen v. Office of Mgmt.
and Budget, 598 F.3d 865, 876 (D.C. Cir. 2010) (Only those portions of a predecisional
document that reflect the give and take of the deliberative process may be withheld.).
For these reasons, the preliminary draft exemption does not apply to CRs.

41

C.

Even if the Preliminary Draft Exemption Applies to Portions of

CRs, it Only Applies to Preliminary Recommended Findings

The bulk of CRs are comprised of the factual investigations of charges of police
misconduct lodged by members of the public. R. 62, Defs. Answer 18. Following the
factual investigation, the investigating officer issues an investigative and, if appropriate,
disciplinary recommendation, which is then reviewed by police command, resulting in a
final finding (e.g., sustained, not sustained, unfounded, exonerated). Even if this Court
were to find that Section 7(1)(f) applies to CRs, it would at most apply to investigators
and police supervisors recommended findings, and not to the complaints, the substance
of the factual investigations, or the final outcome of the complaints. Factual information
is not exempt from disclosure simply by virtue of its location in a document that also
contains exempted predecisional material. See Day, 388 Ill.App.3d at 79; 5 ILCS 140/8
(West 2008) (holding that where an exempt public record contains material which is
nonexempt, the public body shall delete the information which is exempt and make the
remaining material available for inspection and copying.). Complaints, the substance of
factual investigations, and the final outcome of the complaints could not be in any way
considered preliminary drafts that are exempted from disclosure. See Watkins, 2012 IL
App (1st) 100632, 38 (holding that an in camera inspection was necessary to determine
whether Section 7(1)(f) applied because the information provided by the defendant does
not allow for adequate adversarial testing of defendants premise that the exemption
applies to the requested documents as a whole, and certainly does not justify the
withholding of the entire CR file).

42

VII.

The Circuit Court Erred in Denying Mr. Kalven Attorneys Fees for Time
Reasonably Expended in his Successful Pursuit of the Repeater Lists
The Illinois Freedom of Information Act provides that plaintiffs in actions to

compel the disclosure of public records to which they were initially denied access are
entitled to reasonable attorneys fees and costs for their successful work. 5 ILCS
140/11(i) (West 2008). The Illinois Supreme Court has recognized that FOIAs attorneys
fees provision is integral to accomplishing the aims of the Act: Its purpose, largely, is to
prevent the sometimes insurmountable barriers presented by attorneys fees from
hindering an individuals request for information and from enabling the government to
escape compliance with the law. Duncan Pub., Inc. v. City of Chicago, 304 Ill.App.3d
778, 786 (1st Dist. 1999).
After Defendants denied his FOIA request, Mr. Kalven brought this suit. After
three years of litigation, he achieved real success: the circuit court granted partial
summary judgment in his favor and ordered Defendants to produce the Repeater Lists of
police officers who accumulated the most complaints of official misconduct in Chicago.
The circuit court, however, declined to award Mr. Kalven attorneys fees. It erroneously
held that because Mr. Kalven lost other claims for disclosure of requested CRs, he did not
substantially prevail under the FOIA attorneys fees provision. R. 2117; 5 ILCS
140/11(i) (West 2008). Although Mr. Kalven has not yet succeeded in winning access to
the CRs, he substantially prevailed on his claims that the Defendants wrongfully
withheld the Repeater Lists.
As explained below, the circuit court committed two legal errors in denying Mr.
Kalven an award of reasonable fees for his successful work on the Repeater Lists: (1) the
court failed to apply the controlling test for determining whether Mr. Kalven substantially
43

prevailed and was entitled to fees; and (2) the court failed to recognize that the fact that
Mr. Kalven was denied the CRs is not relevant to the determination of whether he is
owed attorneys fees for his successful work on the Lists.
The circuit courts denial of fees requires this Court to interpret the FOIA fees
provision de novo. In re Marriage of Murphy, 203 Ill.2d 212, 218-19 (2003). The
primary issue, whether plaintiff is a prevailing party for purposes of the fee-shifting
statute, is one of statutory construction. Melton v. Frigidaire, 346 Ill.App.3d 331, 33435 (1st Dist. 2004) (internal citations omitted). Construction of a statute is a purely legal
question, appropriately subject to de novo review. Id.
In certain decisions concerning attorneys fees under FOIA, courts have applied
an abuse of discretion standard. That standard is inapplicable here, however, because the
circuit courts decision on fees implicated no factual dispute. See Melton, 346 Ill.App.3d
at 334-35. Below, the court simply interpreted the substantially prevail language of the
fee provision. See R. 2117, 2425. Because it rests on a question of statutory construction,
the lower courts determination demands de novo review by this Court. Melton, 346
Ill.App.3d at 334-35.
A.

Mr. Kalven Substantially Prevailed in his FOIA Claims for the

Repeater Lists

The circuit court committed an error of law when it denied Mr. Kalven attorneys
fees for his successful work in pursuit of the Repeater Lists. The applicable attorneys
fees provision, Section 11(i) of the 2009 Illinois FOIA, authorizes the award of
reasonable attorneys fees to a plaintiff who substantially prevails under FOIA. See 5
ILCS 140/11(i) (West 2008). Because Mr. Kalvens suit was necessary to obtain the
information and because the suit altered the legal relationship between the parties, it is
44

clear that Mr. Kalven is entitled to attorneys fees for his successful work in compelling
the disclosure of the Repeater Lists.
The proper inquiry into whether an Illinois FOIA plaintiff has substantially
prevail[ed] is whether the filing of suit was reasonably necessary to obtain the
information and a causal nexus exists between the action and the agencys surrender of
the information. Duncan Pub., Inc., 304 Ill.App.3d at 786. The inquiry is primarily a
question of causation, which may be answered by the agencys conduct in processing the
request. Id. at 787. See also People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193, 202 (1st
Dist. 1997) (In order to demonstrate that he substantially prevailed, the party requesting
fees must demonstrate (1) that the prosecution of the action could reasonably be
regarded as necessary to obtain the information, and (2) that the action had a substantial
causative effect on the delivery of information.) (citations omitted).
In interpreting substantially prevail, Illinois courts also look to federal cases
that interpret the analogous fee provision in the federal FOIA. See Ulrich, 294 Ill.App.3d
at 201-02. The federal case law instructs that it is clear that a court order requiring a
recalcitrant agency to release documents pursuant to the legal mandate of FOIA is
sufficient to render the plaintiff a prevailing party. Campaign for Responsible
Transplantation v. Food & Drug Admin., 511 F.3d 187, 195 (D.C. Cir. 2007).25
Mr. Kalvens lawsuit was necessary to obtain the Repeater Lists. Defendants
refused to produce the lists, both in response to Mr. Kalvens FOIA requests and
throughout this litigation. The circuit courts decision mandating release of the Repeater

25

Courts have consistently found that the substantially prevail language of FOIA is the
functional equivalent of the prevailing party language found in other fee shifting
statutes. See, e.g., Edmonds v. FBI, 417 F.3d 1319, 1327 (D.C. Cir. 2005).
45

Lists clearly makes Mr. Kalven a prevailing partyone who substantially prevailed
for the purposes of FOIA.
B.

The Circuit Courts Denial of CRs Does Not Justify its Refusal to
Award Fees for Mr. Kalvens Successful Work Winning the Repeater
Lists

The circuit court committed an error of law in confusing Mr. Kalvens degree of
success with his status as a prevailing party. The court erroneously held: Plaintiff lost on
his main request for the CRs. Prevailing on the smallest portion of his action is not
substantially prevailing. R. 2425. As a preliminary matter, the Repeater Lists were not,
as the circuit court characterized, a small portion of this lawsuit. Rather, as one of two
types of public information sought, the right to disclosure of the Repeater Lists
represented fully half of Mr. Kalvens action. Winning production of the Lists was no
minor victory for Mr. Kalven or the public. The strength of the public interest in this
information, the identities of officers charged with the most abuse in Chicago, was
highlighted by front page articles; editorials calling for public release of the Lists; amicus
briefs of major national media organizations before the Seventh Circuit Court of Appeals
who joined Mr. Kalvens request for public release; and the intervention in Bond by a
majority of the City Council urging release of the lists. See R. 1289, Kalven Aff. at 3236.
But more fundamentally, the degree of Mr. Kalvens success is relevant to the
size of a reasonable fee, not to his eligibility for a fee award as a prevailing party. Texas
Teachers Assn v. Garland Independent School Dist., 489 U.S. 782, 793 (1989). The
Supreme Court emphasized: The touchstone of the prevailing party inquiry must be the
material alteration of the legal relationship of the parties in a manner which Congress

46

sought to promote in the fee statute. Where such a change has occurred, the degree of the
plaintiffs overall success goes to the reasonableness of the award . . . not to the
availability of a fee award vel non. Id. at 792-793. Where a plaintiff achieves partial
success, he is entitled to compensation for all hours reasonably expended in pursuit of the
claims in which he prevailed. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
It is beyond dispute that when Mr. Kalven won his claim for the Repeater Lists,
he materially altered the legal relationship between himself and Defendants. Irrespective
of the ultimate outcome of Mr. Kalvens claims to access to the CRs (which are the
subject of this appeal), he is entitled to compensation for all hours reasonably expended
winning the Repeater Lists. Id. The circuit court committed a legal error in denying Mr.
Kalven fees for his successful claims to the Lists.
The Federal Court of Appeals reversal of a trial courts similar mistake in
Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005) is particularly instructive here. The
plaintiff in Edmonds won partial summary judgment on her FOIA complaint seeking that
the FBI expedite the disclosure of requested documents. The FBI subsequently released
343 pages, but withheld an additional 1,143 pages that were also responsive to the
plaintiffs FOIA request. Id. at 1321. The FBI moved for summary judgment, asserting
that the remaining pages were exempt from disclosure. The district court granted
summary judgment to the FBI on all but three of the additional 1,143 pages. Id. Edmonds
then filed for attorneys fees relating to the partial summary judgment in her favor and
the three additional pages that were disclosed. The district court denied her motion and
the plaintiff appealed. Id.

47

The D.C. Circuit held that the district courts granting of partial summary
judgment in Edmonds favor expediting the production of the documents was a
judicially sanctioned change in the legal relationship of the parties. Id. at 1322-23. As a
result, the Court of Appeals reversed the District Courts ruling that Edmonds had not
substantially prevailed. By winning some relief, Ms. Edmonds substantially prevailed in
her FOIA action, making her eligible for an award of attorneys fees. Id. at 1325-26.
Similarly, in Mayock v. I.N.S., 736 F.Supp. 1561 (N.D. Cal. 1990), the district
court awarded the plaintiff attorneys fees for all hours reasonably spent in the FOIA case
even though he did not prevail on three of his claims. Id. at 1563, 1565. The court found
that the statute did not require complete success in order to substantially prevail, and
the fact that some claims were not granted did not change the fact that plaintiff had
substantially prevailed on other claims. Id. at 1563-64.26
As in each of the cases above, Mr. Kalven won real relief, resulting in a
judicially sanctioned change in the legal relationship of the parties. Edmonds, 417 F.3d
at 1322. He achieved complete success on his claim that the Defendants wrongfully
denied the Repeater Lists. His lack of success in the circuit court on his distinct claim for
CRs provides no legal justification for the circuit courts denial of fees for his successful
work winning access to the Repeater Lists.

26

See also American Civil Liberties Union v. U.S. Dept. of Homeland Sec., 810
F.Supp.2d 267, 273-75, 81 (D.D.C. 2011) (granting attorneys fees to plaintiff based on
defendants production of certain documents, even though court had granted partial
summary judgment to defendants because most of the documents still retained by the
defendants were exempt from disclosure); Elec. Privacy Info. Ctr. vs. U.S. Dept. of
Homeland Sec., 811 F.Supp.2d 216, 222-23, 232-33 (D.D.C. 2011) (FOIA plaintiff
substantially prevailed for purposes of attorneys fees where DHS turned over some
documents but where the court granted summary judgment to defendant, blocking the
release of thousands of documents).
48

--Mr. Kalvens attorneys devoted a substantial amount of time, all without

compensation, to advance the public interest here. Without access to reasonable
attorneys fees and costs, journalists and other members of the public would lack access
to competent counsel to protect our core democratic principles for which the Illinois
Freedom of Information Act was enacted. 5 ILCS 140/1 (West 2008). The circuit court
erred in denying Mr. Kalven fees for compelling the disclosure of the Repeater Lists.

49

CONCLUSION
Mr. Kalven seeks information that is quintessentially in the public interest:
information that concerns the public duties of public officials, and the ways in which
allegations of official misconduct are handled. In granting summary judgment against
Mr. Kalven with respect to the CRs and denying Mr. Kalven attorneys fees, the circuit
court misapplied the law. For the foregoing reasons, Mr. Kalven respectfully requests that
this Court reverse the circuit courts entry of partial summary judgment against Mr.
Kalven, reverse the courts denial of fees, and order the circuit court to: (1) enter
summary judgment in Mr. Kalvens favor, and (2) award Mr. Kalven attorneys fees for
all reasonable work performed in this case.
Respectfully submitted,
____________________________________
One of Plaintiffs Attorneys

Craig B. Futterman
Saul Cohen, Law Student
Italia Patti, Law Student
EDWARD F. MANDEL LEGAL AID CLINIC
University of Chicago Law School
6020 S. University Ave.
Chicago, IL 60637
(773) 702-9611
Attorney # 91074

50

Jon Loevy
Samantha Liskow
Pier Petersen
LOEVY AND LOEVY
312 N. May St.
Chicago, IL 60607
(312) 243-5900
Attorney # 41295
G. Flint Taylor
Ben H. Elson
PEOPLES LAW OFFICE
1180 N. Milwaukee Ave.
Chicago, IL 60642
(773) 235-0070
Attorney # 91330

12-1846 & 12-1917

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JAMIE KALVEN,
Plaintiff-Appellant, CrossAppellee
v.
THE CITY OF CHICAGO and
THE CHICAGO POLICE
DEPARTMENT,
Defendants-Appellees, CrossAppellants.

)
)
)
)
)
)
)
)
)
)
)
)
)

On appeal from the Circuit Court of

Cook County, Chancery Division.
Appeal Nos. 12-1846 & 12-1917.
Circuit Court No. 09 CH 51396.
Honorable Neil H. Cohen, Judge
Presiding.

CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rules 341(a) and (b). The
length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule
341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance,
the certificate of service, and those matters to be appended to the brief under Rule 342(a),
is 50 pages.

____________________________________
One of Plaintiffs Attorneys

12-1846 & 12-1917

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JAMIE KALVEN,
Plaintiff-Appellant, CrossAppellee
v.
THE CITY OF CHICAGO and
THE CHICAGO POLICE
DEPARTMENT,
Defendants-Appellees, CrossAppellants.

)
)
)
)
)
)
)
)
)
)
)
)
)

On appeal from the Circuit Court of

Cook County, Chancery Division.
Appeal Nos. 12-1846 & 12-1917.
Circuit Court No. 09 CH 51396.
Honorable Neil H. Cohen, Judge
Presiding.

PROOF OF SERVICE
TO:

Justin A. Houppert
City of Chicago Corporation Counsel
30 N. LaSalle, Suite 800
Chicago, IL 60602

You are hereby notified that on January 28, 2013, we hand delivered nine copies
of the Brief and Argument in the above-entitled cause to the Clerk of the above Court,
and delivered by messenger three copies to the City of Chicago Corporation
Counsel, at the above address.

____________________________________
One of Plaintiffs Attorneys

12-1846 & 12-1917

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JAMIE KALVEN,
Plaintiff-Appellant, CrossAppellee
v.
THE CITY OF CHICAGO and
THE CHICAGO POLICE
DEPARTMENT,
Defendants-Appellees,
Cross-Appellants.

)
)
)
)
)
)
)
)
)
)
)
)

On appeal from the Circuit Court of

Cook County, Chancery Division.
Appeal Nos. 12-1846 & 12-1917.
Circuit Court No. 09 CH 51396.
Honorable Neil H. Cohen,
Presiding.

JOINT RESPONSE AND REPLY BRIEF FOR PLAINTIFF-APPELLANT,

CROSS-APPELLEE
AND SUPPLEMENTAL APPENDIX
Craig B. Futterman
Saul Cohen, Senior Law Student
Italia Patti, Senior Law Student
MANDEL LEGAL AID
CLINIC
University of Chicago Law School
6020 S. University Ave.
Chicago, IL 60637
(773) 702-9611
Attorney # 91074

Jon Loevy
Samantha Liskow
LOEVY AND LEVY
312 N. May St.
Chicago, IL 60607
(312) 243-5900
Attorney # 41295
G. Flint Taylor
Ben H. Elson
PEOPLES LAW OFFICE
1180 N. Milwaukee Ave.
Chicago, IL 60642
(773) 235-0070
Attorney # 91330

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS
POINTS AND AUTHORITIES ........................................................................................ iii
ISSUES PRESENTED FOR REVIEW .............................................................................. 1
STATEMENT OF FACTS ................................................................................................. 1
ARGUMENT ...................................................................................................................... 2
I.

The Circuit Court Erred in Denying That Defendants Must Produce the CRs ....... 3
A.

II.

The Circuit Court Improperly Applied the 2010 Version of FOIA to This
Case Retroactively ...................................................................................... 3
1.

The General Assembly Clearly Indicated its Intent that the 2010
Amendments to FOIA Must Not Apply Retroactively ................... 4

2.

The Application of the 2010 Version of FOIA to Mr. Kalvens

FOIA Request Would Be the Retroactive Application of That Law
......................................................................................................... 8

B.

CRs Are Not Exempt Under Section 7(1)(b) of the 2009 Version of FOIA
................................................................................................................... 10

C.

Section 7(1)(n)s Adjudicatory Exemption Does not Exempt CRs .......... 11

1.

The General Assemblys Substitution of the Words Related to

for the Word Concerning in FOIAs Adjudicatory Exemption did
not Newly Exempt Investigations of Citizen Complaints of Police
Misconduct .................................................................................... 13

2.

The Attorney General Correctly Found that 2010 FOIA Exempts

Adjudications of Employee Grievances and Disciplinary Cases,
Not Police Misconduct Investigations .......................................... 17

D.

The Deliberative Process Exemption Does Not Apply to CRs................. 25

E.

Redacting the Requested CRs Would Not Be Unduly Burdensome ........ 27

1.

Defendants Overstate the Time Necessary to Redact the CRs ..... 27

2.

The Substantial Public Interest Outweighs the Burden Associated

With Redacting the CRs................................................................ 31

The Circuit Court Correctly Ruled that Defendants Must Produce the Repeater
Lists ....................................................................................................................... 33
A.

The Repeater Lists are the CPDs Public Records.................................... 35

B.

Defendants are Not Relieved of Their Duty to Disclose the Repeater Lists
Because They Were Subject to Protective Orders in Federal Litigation .. 37
1.

The Federal Court of Appeals Made Clear that the Civil Protective
Orders Cited by Defendants Do Not Prevent Production of the
Repeater Lists Under FOIA .......................................................... 37
i

2.
C.

III.

FOIA Does Not Exempt Documents Produced Under a Protective

Order From Production ................................................................. 42

Defendants Waived the Argument that Section 7(1)(n) Applies to the

Repeater Lists............................................................................................ 43
1.

The Circuit Courts Finding of Waiver is Reviewed for Abuse of

Discretion ...................................................................................... 44

2.

Prior to their Motion to Reconsider, Defendants Never Made the

Argument that Section 7(1)(n) Applies to the Repeater Lists....... 46

3.

The Circuit Court Did Not Abuse its Discretion in Refusing to

Consider Arguments that Defendants had Waived ....................... 49

D.

2010s Substantive FOIA Amendments Creating Exemption 7(1)(n) may

not be Applied Retroactively in this Case to Repeater Lists .................... 51

E.

Repeater Lists Have No Relation to the Citys Adjudication of Employee

Grievances or Discipline and Thus Cannot Be Exempt Under Section
7(1)(n) ....................................................................................................... 51

F.

Neither Section 7(1)(f) Nor Section 7(1)(b) Apply to the Repeater Lists 54

Mr. Kalven is Entitled to Attorneys Fees for the Successful Pursuit of CPD
Records ................................................................................................................. 55
A.

The Circuit Courts Denial of Attorneys Fees Should Be Reviewed De

Novo .......................................................................................................... 55

B.

Mr. Kalven Has Substantially Prevailed and Is Consequently Entitled to

Attorneys Fees ......................................................................................... 56

CONCLUSION ................................................................................................................. 60

ii

POINTS AND AUTHORITIES

ARGUMENT ..................................................................................................................... 2
5 ILCS 140/1 ............................................................................................................2
I.

The Circuit Court Erred in Denying That Defendants Must Produce the CRs
................................................................................................................................. 3
A.

The Circuit Court Improperly Applied the 2010 Version of FOIA to

This Case Retroactively ............................................................................ 3
Commonwealth Edison v. Will County Collector, 196 Ill.2d 27 (2001) ......3
Caveney v. Bower, 207 Ill.2d 82 (2003) ......................................................3
1.

The General Assembly Clearly Indicated its Intent that the

2010 Amendments to FOIA Must Not Apply Retroactively ..... 4
Allegis Realty Investors v. Novak, 223 Ill.2d 318 (2006) ................4
General Motors v. Pappas, 242 Ill.2d 163 (2011) ...........................4
People v. Brown, 225 Ill.2d 188 (2007) ...........................................4
People v. Martinez, 386 Ill.App.3d 153 (1st Dist. 2008) .................4
People v. Blanks, 361 Ill.App.3d 400 (1st Dist. 2005) ....................4
5 ILCS 140/11(i) ..............................................................................5
Callinan v. Prisoner Review Board, 371 Ill.App.3d 272 (3d Dist.
2007) ................................................................................................5
Deicke Ctr. v. Illinois Health Facilities Planning Bd., 389
Ill.App.3d 300 (1st Dist. 2009) ........................................................5
5 ILCS 70/4 ......................................................................................5
Connell v. Crosby, 210 Ill. 380 (1904) ............................................5
Caveney v. Bower, 207 Ill.2d 82 (2003) ......................................5, 7
Landgraf v. USI Film Products, 511 U.S. 244 (1994) .................6, 7
Shoreline Towers v. Condominium Assn v. Gassman, 404
Ill.App.3d 1013 (1st Dist. 2010) ......................................................7

iii

2.

The Application of the 2010 Version of FOIA to Mr. Kalvens

FOIA Request Would Be the Retroactive Application of That
Law ................................................................................................. 8
City of Chicago v. U.S. Dept of Treasury, Bureau of Alcohol,
Tobacco & Firearms, 423 F.3d 777 (7th Cir. 2005) ........................8
Caveney v. Bower, 207 Ill.2d 82 (2003) ......................................8, 9
Landgraf v. USI Film Products, 511 U.S. 244 (1994) .................8, 9
Commonwealth Edison v. Will County Collector, 196 Ill.2d 27
(2001) ...............................................................................................9
Allegis Realty Investors v. Novak, 223 Ill.2d 318 (2006) ................9

B.

CRs Are Not Exempt Under Section 7(1)(b) of the 2009 Version of
FOIA......................................................................................................... 10
Watkins v. McCarthy, 2012 IL App (1st) 100632 ................................10, 11
Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009) ........................10
5 ILCS 140/7(1)(b) ....................................................................................10
Copley Press, Inc. v. Board of Education, 359 Ill.App.3d 321 (3d Dist.
2005) ..........................................................................................................10

C.

Section 7(1)(n)s Adjudicatory Exemption Does not Exempt CRs ..... 11

5 ILCS 140/7(1)(n) ........................................................................11, 12, 13
California Div. of Labor Standards Enforcement v. Dillingham Const.,
N.A., Inc., 519 U.S. 316 (1997)..................................................................12
1.

The General Assemblys Substitution of the Words Related

to for the Word Concerning in FOIAs Adjudicatory
Exemption did not Newly Exempt Investigations of Citizen
Complaints of Police Misconduct .............................................. 13
5 ILCS 140/7(1)(n) ................................................13, 14, 15, 16, 17
5 ILCS 140/7(1)(u) (West 2008)..............................................13, 14
5 ILCS 140/7(1)(j) .........................................................................13
concerning, Merriam-Webster Online Dictionary, available at
http://www.merriam-webster.com/dictionary/concerning (last
visited Aug. 19, 2013) ....................................................................14
iv

Bloomberg, L.P. v. United States Food & Drug Admin., 500

F.Supp.2d 371 (S.D.N.Y. 2007) ....................................................14
5 ILCS 140/7(1)(p) ........................................................................14
Gekas v. Williamson, 393 Ill.App.3d 573 (4th Dist. 2009) ............15
The Lily Ledbetter Fair Pay Act of 2009, Pub. L. 111-2, 123 Stat. 5
........................................................................................................15
Alison K. Hayden, Two Cheers for the New Illinois Freedom of
Information Act, 98 Ill. B.J. 82 (2010)...........................................15
Katherine E. Licup, Foley & Lardner LLP, Amended FOIA to Take
Effect on January 1, 2010, available at http://bit.ly/XSmxib ........15
Harvel v. City of Johnston City, 146 Ill.2d 277 (1992)..................16
S.B. 2978, 96th Gen. Assem. (Ill. 2010) ........................................16
Kitchen v. Burge, No. 10 C 4093, dkt. 191 (N.D. Ill. Aug. 1, 2011),
........................................................................................................16
Office of the Attorney General of Illinois, Public Access Opinion
13-011, 2013 PAC 23559 ..............................................................17
Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991
(N.D. Ill. Sept. 13, 2010) ...............................................................17
2.

The Attorney General Correctly Found that 2010 FOIA

Exempts Adjudications of Employee Grievances and
Disciplinary Cases, Not Police Misconduct Investigations ...... 17
Kitchen v. Burge, No. 10 C 4093, dkt. 191 (N.D. Ill. Aug. 1, 2011)
........................................................................................................18
Macias v. City of Chicago, No. 09 C 1240, dkt. 62 (N.D.Ill. Mar.
10, 2010) ........................................................................................18
Chicago Police Board, Allegations of Police Misconduct: A Guide
to the Complaint and Disciplinary Process (August 2009) ...........18
Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill.2d
396 (2009) ................................................................................18, 24
5 ILCS 140/7(1)(n) ....................................19, 20, 21, 22, 23, 24, 25
Office of the Attorney General of Illinois, Public Access Opinion,
2010 PAC 6246 (Sept. 8, 2011) .....................................................19
v

Christian v. Springfield, No. 2011 MR 633 (Sangamon Cnty. Cir.

Ct. July 12, 2013) .....................................................................19, 22
5 ILCS 140/9.5 ...............................................................................19
Church v. State, 164 Ill.2d 153 (1995)...........................................19
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) .......................................................................19
Ryan Keith, Attorney general releases new FOIA rewrite, The
State Journal-Register (May 27, 2009), available at http://www.sjr.com/breaking/x124601484/Attorney-general-releases-new-FOIArewrite. ...........................................................................................19
Office of the Attorney General of Illinois, Public Access Opinion
13-011, 2013 PAC 23559 ............................................19, 20, 21, 25
Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991
(N.D. Ill. Sept. 13, 2010) .........................................................20, 23
5 ILCS 140/1 ............................................................................20, 24
Bd. of Educ. of Cmty. Consol. Sch. Dist. No. 54 v. Spangler, 328
Ill.App.3d 747 (1st Dist. 2001) ......................................................21
California Div. of Labor Standards Enforcement v. Dillingham
Const., N.A., Inc., 519 U.S. 316 (1997) .........................................22
Craig Futterman, Melissa Mather, & Melanie Miles, The Use of
Statistical Evidence to Address Police Supervisory and
Disciplinary Practices: The Chicago Police Departments Broken
System, 1 DePaul J. for Soc. Just. 251, 265 (2008)........................23
Alva v. City of Chicago, No. 08 C 6261, dkt. 80 (N.D.Ill. Apr. 16,
2010) ..............................................................................................23
Bell v. City of Chicago, No. 08 C 0754, 2010 WL 753297 (N.D. Ill.
Feb. 26, 2010) ................................................................................23
Livingston v. McDevitt, No. 09 C 7725, dkt. 23 (N.D. Ill. May 10,
2010) ..............................................................................................23
Fuller v. City of Chicago, No. 09 C 1672, 2009 U.S. Dist. LEXIS
125727 (N.D. Ill. Nov. 10, 2009) ...................................................23
Martinez v. City of Chicago, No. 09 C 5938, 2012 WL 1655953
(N.D. Ill. May 10, 2012) ................................................................24
vi

Goff v. Teachers Retirement System, 305 Ill.App.3d 190 (5th Dist.

1999) ..............................................................................................24
Kopchar v. City of Chicago, 395 Ill.App.3d 762 (1st Dist. 2009) .24
BlueStar Energy Servs. v. Illinois Commerce Commn, 374
Ill.App.3d 990 (1st Dist. 2007) ......................................................24
Romano v. Municipal Employees Annuity and Benefit Fund of
Chicago, 402 Ill.App.3d 857 (1st Dist. 2010)................................24
Lopez v. State Liquor Control Commn, 120 Ill.App.3d 756, 765
(2nd Dist. 1983) .............................................................................24
D.

The Deliberative Process Exemption Does Not Apply to CRs ............ 25

5 ILCS 140/7(1)(f) .........................................................................25, 26, 27
Day v. City of Chicago, 388 Ill.App.3d 70 (1st Dist. 2009) ......................26
Christian v. Springfield, No. 2011 MR 633 (Sangamon Cnty. Cir. Ct. July
12, 2013) ....................................................................................................26
Bauer v. City of Chicago, 137 Ill.App.3d 228 (1st Dist. 1985) .................26

E.

Redacting the Requested CRs Would Not Be Unduly Burdensome .. 27

5 ILCS 140/3(g) .........................................................................................27
1.

Defendants Overstate the Time Necessary to Redact the CRs 27

Ill. Educ. Assn v. Ill. State Bd. of Educ., 204 Ill.2d 456 (2003).......
..................................................................................................28, 29

2.

The Substantial Public Interest Outweighs the Burden

Associated With Redacting the CRs .......................................... 31
5 ILCS 140/3(g) .............................................................................31
Natl Assn of Criminal Def. Lawyers v. Chicago Police Dept, 399
Ill.App.3d 1 (1st Dist. 2010) ..............................................31, 32, 33
Bowie v. Evanston Cmty. Consol. Sch. Dist. 65, 168 Ill.App.3d 101
(1st Dist. 1988)...............................................................................32
Doe v. Marsalis, 202 F.R.D. 233 (N.D. Ill. 2001) .........................33

vii

II.

The Circuit Court Correctly Ruled that Defendants Must Produce the
Repeater Lists ...................................................................................................... 33
Waste Mgmt., Inc. v. Intl Surplus Lines Ins. Co., 144 Ill.2d 178, 198 (1991) ......34
5 ILCS 140/7(2)(c) .................................................................................................34
5 ILCS 140/1 ..........................................................................................................34
Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill.2d 396 (2009) .34
A.

The Repeater Lists are the CPDs Public Records .............................. 35

5 ILCS 140/7(2)(c) .....................................................................................35
Pierce v. MacNeal Memorial Hospital Assn, 46 Ill.App.3d 42 (1st Dist.
1977) ..........................................................................................................36
Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill.2d 396
(2009) .........................................................................................................36
5 ILCS 140/1 ..............................................................................................37
5 ILCS 140/2 ..............................................................................................37
5 ILCS 140/5 ..............................................................................................37

B.

Defendants are Not Relieved of Their Duty to Disclose the Repeater

Lists Because They Were Subject to Protective Orders in Federal
Litigation.................................................................................................. 37
1.

The Federal Court of Appeals Made Clear that the Civil

Protective Orders Cited by Defendants Do Not Prevent
Production of the Repeater Lists Under FOIA ........................ 37
Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009). ...............37, 38, 39
Bond v. Utreras, No. 04 C 2617, 2007 WL 2003085 (N.D. Ill. July
2, 2007) ....................................................................................38, 39
Transcript of Proceedings, Moore v. City, 07 C 5908 (Mar. 9,
2009) ..............................................................................................40
Henry v. Centeno, No. 10 C 6364, 2011 WL 3796749 (N.D. Ill.
Aug. 23, 2011) .........................................................................40, 42
Sommerfield v. City of Chicago, 251 F.R.D. 353 (N.D. Ill.
2008).. ........................................................................................41
viii

Arthur R. Miller, Confidentiality, Protective Orders, and Public

Access to the Courts, 105 Harv. L. Rev. 427 (1991) .....................41
2.

FOIA Does Not Exempt Documents Produced Under a

Protective Order From Production ........................................... 42
5 ILCS 140/3(a) .............................................................................42
Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill.2d
396 (2009) ......................................................................................42
BlueStar Energy Servs. v. Illinois Commerce Commn, 374
Ill.App.3d 990 (1st Dist. 2007) ................................................42, 43
5 ILCS 140/7(1)(g) ........................................................................42

C.

Defendants Waived the Argument that Section 7(1)(n) Applies to the

Repeater Lists .......................................................................................... 43
Holzer v. Motorola Lighting, Inc., 295 Ill.App.3d 963 (1998) ..................43
People v. Teran, 376 Ill.App.3d 1 (2d Dist. 2007) ....................................43
N. River Ins. Co. v. Grinnell Mut. Reinsurance Co., 369 Ill.App.3d 563
(1st Dist. 2006)...........................................................................................43
People v. Heider, 231 Ill.2d 1 (2008) ........................................................44
1.

The Circuit Courts Finding of Waiver is Reviewed for Abuse

of Discretion ................................................................................. 44
Holzer v. Motorola Lighting, Inc., 295 Ill.App.3d 963 (1998) ......44
River Vill. I, LLC v. Cent. Ins. Companies, 396 Ill.App.3d 480 (1st
Dist. 2009)......................................................................................44
People v. Raymond, 404 Ill.App.3d 1028 (1st Dist. 2010) ............44
People v. Illgen, 145 Ill.2d 353 (1991) ..........................................44
People v. Lann, 261 Ill.App.3d 456 (1994) ...................................44
In re Marriage of Rife, 376 Ill.App.3d 1050 (2d Dist. 2007) ........45
People v. Heider, 231 Ill.2d 1 (2008) ............................................46
Kopchar v. City of Chicago, 395 Ill.App.3d 762 (5th Dist. 1999)
........................................................................................................45
ix

Nelson v. Cnty. of Kendall, 2013 IL App (2d) 120635 ..................46

2.

Prior to their Motion to Reconsider, Defendants Never Made

the Argument that Section 7(1)(n) Applies to the Repeater
Lists .............................................................................................. 46
Sobczak v. Gen. Motors Corp., 373 Ill.App.3d 910 (1st Dist.
2007).. ............................................................................................48
Puffer v. Allstate Ins. Co., 675 F.3d 709 (7th Cir. 2012) ...............48
In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir.
2003). .........................................................................................48
Kensington Rock Island Ltd. Partnership v. American Eagle
Historic Partners, 921 F.2d 122 (7th Cir. 1990) ...........................48
Ill. Educ. Assn v. Ill. State Bd. of Educ., 204 Ill.2d 456 (2003)....49

3.

The Circuit Court Did Not Abuse its Discretion in Refusing to

Consider Arguments that Defendants had Waived ................. 49
People v. Lewis, 223 Ill.2d 393 (2006) ..........................................50
Graves v. N. Shore Gas Co., 98 Ill.App.3d 964 (2d Dist. 1981) ...50
People v. Raymond, 404 Ill.App.3d 1028 (1st Dist. 2010) ............50

D.

2010s Substantive FOIA Amendments Creating Exemption 7(1)(n)

may not be Applied Retroactively in this Case to Repeater Lists ...... 51
Caveney v. Bower, 207 Ill.2d 82 (2003) ....................................................51

E.

Repeater Lists Have No Relation to the Citys Adjudication of

Employee Grievances or Discipline and Thus Cannot Be Exempt
Under Section 7(1)(n) .............................................................................. 51
5 ILCS 140/7(1)(n) ..................................................................51, 52, 53, 54
Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill.2d 396
(2009) .........................................................................................................52
5 ILCS 140/1 ..............................................................................................52
Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991 (N.D. Ill.
Sept. 13, 2010) ...........................................................................................52
Day v. City of Chicago, 388 Ill.App.3d 70 (1st Dist. 2009) ......................53
x

Bowie v. Evanston Cmty. Consol. Sch. Dist. 65, 168 Ill.App.3d 101 (1st
Dist. 1988)..................................................................................................53
F.

Neither Section 7(1)(f) Nor Section 7(1)(b) Apply to the Repeater Lists
................................................................................................................... 54
5 ILCS 140/7(1)(f) .....................................................................................54
5 ILCS 140/7(1)(b) ....................................................................................54
Pajic v. Old Republic Ins. Co., 394 Ill. App. 3d 1040 (1st Dist. 2009) .....54

III.

Mr. Kalven is Entitled to Attorneys Fees for the Successful Pursuit of CPD
Records................................................................................................................. 55
A.

The Circuit Courts Denial of Attorneys Fees Should Be Reviewed De

Novo .......................................................................................................... 55
Overend v. Guard, 98 Ill.App.3d 441 (4th Dist. 1981)..............................55
Melton v. Frigidaire, 346 Ill.App.3d 331 (1st Dist. 2004) ........................55
Rock River Times v. Rockford Public School Dist., 977 N.E.2d 1216 (2d
Dist. 2012)..................................................................................................55
In re Marriage of Murphy, 203 Ill.2d 212 (2003)......................................56
Hamer v. Lentz, 132 Ill.2d 49 (1989) .........................................................56

B.

Mr. Kalven Has Substantially Prevailed and Is Consequently Entitled

to Attorneys Fees ................................................................................... 56
People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193 (1st Dist. 1997) ...56, 59
Duncan Pub., Inc. v. City of Chicago, 304 Ill.App.3d 778 (1st Dist. 1999)
..........................................................................................................56, 57
Hensley v. Eckerhart, 461 U.S. 424 (1983) ...............................................57
5 U.S.C. 552(a)(4)(E)........................................................................58, 59
5 U.S.C. 552(a)(4)(E)(ii) .........................................................................58
Bricker v. FBI, 54 F. Supp. 2d 1 (D.D.C. 1999) ........................................58
Lovell v. DOJ, 589 F.Supp. 150 (D.D.C. 1984) .........................................58
Texas State Teachers Assn v. Garland Indep. Sch. Dist., 489 U.S. 782
(1989) .........................................................................................................59
xi

Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005) .....................................59

CONCLUSION ............................................................................................................... 60

xii

ADDITIONAL ISSUES PRESENTED FOR REVIEW

1. Whether the circuit court erred in finding that documents prepared, maintained,
and controlled by the Chicago Police Department are public records of the Chicago
Police Department.
2. Whether the circuit court, relying in part on the express holding of the Seventh
Circuit in Bond v. Utreras, 585 F.3d 1061, 1076 n.10 (7th Cir. 2009), erred in finding that
discovery protective orders in federal civil cases are no bar to disclosure of the Bond and
Moore Repeater Lists under FOIA.
3. Whether the circuit court abused its discretion in finding that Defendants
waived the argument that Section 7(1)(n) applies to the Repeater Lists because
Defendants never made the argument during the proceedings on summary judgment.

STATEMENT OF FACTS
Mr. Kalven hereby incorporates and relies on the statement of facts from his
opening brief.

ARGUMENT
Defendants brief fails to engage with the fundamental purpose of Illinois FOIA
as articulated by the legislature: to enable the people to fulfill their duties of discussing
public issues fully and freely, making informed political judgments and monitoring
government to ensure that it is being conducted in the public interest. 5 ILCS 140/1.
Indeed, Defendants only discuss the public interest in order to dismiss it as being
beside the point. Brief of Defendant-Appellee, Cross-Appellant 28 (Defs. Br.).
But this case has everything to do with the public interest. The people have the
right to know the names of the Chicago police officers who have been charged with the
most citizen complaints, and to know how their government has addressed, or failed to
address, those complaints, in order to perform their essential monitoring role to ensure
that the Chicago Police Department is being operated in the public interest. Defendants
attempts to keep this information secret must fail.
This brief serves jointly as Plaintiffs Reply in support of his appeal of the circuit
courts entry of summary judgment in favor of Defendants with respect to the CRs and
his Response to Defendants appeal of summary judgment in favor of Plaintiff on the
Repeater Lists. As to the CRs, the 2009 version of FOIA, not the 2010 version, governs
this case, but regardless of which version controls, none of the exemptions apply to
CRs. Defendants arguments that the Repeater Lists are exempt under Sections 7(1)(n),
7(1)(f) and 7(1)(b) not only fail on their merits, but have all been waived. Nor are
Defendants relieved of their duty to disclose the Repeater Lists because they were subject
to protective orders in federal litigation.

I.

The Circuit Court Erred in Denying That Defendants Must Produce the CRs
A.

The Circuit Court Improperly Applied the 2010 Version of FOIA to

This Case Retroactively

As Defendants acknowledge, the proper test for retroactivity in Illinois is

described by the Illinois Supreme Court in Commonwealth Edison v. Will County
Collector, 196 Ill.2d 27 (2001), and Caveney v. Bower, 207 Ill.2d 82 (2003). Defs. Br.
15. The court looks to the General Assemblys clear intent as expressed in the text of the
statute. Caveney, 207 Ill.2d at 91. If the intent is not clear on the face of the statute, the
court must apply the default rules described in Section 4 of the Statute on Statutes. Id.at
92. Under the Statute on Statutes, substantive provisions are applied prospectively. Id.
The General Assembly clearly indicated, through the laws delayed effective date,
its intention that the 2010 amendments to FOIA would only apply prospectively. Even in
the absence of the delayed effective date, the default rule of Section 4 would forbid courts
from applying Section 7(1)(n) retroactively because, as Defendants do not dispute,
Section 7(1)(n) is a substantive provision. In either case, the 2010 amendments are not
applicable to Mr. Kalvens claims.
Defendants attempt to avoid this result by pointing to language in an unrelated
procedural amendment to FOIA. They argue that FOIAs attorneys fees provision, which
states that it only applies to causes of action filed after January 1, 2010, is evidence of an
intent that the rest of the statute apply retroactively. Defs. Br. 16-19. This argument is
inconsistent with the canons of statutory interpretation and the General Assemblys
clearly expressed intent.
In addition, Defendants attempt to disregard the retroactivity analysis entirely,
arguing that Illinois test for retroactivity should not apply because Plaintiff is seeking
3

documents, as opposed to money damages. This, they argue, means that applying the
2010 FOIA amendments to claims that accrued in 2009 somehow does not amount to
retroactive application. Defs. Br. 12-14. Defendants do not cite any Illinois case law in
support of this argument, and instead rely on a single federal case whose holding turns on
a test that has been squarely rejected by the Illinois Supreme Court.
For these and all the reasons described below, the Court should decline to apply
the 2010 version of FOIA to Plaintiffs 2009 claims.
1.

The General Assembly Clearly Indicated its Intent that the

2010 Amendments to FOIA Must Not Apply Retroactively

The parties agree that the threshold question for determining the temporal reach of
the substantive provisions of 2010 FOIA is whether the General Assembly indicated its
intent on the matter. Defs. Br. 15. Defendants claim that Mr. Kalven ignores the rule that
where the legislature expresses its intent regarding retroactivity in the statutes text, the
Statute on Statutes is inapplicable. Defs. Br. 17 (citing Allegis Realty Investors v.
Novak, 223 Ill.2d 318, 332 (2006)). To the contrary, Mr. Kalven has argued here and in
the circuit court that the General Assembly made its intent for the temporal reach of the
2010 amendments clear through a delayed implementation date. See Brief of PlaintiffAppellant, Cross-Appellee 24-25 (Kalven Br.) 24-25. It is well-settledand
Defendants in fact concedethat a delayed implementation date for legislation is
evidence that the General Assembly intended that legislation to apply prospectively. See
Defs. Br. 18-19; General Motors v. Pappas, 242 Ill.2d 163, 187 (2011); People v.
Brown, 225 Ill.2d 188, 201 (2007); People v. Martinez, 386 Ill.App.3d 153, 162 (1st Dist.
2008); People v. Blanks, 361 Ill.App.3d 400, 410 (1st Dist. 2005). By disregarding this

clearly expressed indicator of the legislatures intent, it is Defendants who fail to apply
Illinois law.
Defendants attempt to brush aside this line of cases. They argue that language in
the 2010 amendment to the FOIA attorneys fees provision, specifying that the provision
applies to actions filed after January 1, 2010, requires the rest of the FOIA statute to be
applied retroactively. Defs. Br. 16-19 (citing 5 ILCS 140/11(i)). The application of the
statute as a whole, Defendants argue, would render the temporal language in the fees
provision superfluous. Id. However, there was nothing superfluous about the General
Assemblys instruction that the fees provisions should not be applied retroactively.1
Defendants concede that, unless exceptional, amendments to attorneys fees provisions
are procedural. Defs. Br. 17-18; Callinan v. Prisoner Review Board, 371 Ill.App.3d 272,
275-76 (3d Dist. 2007). They therefore apply retroactively, absent specific legislative
instructions to the contrary. See Deicke Ctr. v. Illinois Health Facilities Planning Bd.,
389 Ill.App.3d 300, 303 (1st Dist. 2009) (Where the legislature has not specified the
application, amendments and repeals that are procedural may be applied retroactively,
while those that are substantive may not.); 5 ILCS 70/4.2 Without the Assemblys

Indeed, it is Defendants interpretation that would render statutory language

superfluous. Retroactive application of FOIAs substantive amendments would be
contrary to the legislatures delayed implementation date.
2

The City charges Plaintiff with presenting a circular argument in referencing Section
4 when discussing the General Assemblys intent. To the contrary, it is appropriate to
reference Section 4 in determining a legislatures intent for the temporal reach of a
statute, because the legislature is presumed to have drafted their statutes in light of
Section 4. See Connell v. Crosby, 210 Ill. 380, 386-87 (1904) (It is to be assumed the
amendatory act was framed in view of the provisions of said section 4 . . . and that it was
the legislative intent the amendatory act should have prospective operation only.);
Caveney, 207 Ill.2d at 94. In other words, the Court must presume that the General
Assemblys language regarding temporal reach, including the language in the attorneys
5

specific instructions to the contrary, there would be a significant likelihood that courts
would apply the fees provisions retroactively as they would any other procedural
amendment. Because the legislature intended otherwise, it included the instructions to
avoid any potential uncertainty.3
The legislatures instructions about the fee amendments in Section 11(i), which
are contained in an entirely different part of the statute than the substantive exemptions,
have no bearing on the interpretation of FOIAs exemptions. In Landgraf v. USI Film
Products, 511 U.S. 244 (1994), a case on which Defendants rely, the U.S. Supreme Court
rejected an argument very similar to Defendants argument. The Landgraf plaintiff
asserted that because two provisions in the Civil Rights Act of 1991 specified their
prospective application, the rest of the amended law should be applied retroactively. Id. at
258. Like Defendants, the plaintiff invoke[d] the canon that a court should give effect to
every provision of a statute and thus avoid redundancy among different provisions and
also argued that because Congress provided specifically for prospectivity in two places
. . . [the Court] should infer that it intended the opposite for the remainder of the statute.

fees provision, was crafted with the Statute on Statutes default rules in mind. This also
means that the legislature was aware that if it intended substantive portions of the Act to
be applied retroactively, it would need to so specify. Because the General Assembly did
not provide for retroactivity in the Act (and, in fact, specified a delayed implementation
date), the Assembly clearly intended prospective application of the substantive
amendments.
3

Defendants strained argument that it is possible that some of the attorney fee
amendments arguably fit within Callinans exceptions as substantive rather than
procedural amendments, even if correct, would not render the legislatures express
instructions superfluous. Defs. Br. 17-18. Defendants own tentative characterization of
the fee amendments underscores the need for legislative clarity. Because the legislature
intended that the fees amendments should not apply retroactively, it made perfect sense to
specify this to avoid the uncertainty that may have existed if the legislature had chosen to
remain silent.
6

Id. at 259. The Court dismissed this argument, pointing out that petitioner's statutory
argument would require us to assume that Congress chose a surprisingly indirect route to
convey an important and easily expressed message concerning the Act's effect on
pending cases. Id. at 262. The Court explained that this sort of negative inference
argument would frustrate the intent of Congress as to the statute as a whole. Id. at 258-59.
In any event, the legislatures instructions in Section 11(i) concerning the
prospective application of the fees provisions in no way demonstrate a clear intent for
the retroactive application of other parts of FOIA containing substantive amendments. A
clear legislative intent is required for FOIAs substantive amendments to be applied
retroactively. [S]tatutes and amendatory acts are presumed to operate prospectively
unless the statutory language is so clear as to admit of no other construction. Shoreline
Towers v. Condominium Assn v. Gassman, 404 Ill.App.3d 1013, 1023-24 (1st Dist.
2010) (emphasis added). In light of the legislatures clear expression of its intent for
prospective application in the delayed implementation date, Defendants proposed
negative inference would, at most, create some ambiguity surrounding the meaning of the
text, which would require the Court to apply Section 4 of the Statute on Statutes.
Caveney, 207 Ill.2d at 92. As Defendants concede, Section 7(1)(n) is a substantive
amendment, and Section 4 therefore forbids retroactive application.
Under any reading of the amendments, the circuit court erred in applying Section
7(1)(n) retroactively in this case.

2.

The Application of the 2010 Version of FOIA to Mr. Kalvens

FOIA Request Would Be the Retroactive Application of That
Law

Defendants attempt to avoid altogether the application of Illinois law to the

question of 2010 FOIAs temporal reach. They do so by assertingincorrectlythat the
circuit court did not retroactively apply the 2010 FOIA exemptions when it applied them
to Plaintiffs 2009 FOIA claims. Defs. Br. 12-14. Defendants sole support for their
erroneous assertion is the inapposite federal case City of Chicago v. U.S. Dept of
Treasury, Bureau of Alcohol, Tobacco & Firearms, 423 F.3d 777 (7th Cir. 2005)
(ATF). The result in ATF turned on the application of the second step of the federal
Landgraf test, which Illinois courts do not employ. Caveney, 207 Ill.2d at 92. Landgrafs
inapplicable second step instructs courts to decide whether application of the statute
would have a retroactive impact. Landgraf, 511 U.S. at 280.4 Applying Landgraf step
two, the ATF court found that the relief the City requested, disclosure of data by the ATF,
was a potential future event to which the FOIA plaintiff had no vested right. ATF,
423 F.3d at 783. Because it was not a vested right, under Landgraf step two it was
proper to apply the law in effect at the time of [the courts] decision. Id. at 783 (citing
Landgraf, 511 U.S. at 274).

The second step of the federal Landgraf test, the retroactive impact test, applies only
when the legislative intent is unclear. The Illinois Supreme Court explained that it is
never necessary to go beyond Landgrafs first step in Illinois because the legislature has
clearly indicated the temporal reach of every amended statute through the Statute on
Statutes. Caveney, 207 Ill.2d at 92 (emphasis in original). The Court emphasized that
there is never any need to engage the analytical challenges typically posed by a phrase
like retroactive impact, because the assessment of the existence of any retroactive
impact has no place in the analysis of retroactivity in Illinois. Id. at 91-92.
8

But there is no step two in Illinois, which is why Defendants are unable to point to
a single Illinois case to support their argument. The Illinois Supreme Court expressly
rejected the vested rights test for assessing retroactivity. Commonwealth Edison, 196
Ill.2d at 34-39. Here, if the Court finds that the General Assemblys intent is unclear from
the text, it must apply the default rule of Section 4 of the Statute on Statutes, not
Landgraf step two. See Allegis, 223 Ill.2d at 331-32 (In light of the statute, we have held
that an Illinois court need never go beyond step one of the Landgraf test.).
Defendants do not dispute that Mr. Kalvens claims accrued in 2009the year
Defendants wrongfully denied Mr. Kalvens FOIA request and Mr. Kalven exhausted his
administrative remedies. They are unable to point to any Illinois authority challenging
application of the settled Illinois principles of retroactivity to this case: absent specific
legislative language to the contrary, substantive amendments to the law may not be
applied retroactively to causes of action that accrued before the amendments went into
effect. Caveney, 207 Ill.2d at 94-95. If Defendants assertion were correct, substantive
amendments to FOIA would always be given retroactive application. The General
Assemblys specification of a delayed implementation date for the 2010 FOIA
Amendments would make no sense in Defendants counter-factual retroactivity regime.
Defendants attempt to resurrect the old vested rights approach, which has been
rejected in Illinois, does not rescue them from the application of Illinois retroactivity
principles which mandate that a court may not apply the substantive 2010 amendments to
Mr. Kalvens 2009 cause of action.

B.

CRs Are Not Exempt Under Section 7(1)(b) of the 2009 Version of
FOIA5

In Watkins v. McCarthy, 2012 IL App (1st) 100632, this Court, relying on the
Fourth Districts decision in Gekas v. Williamson, 393 Ill.App.3d 573, 583-84 (4th Dist.
2009), held that CR files are not exempt from disclosure under section (7)(1)(b)(ii) as
personnel files. Watkins, 2012 IL App (1st) 100632, 22.
Defendants concede that the Watkins decision is controlling authority but
nevertheless argue that Watkins and Gekas were wrongly decided and should be
overturned. Defs. Br. 31-33. As support for their position, Defendants rely on dicta from
Copley Press, Inc. v. Board of Education, 359 Ill.App.3d 321 (3d Dist. 2005) to create a
false conflict with Gekas. Defs. Br. 31-34. But in Watkins, this Court fully considered
whether Copley Press was at odds with Gekas and rejected that argument. Watkins, 2012
IL App (1st) 100632, 20-24 (Defendant believes that the court in Gekas disregarded
that section 7(1)(b)(ii) exempts both personnel files and personal information. 5 ILCS
140/7(1)(b)(ii) (West 2008). We disagree.). Defendants have failed to present any
compelling reason for this Court to depart from its own precedent.
As a fallback position, Defendants incorrectly suggest that Watkins and Gekas
require the lower court on remand to conduct an in camera review of all of the requested
CRs, analyzing each one to determine whether it bears on the officers public duties.
Defs. Br. 34. In Watkins, the defendants submitted the affidavit of the commanding
officer of the records section of IAD which stated that one of the requested CRs does not
involve any allegation of wrong doing by an officer in the course of his official duties
5

Defendants argued in summary judgment that the Illinois Personnel Record Review Act
applies to CR files. They have abandoned this argument on appeal.
10

[but] involves an allegation against the officer in his off-duty capacity. Watkins, 2012 IL
App (1st) 100632, 26. Based on this evidence, this Court instructed the circuit court on
remand to review the file and consider if any of the records within that particular CR file
bear on the officers public duties, are entirely personal in nature, or exempt for any
reason. Id. In contrast, Defendants have not provided any evidence that the requested
CRs in this case do not bear on the officers public duties.6 Having provided no such
evidence, Defendants have conceded this point or at least waived any argument to the
contrary. Their request for an in camera review should be denied.
C.

Section 7(1)(n)s Adjudicatory Exemption Does not Exempt CRs

Even if the 2010 amendments to FOIAs adjudicatory exemption were applied to

Mr. Kalvens 2009 cause of action, the requested CRs must still be produced. The Illinois
Attorney Generalthe official charged with interpreting and administering Illinois
FOIAalong with several federal courts and the only other Illinois court that has
addressed the issue, all agree with Mr. Kalven that FOIAs adjudicatory exemption in
Section 7(1)(n) does not exempt CRs from disclosure. They all have concluded that
investigations into citizen complaints of police misconduct are not related to the
adjudication of employee grievances and disciplinary cases.
Defendants complain that these authorities fail to apply the plain and
unambiguous language of section 7 of the 2010 version of FOIA. Defs. Br. 23. They

Nor does Gekas lend support to Defendants request for an in camera review. The
Appellate Court in Gekas instructed the lower court to identify, and order the defendant
to provide to the plaintiff, all complaints that related to allegations of wrongdoing by the
officer in the performance of his public duties. Gekas, 393 Ill.App.3d at 590. In this case,
since Defendants have not provided any evidence that the requested CRs do not bear on
the officers public duties, in camera review on remand is unnecessary.
11

imply that by substituting the words records relating to for the words information
concerning in a pre-existing provision that exempted adjudications of employee
grievance and discipline cases, the General Assembly intended to create a brand new
FOIA exemption for investigations of citizen complaints of police misconduct. This
implausible, impermissibly broad reading requires ignoring extensive, varied, and clear
evidence of the General Assembly's intent.
Context matters. The term relating to cannot be read in a vacuum. As ardent a
textualist as Justice Scalia has noted the impossibility of interpreting the words related
to on their own, and has highlighted the need for external guidance:
[A]pplying the relate to provision according to its terms was a project doomed
to failure, since, as many a curbstone philosopher has observed, everything is
related to everything else.
California Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc., 519
U.S. 316, 335 (1997) (Scalia, J., concurring).
Defendants unduly broad construction of the adjudicatory exemption ignores the
context in which Section 7(1)(n) was enacted: (1) Section 7(1)(n) did not create a new
exemption that shielded CRs; the prior version of FOIA contained a virtually identical
adjudicatory exemption which was never interpreted to protect investigations into citizen
complaints of police misconduct; (2) within a month before the enactment of the
Amendments, this Court had announced that records related to police misconduct like
CRs must be produced under FOIA; (3) the purpose of the 2010 amendments was to
strengthen FOIA to increase access to public records, not to create new exceptions to
shield records from the public; (4) the General Assembly removed any possible doubt
about its intentions when it rejected a proposed amendment that would have extended
Section 7(1)(n) to include records related to disciplinary investigations; and (5) FOIA
12

mandates that exemptions must be interpreted narrowly as limited exceptions to its

overarching premise that the people have the right to the full and complete disclosure of
the affairs of government.
When read in context, it is clear that Section 7(1)(n) does not exempt CRs. The
circuit courts ruling to the contrary is erroneous.
1.

The General Assemblys Substitution of the Words Related

to for the Word Concerning in FOIAs Adjudicatory
Exemption did not Newly Exempt Investigations of Citizen
Complaints of Police Misconduct

The circuit courts holding that the 2010 version of FOIA exempts CRs hinges on
the notion that the General Assembly created a brand new exemption, Section 7(1)(n),
that shields investigations into citizen complaints of police misconductall through an
insignificant line edit to a pre-existing exemption for the adjudication of employee
grievances and discipline cases. But the current Section 7(1)(n) is the result of changes
that merely reorganize exemptions that existed in the prior version of the law; it is not a
new exemption. Section 7(1)(u), which was initially enacted when FOIA became law in
1983 and which remained in effect until the 2010 amendments, exempted information
concerning any public body's adjudication of student or employee grievances or
disciplinary cases, except for the final outcome of the cases. 5 ILCS 140/7(1)(u) (West
2008).7

In the 2010 amendments, the legislature separated the educational components of

7(1)(u) and grouped them with other education-related exemptions under one common
heading, Section 7(1)(j). It left 7(1)(u)s exemption for any public bodys adjudication
of employee grievances and disciplinary cases intact and renumbered it as 7(1)(n).
Compare 5 ILCS 140/7(1)(u) (West 2009) with 5 ILCS 140/7(1)(n) (West 2010)
(emphasis added).
13

Defendants claim to a new exemption for CRs rests on one trivial change from
7(1)(u) to 7(1)(n): the legislature replaced the words information concerning with the
words records relating to.8 This change has no impact on the scope of the exemption.
The terms are synonymous. The Merriam-Webster dictionary explicitly defines
concerning as relating to, see concerning, Merriam-Webster Online Dictionary,
available at http://www.merriam-webster.com/dictionary/concerning (last visited Aug.
19, 2013), and courts have found this definition controlling for purposes of statutory
interpretation. See, e.g., Bloomberg, L.P. v. United States Food & Drug Admin., 500
F.Supp.2d 371, 377 (S.D.N.Y. 2007) (noting that the definition of concerning is
relating to; to be about; to bear on.).9
Defendants do not dispute that FOIAs 2010 adjudicatory exemption in 7(1)(n)
existed for nearly 30 years in virtually identical form, as former Section 7(1)(u). Defs.
Br. 27. Defendants also do not dispute that at no point in this 30-year history leading to
the present amendments was former Section 7(1)(u)s adjudicatory exemption ever

Section 7(1)(u) of the 2009 version of FOIA exempted information concerning any
public bodys adjudication of student or employee grievances or disciplinary cases,
except for the final outcome of the cases. 5 ILCS 140/7(1)(u) (West 2009). The current
version of FOIA exempts [r]ecords relating to a public bodys adjudication of employee
grievances or disciplinary cases; however, this exemption shall not extend to the final
outcome of cases in which discipline is imposed. 5 ILCS 140/7(1)(n).
9

The tweak in the language was likely a stylistic choice to make the language of Section
7(1)(n) consistent with another exemption that begins with the words [r]ecords relating
to. See 5 ILCS 140/7(1)(p).
14

interpreted to exempt a public bodys investigations into citizen complaints of police

abuse.10 Section 7(1)(n)the exact same exemptiondoes not do so now.
In addition, just a month before Section 7(1)(n) was enacted, this Court declared
that records related to police misconduct complaints, such as CRs, are not exempt under
FOIA. Gekas, 393 Ill.App.3d at 574-75. Defendants ask the Court to disregard its ruling
in Gekas as inapposite because it did not address Section 7(1)(n), which had not yet been
enacted. Defs. Br. 27. But the fact that the Assembly, in amending FOIA, did not make
any reference to Gekas nor express any intent to overturn the decision is powerful
evidence that the amendments were not intended to disturb the Gekas holding.
Legislatures typically do not overturn the effects of important court decisions without any
acknowledgement that they are doing so. See, e.g., The Lily Ledbetter Fair Pay Act of
2009, Pub. L. 111-2, 123 Stat. 5 (explicitly citing the Supreme Court cases the Act was
intended to overturn). Try as they might, it simply defies belief that the Legislature de
facto overruled Gekas by changing the word concerning to relating to in an
exemption that had never been applied to citizen complaints of police misconduct in its
three-decade history.
Defendants also cannot contest that the 2010 amendments to FOIA were
universally seen as an attempt to make the government more, not less, transparent. See,
e.g., Alison K. Hayden, Two Cheers for the New Illinois Freedom of Information Act, 98
Ill. B.J. 82 (2010) (The intent of this legislation, which took effect January 1, was to
create a more open and transparent government.); Katherine E. Licup, Foley &
10

Indeed, despite Defendants claims that CRs are also exempt under the 2009 version of
FOIA, they have never made any argument that former Section 7(1)(u) exempts CRs
from disclosure under FOIA.
15

Lardner LLP, Amended FOIA to Take Effect on January 1, 2010, available at

http://bit.ly/XSmxib (Illinois new FOIA is an important step toward improving
transparency in Illinois government.). When the purpose of a legislative enactment is
clear, each provision of that enactment should be read in harmony with that purpose.
Harvel v. City of Johnston City, 146 Ill.2d 277, 283 (1992). In the context of a wellpublicized legislative enactment unanimously seen as promoting transparency,
Defendants claim that the substitution of the words relating to for the word
concerning spawned a brand new exemption for municipalities investigations of
citizen complaints of police misconduct cannot withstand scrutiny.
Perhaps most importantly, about a month after 7(1)(n) was enacted, the General
Assembly expressly rejected a proposed amendment to broaden Section 7(1)(n) to protect
internal disciplinary investigations. The legislature made a conscious decision not to
extend 7(1)(n)s adjudicatory exemption to disciplinary investigations when it rejected an
amendment to FOIA, proposed on February 3, 2010, which would have changed the
language of 7(1)(n) from exempting records related to the adjudication of employee
grievances or disciplinary cases to exempting records relating to a public bodys
investigation, settlement, and adjudication of employee grievances or disciplinary cases.
S.B. 2978, 96th Gen. Assem. (Ill. 2010) (emphasis added). The legislatures express
rejection of the addition of investigations to the exemption makes plain that it did not
intend to exempt police misconduct investigations under 7(1)(n). See Supplementary
Appendix (Supp. App.) A21, Kitchen v. Burge, No. 10 C 4093, dkt. 191, at *6 n.1
(N.D. Ill. Aug. 1, 2011), adopted by dkt. 206 (noting that the proposed amendment
suggests that 7(1)(n) does not exempt CRs).

16

In response to overwhelming evidence that the General Assembly did not intend
to extend 7(1)(n) to CRs, Defendants muster only a brief exchange in which the Speaker
of the House noted that [a]ll of the details that led to the dismissal in a case in which a
public employee was fired for malfeasance or for cause would be exempt. Defs. Br.
25. This is far too cursory and vague to tell us anything about this case. The exchange
makes no mention of investigations into police misconduct; instead, it likely refers to
details leading up to the run-of-the-mill and purely internal grievance and disciplinary
adjudications that Section 7(1)(n) actually exempts from disclosure. See Supp. App. A8,
Office of the Attorney General of Illinois, Public Access Opinion 13-011, 2013 PAC
23559, at 8 (citing Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991, at *6
(N.D. Ill. Sept. 13, 2010) (noting that the exemption for employee grievances and
discipline is likely related to union and personnel disciplinary procedures). This vague,
thirty-second exchange does not undermine thirty years of evidence that the adjudicatory
exemption has nothing to do with investigations into citizen complaints of police
misconduct. It does not approach the type of statement that the General Assembly would
make if it had intended to undo this Courts ruling that public bodies must produce
records related to police misconduct under FOIA. If the exchange created any uncertainty
about the intended scope of 7(1)(n), it was resolved a month later by the General
Assemblys refusal to extend the adjudicatory exemption to disciplinary investigations.
2.

The Attorney General Correctly Found that 2010 FOIA

Exempts Adjudications of Employee Grievances and
Disciplinary Cases, Not Police Misconduct Investigations

The CRs in this case involve citizen complaints of misconduct against five
Chicago police officers repeatedly accused of abuse. To Plaintiffs knowledge, none of
those citizen complaints has ever led to an adjudication of any sort. The process of
17

investigating citizen complaints of police misconduct by investigative agencies in

Chicago is entirely distinct from any later adjudication of discipline by the Chicago
Police Board. See e.g., Supp. App. A20, Kitchen, No. 10 C 4093, dkt. 191, at *5.
Chicagos IPRA, OPS, and the Internal Affairs Division of the police department
investigate citizen complaints of police misconduct; they do not adjudicate them. R.
1149, Macias v. City of Chicago, No. 09 C 1240, dkt. 62, at *2 (N.D. Ill. Mar. 10, 2010)
(quoting Chicago Police Board, Allegations of Police Misconduct: A Guide to the
Complaint and Disciplinary Process (August 2009)). The agencies do not even make the
decision whether to file charges against an officer for adjudication. Defs. Br. 21. The
Superintendent makes that decision. Id. Any documents that may be generated by the
Chicago Police Board in its adjudicatory proceedings are not at issue in this case.
Defendants understand that CR investigations are wholly distinct from
adjudications of disciplinary cases.11 They further acknowledge that FOIA requires that
courts must narrowly construe its exemptions to fulfill the statutes purpose. Stern v.
Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 233 Ill.2d 396,410-11 (2009); Defs. Br.
24. Nonetheless, they ask this Court to disregard the authoritative opinion of the Attorney
General and various courts, because there can be no adjudicatory proceedings without
CRs. Defs. Br. 20 (citing the circuit court below, at Appendix to Plaintiffs Opening
Brief A4 (App.)). The Illinois Attorney General and the several courts cited in
11

Defendants own publication reads: The Independent Police Review Authority

(IPRA), the Police Department, and the Police Board have different roles. The
responsibility to receive complaints rests with IPRA. Depending on the nature of the
allegations, either IPRA or the Police Department will investigate the Complaint. The
Police Boards role is to adjudicate the complaintsit is similar to a court. R. 1149,
Macias, No. 09 C 1240, dkt. 62, at *2 (quoting Chicago Police Board, Allegations of
Police Misconduct: A Guide to the Complaint and Disciplinary Process (August 2009)).
18

Plaintiffs Opening Brief rightly reject this unduly broad reading of the adjudicatory
exemption, and properly hold that Chicago Police Department CRs do not relate to
adjudications and are not exempt under Section 7(1)(n). App. A412, Office of the
Attorney General of Illinois, Public Access Opinion, 2010 PAC 6246 (Sept. 8, 2011)).12
Defendants not only refuse to accept the Attorney Generals well-reasoned
interpretation of FOIAs adjudicatory exemption, they also fail to acknowledge that
FOIAs interpretation by the AG, the official charged with administering and interpreting
FOIA, see 5 ILCS 140/9.5, is entitled to considerable deference. Church v. State, 164
Ill.2d 153, 162 (1995) (A court will not substitute its own construction of a statutory
provision for a reasonable interpretation adopted by the agency charged with the statute's
administration.) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)).13
Particularly notably, Defendants did not acknowledge the formal binding opinion
by the Attorney General confirming that police misconduct investigations are not exempt
under 7(1)(n). Supp. App. A1, 2013 PAC 23559, at 1 (June 11, 2013).14 The Attorney

12

The decisions of several federal district courts and the Sangamon County Circuit Court
in Christian v. City of Springfield similarly rejecting Defendants overbroad reading of
7(1)(n) are presented in Plaintiffs Opening Brief. Kalven Br. 34-37. The Sangamon
County Circuit Court entered another decision on July 12, 2013 that confirmed that
documents generated during a police internal affairs investigation are not exempt under
Section 7(1)(n). Supp. App. A11, Christian v. Springfield, No. 2011 MR 633 (Sangamon
Cnty. Cir. Ct. July 12, 2013).
13

Defendants also ignore that the Attorney General initiated and guided the 2010
Amendments through the Assembly, and thus had special insight into the Legislatures
intent in enacting 7(1)(n). Ryan Keith, Attorney general releases new FOIA rewrite, The
State Journal-Register, May 27, 2009, http://www.sjr.com/breaking/x124601484/Attorney-general-releases-new-FOIA-rewrite.
14

The decision was issued ten days before Defendants filed their brief before this Court.
19

General recognized that FOIAs adjudicatory exemption has nothing to do with citizen
complaints of police misconduct. It is aimed at the adjudication of purely internal
personnel matters, not the investigation of public complaints about the actions of police
officers in their official capacities. See Supp. App. A8, 2013 PAC 23559, at 8 (citing
Rangel, 2010 WL 3699991, at *6).
Contrary to Defendants broad interpretation here, the Attorney General
emphasized that FOIA requires a narrow interpretation of the language of exemptions
that permit the withholding of records to give all persons full and complete information
regarding the affairs of government to enable them to ensure that it is being conducted
in the public interest. Supp. App. A8, 2013 PAC 23559, at 5 (citing 5 ILCS 140/1 (West
2011)) (emphasis in original). Unlike Defendants here, the Attorney General reviewed
the context and history of the 2010 Amendments and found that there is no basis to
conclude that Section 7(1)(n), whose text was nearly identical to former Section
7(1)(u), was an effort to broaden the scope of the adjudication exemption for public
employees, and certainly not to exempt CR register documents. Supp. App. A8, 2013
PAC 23559, at 8 (quoting Rangel, 2010 WL 369991 at *3).
The Attorney General then distinguished the adjudicative proceedings of 7(1)(n)
from investigations into complaints of police misconduct: adjudications are proceedings
where witnesses were called and the identified employee had a right to call witness and
make arguments. Supp. App. A8, 2013 PAC 23559, at 8. In recognition of FOIAs
policy to narrowly interpret exemptions and in recognition of the extremely strong
public interest in access to a public bodys investigations into police misconduct, the
Attorney General ruled: Without a narrow construction of an adjudication under

20

section 7(1)(n), a public body may define an adjudication without regard to the formality
of the proceedings which relate to an investigation of its own employee. Id. The
Attorney General concludes that, as such, [r]ecords generated during a public body's
internal investigation of a matter that did not result in any formal adjudicatory proceeding
do not relate to an adjudication, within the meaning of section 7(1)(n). Id. at 6.
This Court has also drawn a bright line between investigations and adjudications,
emphasizing that investigative activities which precede a public bodys final
determination are not components of an adjudication. The Court explained:
[T]he function of investigation/charging is distinct from the function of
adjudication. The hearing officer takes and hears evidence (adjudication), while
the school board simply investigates and gathers evidence (investigation).
Investigate means to trace or track; to search into; to examine and inquire into
with care and accuracy; . . . examination. Adjudicate or adjudge means to
decide . . . [and] [i]mplies a judicial determination. The legislature clearly left
only one function with the local board, that of investigation and charging. The
adjudicatory function, and all matters attendant thereto, was placed with the
hearing officer.
Bd. of Educ. of Cmty. Consol. Sch. Dist. No. 54 v. Spangler, 328 Ill.App.3d 747, 757 (1st
Dist. 2001) (internal citations omitted).
Just last month, the Sangamon County Circuit Court also distinguished between
investigatory and adjudicatory documents when it held that Section 7(1)(n) does not
extend to (1) records generated as part of the Citys investigation of alleged misconduct
of police officers before the adjudicatory process has commenced; or (2) records
generated as part of the Citys investigation of alleged misconduct of its police officers
where no adjudicatory process commences. Supp. App. A14, Christian v. Springfield,
No. 2011 MR 633, at *4 (Sangamon Cnty. Cir. Ct. July 12, 2013). Like the opinions of
the Attorney General and this Court, the court explained that the terms adjudication and

21

investigation have separate and distinct meanings, the legislature specifically chose
the word adjudication, and records produced during an internal affairs investigation do
not meet the definition of adjudication. Id.
Notwithstanding the wealth of authority to the contrary, Defendants argue that CR
investigations relate to the adjudication of disciplinary cases because the Police Board
relies on CRs in adjudicatory hearings. Their argument illustrates Justice Scalias point
that anything can relate to anything else, when divorced from the relevant context.
California Div. of Labor Standards Enforcement, 519 U.S. at 335 (Scalia, J., concurring).
Without a civilian complaint of misconduct, there would never be an investigation.
Without an investigation, a complaint would never be presented to the superintendent.
Without a decision to charge by the Superintendent, there would never be a hearing
before the Police Board. And so on. According to Defendants logic, the words relating
to could sweep virtually any type of public information or documents into Section
7(1)(n). Defendants argument has even less force here, as Plaintiff is unaware of a single
CR requested in this case that actually led to an adjudicatory hearing of any sort. CRs that
will never be used in any adjudicative process cannot relate to disciplinary
adjudications. Defendants extremely broad reading cannot be squared with the General
Assemblys requirement to narrowly interpret exemptions to FOIA as limited exceptions
to the publics right to know about the affairs of its government.15

15

Defendants complain that it would be absurd to exempt investigations that lead to

adjudications, but to require production of police misconduct investigations that never
lead to an adjudication of discipline. Defs. Br. 25. Their complaint misses the mark.
First, closed police misconduct investigations must be produced whether or not they lead
to discipline. Kalven Br. 32-37. Second, this Court has stressed the importance of the
disclosure of police misconduct complaints that the City refuses to sustain. Gekas, 393
22

Defendants rely on a few federal trial court opinions that made mistakes similar to
those made by the circuit court.16 First and foremost, those opinions treat 7(1)(n) as
though it were a brand new provision. Unlike the Attorney General, none of them
recognized the fact that 7(1)(n) merely replaced 7(1)(u). In contrast, the federal courts
that were aware of the history of 7(1)(n) appropriately recognized that the Legislature did
not dramatically change Illinois law to block all public access to documents of police
misconduct investigations, simply by changing the word concerning in 7(1)(u) to
relating to in 7(1)(n). See e.g., R. 2312, Rangel, 2010 WL 3699991, at *3; R. 2316,
Fuller v. City of Chicago, No. 09 C 1672, 2009 U.S. Dist. LEXIS 125727, at *2 (N.D. Ill.
Nov. 10, 2009) (the 2010 amendments do no materially change the provision regarding
disciplinary proceedings); App. A400, Martinez v. City of Chicago, No. 09 C 5938, 2012
WL 1655953, at *2 n.2 (N.D. Ill. May 10, 2012) (The fact that the amended statute
merely restates an existing exemption in slightly different language tends to undercut the
inference that the Illinois General Assembly was responding to Gekas.).

Ill.App.3d at 585 (exempting police misconduct complaints that the police department
determined to be unfounded would throw a cloak over potential wrongdoing and
insulate officials from political accountability.). The Courts observation is particularly
apt in this case, because Chicago rarely sustains police misconduct complaints: the
probability that a Chicago police officer charged with the most serious forms of abuse
will be suspended for a week or more is less than two in a thousand. See Craig Futterman,
Melissa Mather, & Melanie Miles, The Use of Statistical Evidence to Address Police
Supervisory and Disciplinary Practices: The Chicago Police Departments Broken
System, 1 DePaul J. for Soc. Just. 251, 265 (2008).
16

R. 2027, Alva v. City of Chicago, No. 08 C 6261, dkt. 80 (N.D. Ill. Apr. 16, 2010); R.
2031, Bell v. City of Chicago, No. 08 C 0754, 2010 WL 753297,(N.D. Ill. Feb. 26, 2010);
R. 2039, Livingston v. McDevitt, No. 09 C 7725, dkt. 23, at *2-3 (N.D. Ill. May 10,
2010).
23

Second, the opinions on which the circuit court relied broadly construed Section
7(1)(n) to hold that police misconduct investigations relate to adjudications. As discussed
above, their broad construction violates FOIAs explicit directive to read its exemptions
narrowly. See 5 ILCS 140/1; Stern, 233 Ill.2d at 411.
Defendants additional citations to Goff v. Teachers Retirement System, 305
Ill.App.3d 190 (5th Dist. 1999), Kopchar v. City of Chicago, 395 Ill.App.3d 762 (1st
Dist. 2009), and BlueStar Energy Services, v. Illinois Commerce Commission, 374
Ill.App.3d 990 (1st Dist. 2007), to urge a broad reading of Section 7(1)(n) are unavailing
in this context, as the cases themselves make clear. As a preliminary matter, the cases do
not support anything close to the broad reading of the words relating to that Defendants
urge here. The Goff court held that a teachers after-school criminal sexual abuse of his
students related to his role as a teacher because Goff used his service as a teacher to
take advantage of both of the children that he sexually abused. 305 Ill.App.3d at 193.
Kopchar simply holds that the fire department's testing criteria and scoring process also
relate to personnel practices and were thus not exempt from disclosure. 395 Ill.App.3d at
771. BlueStar gave a broad construction to trade secrets under Illinois law; it did not
interpret the words relating to. See 374 Ill.App.3d at 995-97.17

17

Defendants also fail to cite other Illinois cases which construe relating to relatively
narrowly. In Romano v. Municipal Employees Annuity and Benefit Fund of Chicago, 402
Ill.App.3d 857 (1st Dist. 2010), for example, this Court held that a public employee who
was convicted of felony mail fraud for agreeing to bribe the First Deputy Commissioner
of the Citys Department of Water to direct business to a trucking company was not
relating to his service as a municipal employee, and thus did not trigger the pension
forfeiture provision. Id. at 857-58, 865; see also Lopez v. State Liquor Control Commn,
120 Ill.App.3d 756, 765 (2nd Dist. 1983) (holding that a fight that took place off the
premises but stemmed from an initial altercation at a bar was not related to the
24

More fundamentally, as the Illinois Attorney General explained in its binding

opinion, Defendants unduly broad reading of Section 7(1)(n) conflicts with the purpose
and history of the 2010 Amendments. Supp. App. A4-8, 2013 PAC 23559, at 4-8.
Mr. Kalven has presented an overwhelming body of material that conclusively
establishes the intent of the General Assembly in enacting 7(1)(n). Read in context, the
2010 amendments clearly do not exempt investigations of civilian complaints of police
misconduct from the duty of public bodies to release information under FOIA. FOIAs
adjudicatory exemption never exempted CRs when it protected information concerning
any public bodys adjudication of employee grievances or disciplinary cases, prior to
2010. And it does not exempt CRs now.
D.

The Deliberative Process Exemption Does Not Apply to CRs

Defendants acknowledge that Section 7(1)(f) is the functional equivalent of the

deliberative process privilege and protects records in which opinions are expressed, or
policies or actions are formulated. Defs. Br. 28-29. Yet they attempt to fit the requested
documents into this exemption by arguing that CRs constitute recommendations within
the meaning of Section 7(1)(f) because, in the tiny minority of cases that are sustained,
CRs are used to recommend how much discipline is appropriate. Defs. Br. 29.
As set forth in Plaintiffs opening brief, Section 7(1)(f) is only meant to protect
opinions and analyses formulated by public officials as they draft government policy, not
as they perform factual investigations into charges of police misconduct. See, e.g., Day v.
City of Chicago, 388 Ill.App.3d 70, 79 (1st Dist. 2009). There is simply no comparison

operation of the bar or the control of liquor and was therefore not grounds for revoking an
establishments liquor license).
25

between CR investigative files and reports that discuss the pros and cons of a particular
agency policy. The fact that, in a sustained case, an investigators disciplinary
recommendation is passed on to the Superintendent along with the rest of the CR file
does not transform all CRs into the type of documents the deliberative process exemption
was intended to protect. See Supp. App. A14, Christian, No. 2011 MR 633 at *4 (The
Citys claim that [citizen complaints against Springfield police officers] are exempt as
preliminary drafts, notes, recommendations, and memorandums of opinions expressed is
misplaced. The Court does not read the plain language of this exemption to apply to the
reports of an internal affairs investigation.).
Defendants citation of dicta from Bauer v. City of Chicago, 137 Ill.App.3d 228,
234 (1st Dist. 1985), is taken out of context and lends no support to their argument. See
Defs. Br. 29. The issue in Bauer, a negligence case arising out of a police shooting, was
whether an OPS determination against an officer is determinative of the issue of whether
that officer was acting within the scope of his employment. 137 Ill.App.3d at 234-35. The
case has no bearing on whether CRs constitute the type of documents that are exempt
under Section 7(1)(f)s deliberative process exemption.
Defendants repeated assertion that Plaintiff agreed, Defs. Br. 30, or
conceded, Defs Br. 35, in his opening brief that parts of CRs may be redacted pursuant
to Section 7(1)(f) is false. To the contrary, Mr. Kalven was clear in arguing that CRs are
not protected by the deliberative process exemption. Kalven Br. 41. Mr. Kalven further
argued, only as an argument in the alternative, that even if the exemption was found to
apply to CRs, it would at most apply to OPS/IPRA/IADs recommended findings, not to

26

the substance or outcome of its factual investigation, and certainly not to the citizen
complaints themselves. Kalven Br. 42.
Since Section 7(1)(f) does not apply to the CR files, a remand to the circuit court
for in camera review is unnecessary. But assuming for the sake of argument that this
Court finds that in camera review is warranted, such a review should be limited to
determining whether Section 7(1)(f) applies to the recommended finding portion of CRs.
E.

Redacting the Requested CRs Would Not Be Unduly Burdensome

Defendants argument that it would be unduly burdensome for them to redact the
identifying information about complainants and witnesses from the CRs of the five
Chicago police officers fails on two grounds.18 First, Defendants greatly exaggerate the
time necessary to redact the requested CRs. Second, the public interest in records related
to police misconduct far outweighs any burden of production. See 5 ILCS 140/3(g).
1.

Defendants Overstate the Time Necessary to Redact the CRs

Defendants assert that it would take approximately 362.5 hoursapproximately

nine weeks of full-time work to make the required redactions to the CRs. Defs. Br. 37.
But they have exaggerated their burden by using inaccurate and irrelevant estimates of
(1) the number of CRs at issue, (2) the number of pages in each CR, and (3) the amount
of time it takes to redact each page.
Although Mr. Kalven disagrees with Defendants estimate, no genuine dispute of
fact exists that would prevent the grant of summary judgment to Kalven because, as set
forth below, Defendants have not met their threshold burden of producing competent and

18

Defendants make no argument at all that the production of the Repeater Lists poses an
undue burden on the CPD, as their production requires no significant effort.
27

probative evidence of their purported redaction burden. See Ill. Educ. Assn v. Ill. State
Bd. of Educ., 204 Ill.2d 456, 464 (2003) (an agency that seeks to withhold requested
information pursuant to a Section 7 exemption must provide a detailed justification for
its claim of exemption, addressing the requested documents specifically and in a manner
allowing for adequate adversary testing) (emphasis in original).
The numbers Defendants use to arrive at their estimate of over 300 hours of work
are not based on the actual CRs at issue in this litigation. Instead of pulling the complaint
histories of the five Bond officers to determine exactly how many CRs are at issue
something that would have been easy to doDefendants simply assert that Plaintiffs
request includes nearly 200 CR files and that each of those 200 files include, on
average, 87 pages. Defs. Br. 36-37. But Defendants have provided no evidentiary basis
whatsoever that the five Bond officers, whose files are at issue, accumulated this many
CRs. In fact, the 200 figure comes out of thin air. Their citation to the recordC.
1999is a page from their summary judgment brief, in which they simply claimed,
without any citation, that there are nearly 200 CR files at issue. Indeed, months earlier,
Defendants asserted without any evidentiary support in their amended memorandum in
support of summary judgment that the five officers accumulated over 400 CR files.
App. A86, Defs. Am. SJ Mem. at 5. Pulling numbers out of thin air cannot substitute for
actual evidence, which Defendants fail to produce.
Even disregarding Defendants sleight of hand, their estimates are still unreliable
because they were calculated from a small sample of CR files drawn from Plaintiffs
original request for the CRs of seventeen officers. In other words, it is probable that none

28

of the sample CRs used to calculate Defendants claimed averages belongs to any of the
five Bond officers at issue.
Defendants estimate that it would take them 1.25 minutes per page to redact the
CRs at issue in this case is equally unreliable. This figure is based on an experiment
conducted by an attorney for the Defendants who redacted three random CR filesfiles
that may not even belong to any of the five officers whose CRs Plaintiff has requested.
Moreover, the amount of time it took this particular attorney to redact these files is not at
issue in this case, since she would not be responsible for redacting the CRs Mr. Kalven
has requested. That duty would fall to CPD personnel within its Office of Legal Affairs
who regularly redact CRs before producing them to attorneys in civil rights police
misconduct litigation, and who have already redacted the CRs of the five Bond officers in
the course of federal litigation. Thus, this particular City attorneys experience with just
three random CRs does not establish that redaction of the CRs at issue here will take 1.25
minutes per page, nor does it meet Defendants burden of proof of addressing the
requested documents specifically. Ill. Educ. Assn, 204 Ill. 2d at 464.
In contrast, Mr. Kalven has offered reliable evidence that the redaction of CR files
takes far less time than Defendants have estimated. With regard to the number of pages in
each CR, Mr. Futterman, who has reviewed over one thousand CRs of Chicago police
officers charged with official misconduct, attests that the files average about 50 pages in
length. App. A338-39, Futterman Aff. 9. As to the amount of time it takes to redact each
CR, Mr. Kalven presented the affidavit of Daniel Stroik, a University of Chicago law
student who was part of a team of students that performed redactions of confidential
information from nearly 200 CRs. R. 933-35, Stroik Aff. Mr. Stroik attested that, after he

29

read a few of the files in order to become familiar with them, it took him less than 30
seconds a page on average to redact a CR. Id. Thus, if Defendants unsupported statement
that the five officers accumulated 200 CRs were correct, Kalven estimates that it would
take approximately 83.3 hours (200 CR files,19 50 pages per file, 30 seconds per page) to
make the necessary redactions. This considerable discrepancy between Defendants
estimate and Mr. Kalvens reliable evidence shows that Defendants numbers simply
cannot be accepted on their face.
Moreover, Defendants further exaggerate their burden by misstating the type of
information that can be redacted from CR files. Citing to the Attorney Generals FOIA
Guide for Law Enforcement, they list six categories of information which they claim can
be redacted. Defs. Br. 35 n.7. While Mr. Kalven agrees that Defendants may redact the
identifying information of complainants and third-party witnesses, personal information
of police officers (social security numbers, birth dates, personal health information, and
home address and phone numbers), and medical records, the AGs Guide does not
support redacting the other broad categories of information contained in Defendants list,
particularly narratives where disclosure would constitute an unwarranted invasion of
personal privacy and any other information that would constitute an unwarranted
invasion of personal privacy. Furthermore, as noted in Section I.D., supra, Defendants
assertion that Kalven concedes that redactions could be made to portions of CRs
pursuant to Section 7(1)(f) is false. See Defs. Br. 35-36. Mr. Kalven has made no such
concession.

19

As set forth above, there is no evidentiary basis for Defendants claim that there are
200 CR files at issue; it is possible that this number is far less.
30

2.

The Substantial Public Interest Outweighs the Burden

Associated With Redacting the CRs

Even if Defendants estimates were accurate, which they are not, they completely
neglect the governing test under FOIA for determining whether the effort required
constitutes an undue burden. Whether Mr. Kalvens request is unduly burdensome
depends on the outcome of a balancing test: the extent of the burden weighed against the
public interest of the information. Defendants ask this Court to find that the burden
imposed by Kalvens request is undue without considering the nature of the public
interest at stake. Indeed, Defendants only mention of the public interest in their entire
brief is to blithely assert that the public interests in disclosure of CR files . . . are beside
the point. Defs. Br. 28. But FOIA requires this Court to take the public interest in the
requested information into account, and to order disclosure unless the agencys burden
outweighs the publics interest. Section 3(g) states, in relevant part:
Requests calling for all records falling within a category shall be complied with
unless compliance with the request would be unduly burdensome for the
complying public body and there is no way to narrow the request and the burden
on the public body outweighs the public interest in the information.
5 ILCS 140/3(g) (emphasis added).
In National Association of Criminal Defense Lawyers v. Chicago Police
Department, 399 Ill.App.3d 1 (1st Dist. 2010) (NACDL), in which the plaintiff made a
FOIA request for data from a study of the Chicago Police departments eyewitness
identification procedures, this Court weighed the public interest against the burden on the
Chicago Police Department, and held that several weeks of full-time work by [CPD]
personnel was not sufficiently burdensome to outweigh the important public interest in
the requested information. Id. at 17. The Court took careful note of the degree of public
interest in that information, and concluded that that interest was significant. Id. at 1531

17. The Court accepted at face value Defendants claimed burden: Chicago and Joliet
asserted that it would take them 170 and 197 hours, respectively, to redact the requested
police files. Id. at 7. After balancing the claimed burden against the significant public
interest, the Court concluded that the burden on the police agencies of redacting any
identifying information is not so excessive that it outweighs the vital public interest in the
disclosure of these documents. Id. at 17.
Similarly, in Bowie v. Evanston Community Consolidated School District 65, 168
Ill.App.3d 101 (1st Dist. 1988), this Court acknowledged that a FOIA request for test
scores would require the school district to change thousands of [computer] entries in
order to scramble the records to protect students privacy. Id. at 111. Despite this, the
public interest in comparing test scores of public school students of various races
outweighed this burden on the school district; the fact that defendants will have to
expend valuable labor and computer time to comply with plaintiffs request does not
impose a burden on defendants outweighing the public interest in the information. Id.
In the present case, as explained in Mr. Kalvens opening brief, the requested
records of police misconduct are of profound public interest. Kalven Br. 18-22. As in
NACDL, the subject matter of this FOIA request has garnered nationwide attention on an
issue of vital importance to our criminal justice system, and is clearly a subject of
significant public interest. 399 Ill.App.3d at 17. And in fact, if the Defendants estimate
of the number of CR files at issue is accurate, the public interest is even more significant;
the Citys obligation to produce records of police misconduct is not relieved simply
because there is so much misconduct that it would take a substantial amount of time to
produce those records. The public interest in the conduct and discipline of five police

32

officers who have purportedly racked up nearly 200 complaints between them and have
engaged in a pattern of brutal abuse can hardly be overstated.
The extent of the burden of disclosure, on the other hand, remains a contested
question of fact. If the five officers have amassed 200 citizen complaints of official
misconduct, then redaction of the requested CR files would take no more than 84 hours.
Such an effort pales when compared to the public interest at stake. Even if viewed in the
light most favorable to Defendants, however, the existing record demonstrates that the
public interest far outweighs the minimal burden of production here. As Northern District
of Illinois Chief Judge Ruben Castillo emphasized, police abuseone of the ultimate
lose/lose situations in our democratic societywill not abate without exposure to
public debate and media scrutiny. Doe v. Marsalis, 202 F.R.D. 233, 238 (N.D. Ill. 2001).
What was true in NACDL remains true here: several weeks of full-time work by [CPD]
personnel is insufficiently burdensome to outweigh the important public interest at
stake. 399 Ill.App.3d at 17.
II.

The Circuit Court Correctly Ruled that Defendants Must Produce the
Repeater Lists
The circuit court appropriately granted Mr. Kalven summary judgment on the

Bond and Moore Repeater Lists. The Bond Repeater Lists name Chicago police officers
who received the most complaints of official misconduct against them between 2001 and
2006. App. A336-37, Futterman Aff. 4-6. The Moore Repeater Lists identify: (1)
Chicago police officers who received more than five citizen complaints from May 2002
to December 2008; and (2) officers who were accused of excessive force more than five
times from May 2002 to December 2008. App. A357-58, Taylor Aff. 2-3.

33

In granting Mr. Kalven summary judgment on the Repeater Lists, the circuit
court: (1) rejected Defendants argument that the Lists are not CPD documents; (2)
rejected Defendants claim that the Lists are exempt as work product under Exemption
7(1)(m); (3) declined Defendants invitation to invent a new FOIA exemption for
documents produced pursuant to protective orders in civil discovery; and (4) ruled that
Defendants waived any argument that the Lists are exempt under amended Section
7(1)(n), the adjudicatory exemption. App. A5-6, A9. Defendants have abandoned the sole
claim to a FOIA exemption that they made belowthat the Repeater Lists should be
exempted in the spirit of FOIAs work product exemption contained in Section
7(1)(m). App. A164, A180, Defs. Summ. J. Resp. 16.20 However, they continue to press
their other three arguments on appeal.
Defendants appellate arguments disregard two fundamental principles of FOIA:
(1) FOIA defines public records broadly to include records created, prepared, received
by, used, possessed, or controlled by a public agency; 5 ILCS 140/7(2)(c), and the
Repeater Lists indisputably meet this definition; and (2) the exemptions listed in
Section 7 are the only exemptions to FOIA and are to be narrowly construed. See 5 ILCS
140/1; Stern, 233 Ill.2d at 411. Any public records not covered by one of the enumerated
exemptions, such as the Repeater Lists, are simply not exempt. Defendants also ignore
the Seventh Circuits express ruling that nothing in the federal protective orders prevents

20

The Repeater Lists are clearly not work product within any reasonable definition of the
term: they were not prepared in anticipation of litigation; they were not prepared to
develop a winning strategy in a lawsuit. Waste Mgmt., Inc. v. Intl Surplus Lines Ins. Co.,
144 Ill.2d 178, 198 (1991). Rather, they were retrieved from databases kept in the
ordinary course of business for production to an opposing party in response to discovery
requests. App. A355, Kivel Aff. 2-3; App. A359, Muzupappa Aff. 2.
34

production of the Repeater Lists pursuant to FOIA. Finally, Defendants ignore that the
circuit court acted within its discretion when it found that Defendants waived an
argument they had never raised in the summary judgment proceedings or at any other
point in two years of litigation.
The circuit court correctly applied these FOIA principles, the Seventh Circuits
ruling, and settled waiver doctrine to hold that Repeater Lists are public records of the
CPD that must be produced pursuant to FOIA. That decision should be affirmed.
A.

The Repeater Lists are the CPDs Public Records

FOIAs definition of public records leaves no room for doubt that the Repeater
Lists are public records of the CPD. FOIA defines public records as follows:
all records, reports, forms, writings, letters, memoranda, books, papers, maps,
photographs, microfilms, cards, tapes, recordings, electronic data processing
records, electronic communications, recorded information and all other
documentary materials pertaining to the transaction of public business, regardless
of physical form or characteristics, having been prepared by or for, or having
been or being used by, received by, in the possession of, or under the control of
any public body.
5 ILCS 140/7(2)(c) (emphasis added).
The CPD retrieved the Bond and Moore Repeater Lists from a CPD database
concerning police misconduct complaints for production to plaintiffs counsel during
civil discovery in the Bond and Moore federal civil rights cases. App. A336-37,
Futterman Aff. 4-6; App. A357-58, Taylor Aff. 2, 4-5; App. A355, Kivel Aff. 2-3.
Chicago Police Sergeant Daniel Kivel queried the CPD database to retrieve the lists of
officers who accumulated the most citizen complaints of misconduct. App. A355, Kivel
Aff. 2-3. Per the order of the circuit court below, the CPD presently maintains a copy of
the Repeater Lists in its lawyers offices for ease of production in this case. App. A336,
Futterman Aff. 11-12; R. 931, Agreed Order to Preserve.
35

Defendants do not contest that the CPD prepared and maintained the Bond and
Moore Repeater Lists. Nor do they dispute that the CPD continues to possess and control
the Lists.21 The Repeater Lists would be the CPDs public records if the CPD had only
prepared them. But here, the CPD prepared, used, possesses, and controls the Repeater
Lists. By any reading of FOIA, the Lists are thus public records of the CPD.
The public records inquiry should end there. However, Defendants spin from
whole cloth a nonexistent requirement for public records under FOIA. Defendants
argue that the Repeater Lists are not public records because, they claim, the Lists were
not maintained by CPD in the regular course of its business. Defs. Br. 42. But the
definition of a public record does not include a requirement that the records must be
maintained in the ordinary course of business. It requires only that the CPD prepare, use,
possess, or control the Lists. Defendants effort to import a new requirement into the
definition of public records contradicts FOIAs express definition of that term.
Moreover, their effort cannot be squared with the General Assemblys instruction to
interpret public records expansively to fulfill FOIAs purpose to provide citizens with
information about the affairs of their government. Stern, 233 Ill.2d at 410-11.22

21

Defendants have abandoned their claim below that the Bond Repeater List is not under
the CPDs control because the CPD gave the List to its lawyers in Chicagos Law
Department. And rightly so. A client cannot hide documents simply by giving them to its
lawyers. Documents furnished to an attorney by a client belong to the client. See Ill.
Rules of Profl Conduct R. 1.15(b), (d); IL Adv. Op. 94-14, 1995 WL 874716, at *1
([T]he client's right to access to other types of file material extends to both active and
inactive files.). See also Pierce v. MacNeal Memorial Hospital Assn, 46 Ill.App.3d 42,
50 (1st Dist. 1977) (an attorney is an agent of his client). Defendants also admit that the
CPD maintains and controls the Moore Repeater Lists in PDF form on CPDs computer
system. App. A357, Taylor Aff. 7; R. 914-15, Kivel Dep. 81-82.
22

In any event, the CPD does in fact maintain the Repeater Lists in the ordinary course of
business. The CPD retrieved the Bond and Moore Lists from its Complaint Register
36

Additionally, Defendants claim that the Lists are not public records because FOIA
is not intended to create an obligation on the part of any public body to maintain or
prepare any public record which was not maintained or prepared by such public body at
the time when this act becomes effective. Defs. Br. 43 (citing 5 ILCS 140/1). But FOIA
did not create the obligation to maintain or prepare the Repeater Lists. Defendants
themselves concede this when they assert that the Lists were produced to respond to
discovery requests in federal litigation, and not in response to a FOIA request. Defs. Br.
43. Mr. Kalvens FOIA request did not require the CPD to create anything.23
B.

Defendants are Not Relieved of Their Duty to Disclose the Repeater

Lists Because They Were Subject to Protective Orders in Federal
Litigation
1.

The Federal Court of Appeals Made Clear that the Civil

Protective Orders Cited by Defendants Do Not Prevent
Production of the Repeater Lists Under FOIA

Defendants argue that the Repeater Lists are exempt from disclosure under FOIA
because they were subject to protective orders in civil discovery. Defs. Br. 42-46. But
they fail to mention anywhere in their fifty-page appeal that the Seventh Circuit expressly
ruled that the federal protective orders cited by Defendants do not relieve the CPD of the
duty to disclose the Repeater Lists under FOIA. Bond v. Utreras, 585 F.3d 1061, 1076

Management System database, an electronic database of information regarding

complaints of official police misconduct, which CPD maintained in its ordinary course of
business. App. A355, Kivel Aff. 2-3;App. A60, Defs. Answer 24; App. 359,
Muzupappa Aff. 2; App. 336, Futterman Aff. 6.
23

Moreover, even the civil discovery requests in Bond and Moore did not require
Defendants to create any document that they did not already maintain. The CPD
retrieved the Repeater Lists from an electronic database that it maintained, independent
of its obligations under FOIA. And electronic records are treated no differently under
FOIA than paper records. See 5 ILCS 140/2, 140/5.
37

n.10 (7th Cir. 2009). Defendants omission is particularly telling, because the circuit
court relied directly on the Seventh Circuits decision when it ruled that the production of
the Repeater Lists is not contrary to the protective orders as asserted by Defendants.
App. A5-6. In the Bond case itself, the Seventh Circuit could not have been more clear
that the [Bond] protective order does not interfere with Kalven's ability to try to obtain
the documents he seeks directly from the City under the Illinois FOIA. . . . [N]othing in
the protective order here prohibits the City from disclosing any of its police department
records to the public upon request. Bond, 585 F.3d at 1076 n.10. The circuit court
correctly found that Defendants argument cannot be squared with the Seventh Circuits
explicit ruling. App. A5-6.
Defendants insinuate that because Mr. Kalvens lawyers represented the plaintiffs
in Bond and Moore, the pursuit of the Repeater Lists through Illinois FOIA is an end run
around the protective orders. See Defs. Br. 44. Nothing could be further from the truth.
Mr. Kalven sought direct access to the documents in federal court by requesting to
intervene in Bond. R. 2412, Bond v. Utreras, No. 04 C 2617, 2007 WL 2003085, at *1
(N.D. Ill. July 2, 2007). The federal district court granted Mr. Kalvens motion and held
that the City failed to show good cause to hide the Bond Repeater Lists from the public.
Id. at *3-4. On appeal, the Seventh Circuit denied Mr. Kalven access to the documents on
standing grounds only (as the case had been settled and closed), and directed that he may

38

seek them through Illinois FOIA. Bond, 585 F.3d at 1076 n.10, 1079-80.24 Mr. Kalven
then pursued the Repeater Lists through FOIA, as the Seventh Circuit had suggested.
The circuit court was also correct to find that the Seventh Circuits ruling applies
equally to the Moore Repeater Lists because the Moore protective order is substantially
similar to the Bond order in its relevant characteristics. App. A5-6. Defendants
arguments about the particular circumstances in which the Moore lists were produced are
unavailing. Defs. Br. 43-44. Defendants imply that Judge Gettleman ruled that the public
does not have a right to the Moore Lists under FOIA. Id. But this is a mischaracterization;
Judge Gettleman offered no opinion on the publics right to the lists under FOIA. That
issue was not before the court. The Court only decided the limits of the civil rights
plaintiffs use of the documents produced in discovery in that case. R. 798-799, Moore
Protective Order (This Order governs all discovery related to the exchange or
dissemination of information or the production of documents.)
Just like the federal civil discovery order in Bond, the Moore protective order has
no bearing on the public right to the Repeater Lists under FOIA. Judge Gettleman noted
that the Lists would be produced under protection to highlight the absurdity of thenSuperintendent Weiss position concerning officer privacynot, as Defendants claim,
to assure Weis that the lists would remain confidential until the end of time. See Defs.
Br. 43.25

24

The Seventh Circuit also did not question the district courts ruling that the Repeater
Lists and CRs should not have been protected in the first instance. R. 2412, Bond, 2007
WL 2003085, at *3.
25

Judge Gettleman expressed his incredulity toward former Supt. Weiss position in the
following passage: [I]t still came down to a very clear and willful decision on your part
39

Any attempt to ascribe Defendants claimed interpretation to Judge Gettlemans

comments is belied by his opinion in Henry v. Centeno, No. 10 C 6364, 2011 WL
3796749 (N.D. Ill. Aug. 23, 2011), R. Supp. 70, another case that involved claims of
misconduct against Chicago police officers. In denying the Citys request for a protective
order to keep records related to police misconduct from the public, Judge Gettleman
expressly rejected the CPDs claim that CRs should be kept confidential to safeguard
officer privacy. Id. at *4-5. The Court explained that because police misconduct
complaints bear on an officers public duties, disclosure does not invade the officers
personal privacy. Id. In so ruling, Judge Gettleman emphasized that state FOIA rulings
should not be confused with a federal courts decision under the federal discovery rules:
The court must take care not to conflate rules regarding a universal public right to know
with rules regarding a litigants right to disseminate. Such conflation, like any other
Pavlovian-type generalization, is likely to generate an overly simplistic answer to the
more precise question posed in a particular case. Id. at *3 (internal quotations and
citations omitted).
Civil protective orders and Illinois FOIA serve distinct purposes, and operate
entirely differently. Protective orders govern the exchange of information in civil

as expressed in your own pleadings, which when I got it, I had to read it three or four
times before I actually understood what you were saying, because Ive never seen
anything quite like it, that you cannot comply with an Order of the Court. . . One who
elects to serve mankind by taking the law into his own hands thereby demonstrates his
conviction that his own ability to determine policy is superior to democratic decision
making . . . his professed unselfish motivation rather than a justification actually
identifies a form of arrogance which organized society cannot tolerate. R.Supp. 29, 34,
36, Transcript of Proceedings, Moore v. City, 07 C 5908 (Mar. 9, 2009), at 6, 8 (internal
quotation marks omitted).

40

discovery in particular instances of litigation, while FOIA provides the public with access
to government records, except when those records fall within specific exemptions. In
contrast to these narrowly drawn and individually enumerated FOIA exemptions,
requests for protective orders uniquely fall within the extraordinarily broad range of
discretion invested in judges by the Federal Rules of Civil Procedure. Sommerfield v.
City of Chicago, 251 F.R.D. 353, 355 (N.D. Ill. 2008). The protective orders in Bond and
Moore were meant to facilitate the exchange of information in the course of those
particular cases, not to permanently hide the information contained in the Lists from the
public.
Moreover, in many cases, a party seeking discovery has no need or incentive to
object to a protective order, since those orders typically allow the party to fully use the
protected information in that litigation. See Arthur R. Miller, Confidentiality, Protective
Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 492 n.2 (1991) (noting
that while judges should guard against routinely granting protective orders, [w]hen all
the parties support the protective order or seal, as often is the case when the defendant
seeks confidentiality and the plaintiff wants to facilitate its own access to discovery
materials, the court is faced with an essentially non-adversarial situation). Because
parties and courts will understandably want to avoid litigating collateral issues, it is to be
expected that many records whose disclosure would be required by FOIA will
nonetheless be subject to protective order in litigation. See id. The protective order in
Bond was entered as an agreed order for these reasons. If public agencies could exempt
records under FOIA simply because they were part of a protective order in a lawsuit, they
could conceivably use a protective order in a single civil case to permanently secrete

41

public records they would otherwise be required to disclose. Defendants conflation of

orders governing civil discovery with statutory exemptions to FOIA, the exact
Pavlovian-type generalization identified by Judge Gettleman as problematic, would
lead to results that clash with FOIAs very purpose. Henry, 2011 WL 3796749, at *3.
2.

FOIA Does Not Exempt Documents Produced Under a

Protective Order From Production

FOIA does not provide any basis for exempting the Repeater Lists. Section 7
provides the exhaustive list of exemptions to FOIA, and there is no exemption for
documents produced in civil discovery under protective orders. FOIA requires that
records must fall into an enumerated exemption to relieve a public agency from its duty
to disclose them. See 5 ILCS 140/3(a) (requiring the disclosure of all public records,
except as otherwise provided in Section 7 of this Act). Without an explicit statutory
exemption under Section 7 of FOIA, Defendants lack any legitimate basis for exempting
the Lists from production.
Contrary to this fundamental FOIA principle and to FOIAs directive that the
statutory exemptions from disclosure must be read narrowly, Stern, 233 Ill.2d at 411,
Defendants attempt to invent a new FOIA exemption for documents produced under
protective order. They rely on a single case that is entirely inapposite here, Bluestar
Energy Services, Inc. v. Illinois Commerce Commission, 374 Ill.App.3d 990 (1st Dist.
2007). In Bluestar, this Court held that a settlement agreement is not subject to disclosure
under FOIA. Id. at 995-96. Defendants mischaracterize the case as turning on assurances
of confidentiality given in the course of discovery. Defs. Br. 45. Defendants fail to
mention that the settlement agreement fell squarely into FOIAs trade secrets exemption,
5 ILCS 140/7(1)(g), which the Court noted was intended to prevent FOIA from
42

discourag[ing] private parties from doing business with the State. Bluestar, 374
Ill.App.3d at 995. Defendants have not asserted that the protective orders make the
Repeater Lists eligible for this or any other exemption.
The circuit courts holding is correct: because Defendants do notand cannot
assert any such exemption, they must produce the Lists.
C.

Defendants Waived the Argument that Section 7(1)(n) Applies to the

Repeater Lists

The circuit court correctly held that Defendants waived any argument that
information in the Bond and Moore Lists is exempt under Section 7(1)(n) of FOIA,
because they failed to make any such argument at summary judgment. App. A9.
Defendants now seek to reverse this decision first by pointing to a broadly worded
heading in their summary judgment brief and then offering a series of policy arguments
in the hope that this Court will overlook their waiver. Both tactics fail.
First, in two years of litigation and in their nearly forty pages of briefing on
summary judgment, Defendants never made any argument that Section 7(1)(n) of Illinois
FOIA exempts the Repeater Lists. Defendants raised this theory for the first time in their
motion to reconsider the lower courts summary judgment ruling. App. 212-14. But it is
well-settled that one may not raise a legal theory for the first time in a motion to
reconsider. Holzer v. Motorola Lighting, Inc., 295 Ill.App.3d 963, 978 (1998).26

26

See also People v. Teran, 376 Ill.App.3d 1, 7 (2d Dist. 2007) (Generally, a motion to
reconsider may not properly raise a new legal theory or factual argument.); N. River Ins.
Co. v. Grinnell Mut. Reinsurance Co., 369 Ill.App.3d 563, 572 (1st Dist. 2006) ([I]t is
not proper to raise a new legal theory or factual argument in a motion for rehearing and,
thus, waiver applies to the parties with respect to this legal issue.).
43

Second, Defendants appeal to policy considerations ignores the fundamental

policy and purpose underlying Illinois waiver doctrine. As the Supreme Court explained,
requiring litigants to preserve issues by raising them before a motion to reconsider
motivates them to save the delay and expense caused by further litigation. People v.
Heider, 231 Ill.2d 1, 18 (2008). Moreover, a circuit courts decision to find waiver is
afforded a great deal of deference. Here, the circuit court did not abuse its discretion in
finding that Defendants waived their untimely argument; its decision should therefore be
affirmed.
1.

The Circuit Courts Finding of Waiver is Reviewed for Abuse

of Discretion

Contrary to Defendants argument for de novo review, the circuit courts waiver
ruling may be overturned only for abuse of discretion. See Holzer, 295 Ill.App.3d at 978
(applying abuse of discretion standard to the review of a circuit courts waiver ruling);
River Vill. I, LLC v. Cent. Ins. Companies, 396 Ill.App.3d 480, 494 (1st Dist. 2009)
(same). Abuse of discretion will be found only when the lower courts decision is
arbitrary, fanciful or where no reasonable person would take the view adopted by the
trial court. People v. Raymond, 404 Ill.App.3d 1028, 1045 (1st Dist. 2010) (citing
People v. Illgen, 145 Ill.2d 353, 364-65 (1991)).
Defendants argument for de novo review is based on a misinterpretation of wellsettled waiver jurisprudence. It conflates the initial decision to find waiver with the
review of that decision on appeal. It is true that courts making an initial waiver
determination have the discretion to overlook waiver when unique circumstances exist,
such as when the failure to consider the issue would den[y] the defendant a fair and
impartial trial. See People v. Lann, 261 Ill.App.3d 456, 466 (1994). It is precisely
44

because of this discretion, however, that the circuit courts waiver decision is entitled to
deference on appeal: exercises of discretion are reviewed by appellate courts for abuse of
discretion. See, e.g., In re Marriage of Rife, 376 Ill.App.3d 1050, 1057 (2d Dist. 2007)
([T]he trial court's decision was discretionary and thus subject to deferential review.).
None of the cases Defendants cite in support of their position involve the review of a trial
courts initial waiver decision. See Defs. Br. 39-40. To allow courts to review waiver
determinations de novo would render waiver useless, since a finding of waiverintended
to reduce undue delay and expense, Heider, 231 Ill.2d at 18would inevitably result in
further litigation over the waiver holding itself.
Defendants cite Kopchar v. City of Chicago, 395 Ill.App.3d 762, 769-70 (5th Dist.
1999) for the proposition that the usual waiver rule does not apply in FOIA cases, and
that this Court should consider Defendants waived arguments de novo. Defs. Br. 41.
However, Kopchar held no such thing. Kopchar held that a public agency does not waive
a claim to an exemption by failing to cite the claimed exemption in its response to a
FOIA request; it did not eliminate fundamental waiver principles that apply in FOIA
litigation when parties fail to raise arguments before a trial court and then attempt to do
so in a motion to reconsider or on appeal. Kopchar, 395 Ill.App.3d at 770. Indeed,
Kopchar affirmed the settled principle that FOIA defendants must provide a detailed
justification for any exemption before the circuit court. Id. The defendant in Kopchar
raised its arguments with sufficient detail in the circuit court to prove its entitlement to
an exemption from FOIA. Id. Unlike the situation in Kopchar, Defendants failed to raise
their Section 7(1)(n) Repeater List arguments at any point before the circuit court entered
summary judgment against them. The FOIA statute does not erect any limitations on the

45

circuit courts ability to find waiver here. See, e.g., Nelson v. Cnty. of Kendall, 2013 IL
App (2d) 120635, 9 (finding an argument waived for failure to cite to authority in a
FOIA case).
The question on appeal is not whether this Court in the first instance should find
that Defendants waived their 7(1)(n) Repeater List argument. It is whether the circuit
court abused its discretion in finding that Defendants did so.
2.

Prior to their Motion to Reconsider, Defendants Never Made

the Argument that Section 7(1)(n) Applies to the Repeater
Lists

During summary judgment, Defendants never made the argument that Section
7(1)(n) exempted the Repeater Lists from production. As the circuit court observed, a
simple review of Defendants summary judgment pleadings belies their claim to the
contrary. App. A9. At summary judgment, Defendants offered three arguments to keep
the Repeater Lists hidden from public view: (1) the CPD no longer has control over the
Bond Repeater Lists because it gave them to its attorneys, App. A98-99, Defs. Summ. J.
Mem. 17-18; (2) the Lists are protected as attorney work product, App. A99, Defs.
Summ. J. Mem. 18; and (3) the Lists were produced to other plaintiffs in civil rights
litigation under a protective order, App. A99-100, Defs. Summ. J. Mem. 18-19.
Defendants made five different arguments that CRs were exempt under FOIA, including
that they were exempt under the amended 2010 FOIA version of Section 7(1)(n), the
adjudicatory exemption. App. A87-98, Defs. Summ. J. Mem. 6-17.27

27

Defendants addressed the issue of Section 7(1)(n)s applicability on pages 7 through 9

of their opening summary judgment brief, and only discussed its application to CRs.
Where Defendants sought to address the Repeater Lists, elsewhere in their pleadings,
they referred to them explicitly. See e.g., App. A98-100, Defs. Summ. J. Mem. 17-19
(claiming the litigation lists are exempt from production).
46

The later summary judgment briefs are further proof that Defendants never sought
to apply Section 7(1)(n) to the Lists. In his response to Defendants opening summary
judgment brief, Mr. Kalven summarized Defendants arguments, specifically separating
their arguments applying to the Repeater Lists from those applying to the CRs. App.
A131-32, A143-57, Pl.s Summ. J. Mem. 2-3, 14-28. Mr. Kalven expressly stated that
Defendants argued that amendments to the 2010 FOIA applied only to CRs. App. A13132, Pl.s Summ. J. Mem. 2-3. Having received this brief, Defendants filed a reply, and
again argued that amended Section 7(1)(n) exempted the requested CRs. App. A167-172,
Defs. Summ. J. Reply 3-8. However, they never argued that Section 7(1)(n) applied to
the Repeater Lists nor contested Kalvens characterization of their arguments. See App.
A167-172, A179-81, Defs. Summ. J. Reply 3-8, 15-17.
The circuit courts summary judgment ruling addressed every argument that
Defendants made with regard to the Repeater Lists and addressed Section 7(1)(n)s
application to the CRs; the court, correctly, did not address the application of Section
7(1)(n) to the Repeater Lists because that issue was never raised.
Having forfeited the argument that Section 7(1)(n) applies to the Repeater Lists,
Defendants now ask the Court to apply a contorted reading of their summary judgment
briefs. Defendants claim that because their arguments about Section 7(1)(n)despite
referring only to CRscame under a heading that mentions both CRs and Repeater Lists,
the arguments applied to both types of documents. Defs. Br. 39.28 Yet they cannot point

28

The title to the heading of Section 1 of Defendants summary judgment memorandum

reads, THE CRS AND LITIGATION LISTS ARE EXEMPT FROM PRODUCTION.
App. A87.
47

to any actual argument within their summary judgment briefs that Section 7(1)(n) applies
to the Lists.
In order to preserve arguments, litigants may not simply hint at them; they must
develop them sufficiently to put the opposing party and the court on notice. See Sobczak
v. Gen. Motors Corp., 373 Ill.App.3d 910, 924 (1st Dist. 2007) (holding that the lack of
development of an issueeven one that is explicitly addressed in a briefleads to the
waiver of the issue).29 Defendants reference to a single general heading that did not
even mention Section 7(1)(n) is clearly insufficient to establish that they preserved the
unarticulated argument. The placement and wording of a heading in a brief is insufficient
to preserve an argument when the substance of the brief ignores it entirely. See United
States v. Hassebrock, 663 F.3d 906, 914 (7th Cir. 2011) (finding a single passing
reference insufficient to raise an argument). Defendants attempt to recast their argument
here cannot make up for their failure to raise the argument when it counted. Their
distorted reading of their summary judgment pleadings does not even qualify as a hint,
much less the development of an argument sufficient to put the circuit court and Mr.
Kalven on notice.
Furthermore, Defendants arguments are particularly weak in the context of a
FOIA dispute, where the requirements for raising an exemption argument are stringent. In

29

See also Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) ([E]ven
arguments that have been raised may still be waived on appeal if they are
underdeveloped, conclusory, or unsupported by law.); In re Aimster Copyright
Litigation, 334 F.3d 643, 656 (7th Cir. 2003) (concluding that arguments made but not
developed do not preserve issues); Kensington Rock Island Ltd. Partnership v. American
Eagle Historic Partners, 921 F.2d 122, 124-255, 124 n.1 (7th Cir. 1990) (holding that a
single statement in an unrelated section of a memorandum is insufficient to raise an
argument).
48

FOIA actions, records are presumptively subject to disclosure; the government must
prove that specific documents fit within their claimed statutory exemptions. See Ill. Educ.
Assn, 204 Ill.2d at 464. To qualify for an exemption, the agency must provide a
detailed justification for its claim of exemption, addressing the requested documents
specifically and in a manner allowing for adequate adversary testing. Id. (internal
quotation marks omitted). One broadly worded section heading in a summary judgment
brief does not approach the detailed justification required to claim an exemption from
FOIA.
3.

The Circuit Court Did Not Abuse its Discretion in Refusing to

Consider Arguments that Defendants had Waived

The circuit court was unquestionably within its discretion in refusing to allow
Defendants to raise new theories in their motion to reconsider. Perhaps because of the
force of the arguments for waiver here, Defendants spend only a single paragraph arguing
that they did not waive their argument that amended Section 7(1)(n) applies to the
Repeater Lists, and devote the rest of the section to arguing that the Court should
overlook their failure to raise the argument for policy reasons. Defs. Br. 39-41.
Defendants policy arguments for overlooking waiver are also weak on their face.
Because the circuit court, in deciding summary judgment, rightly rejected Defendants
argument that the Repeater Lists were exempt as work product under Section 7(1)(m),30
they offered an entirely new theory (that the Lists were protected by the 2010
adjudicatory exemption in amended Section 7(1)(n)) in their motion to reconsider. This is
precisely the sort of inefficient and unfair litigation tactic that the waiver doctrine is
30

See App. A5 (holding that it is clear that the Repeater Lists do not fall within the
exemption of Section 7(1)(m)).
49

designed to prevent. See e.g., People v. Lewis, 223 Ill.2d 393, 400 (2006) (noting that
[f]ailure to raise issues . . . casts a needless burden on the opposing litigant, and leads
to open-ended further proceedings); Graves v. N. Shore Gas Co., 98 Ill.App.3d 964,
969 (2d Dist. 1981) (To permit a change of theory on review would not only greatly
prejudice the opposing party but would also weaken our system of appellate
jurisdiction.).
Defendants claim that a waiver decision would affect cases beyond this one is
patently false. Defs. Br. 40. If FOIA requests involving other Repeater Lists arise,
Defendants will have every opportunity to raise any exemptions, including 7(1)(n), that
they think apply. It is appropriate and fair that the court blocked Defendants untimely
theories here. Mr. Kalven agrees that the production of lists of police officers who have
received the most citizen complaints of official misconduct is of substantial public
importance. Defs. Br. 40. But it does not follow from the publics great interest in the
production of the Repeater Lists that Defendants are excused from their obligation to
follow the basic rules of litigation necessary to the administration of justice. To the
contrary, the strong public interest in the Lists highlights the need to respect the circuit
courts decision on waiver to prevent further delay in the release of information that is
critical to the publics role in monitoring the police.
The record is clear: prior to their motion to reconsider, Defendants never made the
argument that Section 7(1)(n) applies to the Repeater Lists. It was not arbitrary or
fanciful for the circuit court to exercise its discretion to find that Defendants waived the
argument when they attempted to raise it for the first time in their motion to reconsider.
Raymond, 404 Ill.App.3d at 1045.

50

D.

2010s Substantive FOIA Amendments Creating Exemption 7(1)(n)

may not be Applied Retroactively in this Case to Repeater Lists

In addition to the fact that Defendants forfeited any argument that Section 7(1)(n)
exempts the Repeater Lists from production, newly enacted FOIA exemption 7(1)(n)
cannot be applied retroactively to the Repeater Lists for the same reasons that retroactive
application is impermissible with respect to the CRs. See Kalven Br. 22-27; Section I.A.,
supra. All of Mr. Kalvens claims in this case accrued in 2009. Substantive amendments
to FOIA enacted in 2010 may not be applied retroactively here. Id.; Caveney, 207 Ill.2d
at 92. Thus, Defendants waived argument is also barred by Illinois black letter law on
retroactivity.
E.

Repeater Lists Have No Relation to the Citys Adjudication of

Employee Grievances or Discipline and Thus Cannot Be Exempt
Under Section 7(1)(n)

Even if Defendants had not waived any argument that the 2010 FOIAs Section
7(1)(n) applies to the Repeater Lists, and even if Illinois rules on retroactivity did not
prevent the application of that substantive amendment to this case, Section 7(1)(n) would
not exempt the Lists from disclosure. Defendants argue that the Lists merely
summarize information contained within CRs, and are thus exempt for the same
reasons that they claim CRs are exempt. Defs. Br. 41-42. In doing so, they avoid any
analysis of the applicability of Section 7(1)(n) to the Lists themselves. Even a cursory
analysis of the issue reveals that Section 7(1)(n) does not apply to the Lists.
Section 7(1)(n) does not shield the Repeater Lists from disclosure for the simple
reason that the Lists do not relate to adjudications of disciplinary cases. Defendants
themselves concede that the Lists are never used or relied upon in any way in the
adjudicative process. Throughout this litigation, Defendants have repeatedly emphasized
51

that they retrieved the Repeater Lists only as a result of two particular civil plaintiffs
requests and court orders to disclose them; they have also emphasized that the City and
the Chicago Police Department do not use the Repeater Lists for any purpose, much less
to adjudicate discipline cases. See Defs. Br. 43-44; App. A86, A98-99, Defs. Summ. J.
Mem. 5, 17-18; App. A180-81, Defs. Summ. J. Reply 16-17; App. A219, Defs Mot. to
Reconsider 12. Indeed, Defendants claim that if not for these discovery demands and
federal court orders, these lists would not exist at all. Defs. Br. 43.
Because, as Defendants concede, Repeater Lists have no relation whatsoever to
the Citys adjudication of employee grievance or disciplinary cases, Defendants
contention that 7(1)(n) exempts Repeater Lists reaches new heights of implausibility.
Whereas FOIA requires that courts construe exemptions as narrowly as possible, Stern,
233 Ill.2d at 410-11 (citing 5 ILCS 140/1), Defendants ask this court to stretch the
meaning of relate to to hold that 7(1)(n) exempts documents that reveal nothing about
the Citys adjudicatory process. When we construe the FOIA exemption narrowly (as we
must), it is inconceivable that Repeater Lists should be kept from the public under
7(1)(n)s adjudicatory exemption.
To the extent Defendants offer any argument that the Repeater Lists are exempt
under Section 7(1)(n), it rests on their dubious claim that CRs are related to disciplinary
adjudications and hence are exempt. Their argument fails for three reasons.
First, 7(1)(n) does not exempt CRs. See Section I.C., supra.; Kalven. Br. 32-37.
The exemption is aimed at purely internal personnel matters, not public complaints about
the actions of police officers in their official capacities. See, e.g., R. 2312, Rangel, 2010
WL 3699991, at *6.

52

Second, even if we assumed contrary to the law that CRs are somehow exempt,
nothing in FOIA states that a document is exempt merely because it is derived from
exempt records. Analogously, a redacted document may be subject to disclosure even
when the unredacted document would be exempt. See Day, 388 Ill.App.3d at 79 (holding
that where a document contains some exempt information and some non-exempt
information, the non-exempt information should be released with the exempt information
redacted). See also Bowie, 128 Ill.2d at 380. (The mere presence or commingling of
exempt material does not prevent the district from releasing the nonexempt portion of the
record.).
Finally, Repeater Lists are even further removed from the adjudication of
employee grievances than CRs. Defendants have tried to characterize the Repeater Lists
as mere summaries of the information contained in CRs. That characterization is
misleading. CRs consist of investigative material, such as witness statements and
physical and documentary evidence, produced in the course of an investigation of a
citizen complaint. See R. 448, Duffy Aff. at 3-4; R. 456, Ritter Aff. at 3. By contrast,
Repeater Lists simply list the police officers with the most citizen complaints of
misconduct in the City.
As much of a stretch as it is for Defendants to claim that investigations of citizen
complaints of police misconduct relate to the adjudication of employee grievances and
disciplinary cases, it is pure fancy to contend that the disclosure of lists of officers with
repeated citizen complaints of misconduct that Defendants admittedly never use in
adjudications falls within the adjudication exemption. Defendants strained argument
cannot avoid the simple fact that lists of officers who accumulated the most misconduct

53

complaints from members of the publiclists that the Defendants admit were never used
for any disciplinary purposehave no relationship whatsoever to the adjudication of
employee grievances or disciplinary cases. 5 ILCS 140/7(1)(n).
F.

Neither Section 7(1)(f) Nor Section 7(1)(b) Apply to the Repeater Lists

For the first time in this litigation, Defendants argue that the deliberative process
exemption, 5 ILCS 140/7(1)(f), and the personal privacy exemption of the 2009 version
of FOIA, 5 ILCS 140/7(1)(b), apply to the Repeater Lists. These arguments have been
waived and are frivolous on the merits.
Arguments which are raised for the first time on appeal are waived. Pajic v. Old
Republic Ins. Co., 394 Ill.App.3d 1040, 1051 (1st Dist. 2009). Defendants claim that they
made these arguments in the circuit court, but a review of their summary judgment
pleadings proves them wrong. As set forth in Section II.C.2. above, Defendants made
only three arguments related to the Repeater Lists: (1) the CPD no longer has control
over the Bond Repeater Lists; (2) the Lists are protected as attorney work product; and
(3) the Lists were produced to other plaintiffs in civil rights litigation under a protective
order. Defendants did not argue that Section 7(1)(f) or Section 7(1)(b) applied to the
Repeater Lists. Defendants cannot ask this Court to reverse the circuit courts decision on
grounds that the circuit court was never asked to consider.
It is not surprising that Defendants devoted only three sentences of their brief to
arguing that these exemptions allow them to withhold the Lists, because, in addition to
being waived, these arguments are frivolous on the merits. As to Defendants Section
7(1)(f) argument, it is inconceivable that Repeater Lists of officers who have amassed the
most civilian complaints of misconduct in the City, Lists that Defendants stress that they

54

never use in the disciplinary process, could reveal anything about policymaking or
deliberative process.
Defendants personal privacy argument, which has already been rejected in
Watkins and Gekas (see Section I.B. above), is equally absurd. Civilian complaints of
police misconduct unquestionably bear on police officers public duties and
responsibilities. There is simply no good faith basis to argue that the fact, nature, dates
and final outcome of civilian complaints of police abuse reveal anything that is personal
or private.
III.

Mr. Kalven is Entitled to Attorneys Fees for the Successful Pursuit of CPD
Records
A.

The Circuit Courts Denial of Attorneys Fees Should Be Reviewed De

Novo

Defendants wrongly assert that the standard of review of the circuit courts denial
of fees should be for abuse of discretion, based on their contention that the fee award is
discretionary. Defs. Br. 47. However, the circuit court was not engaged in an exercise
of discretion when it erroneously denied fees for Mr. Kalvens successful work on the
Repeater Lists. As emphasized in Mr. Kalvens opening brief, the circuit court committed
errors of law in misinterpreting FOIAs statutory languagespecifically, the meaning of
substantially prevailed. Kalven Br. 43-44. The circuit courts misinterpretation of [a]
statute . . . is not an act of discretion to which courts of review will defer. Overend v.
Guard, 98 Ill.App.3d 441, 443-44 (4th Dist. 1981). The courts legal errors in
misconstruing the statute must be reviewed de novo. Melton v. Frigidaire, 346 Ill.App.3d
331, 334-35 (1st Dist. 2004) (construction of a statute, such as whether a plaintiff is a
prevailing party for purposes of a fee-shifting statute, is a purely legal question,
appropriately subject to de novo review.); Rock River Times v. Rockford Public School
55

Dist., 2012 IL App (2d) 110879, 27 (whether plaintiff newspaper was a prevailing party
for fee under FOIA is a matter of statutory interpretation entitled to de novo review).31
B.

Mr. Kalven Has Substantially Prevailed and Is Consequently Entitled

to Attorneys Fees

As Defendants acknowledge, under the operative fees provision, a FOIA plaintiff

has substantially prevailed for the purposes of attorneys fees if he demonstrates: (1)
that the prosecution of the action could reasonably be regarded as necessary to obtain the
information, and (2) that the action had a substantial causative effect on the delivery of
the information. Defs. Br. 47-48 (citing People ex rel. Ulrich v. Stukel, 294 Ill.App.3d
193, 202 (1st Dist. 1997)); see also Duncan Pub., Inc. v. City of Chicago, 304 Ill.App.3d
778, 786-87 (1st Dist. 1999) (a FOIA plaintiffs eligibility for attorneys fees is
primarily a question of causation, which may be answered by the agencys conduct in
processing the request).
The application of this test here is straightforward: (1) Defendants refused from
the beginning to produce the Repeater Lists, making Mr. Kalvens prosecution of this
case necessary to obtain them, and (2) Mr. Kalvens suit is what caused the trial court to
order Defendants to disclose the Lists. Defendants do not dispute either of these facts.
They simply refuse to apply the test because of its unavoidable result: Mr. Kalven
substantially prevailed when he won summary judgment on the Lists. The circuit court

31

See also In re Marriage of Murphy, 203 Ill.2d 212, 219 (2003) (the determination of
the meaning of substantially prevail for a fee award is a question of statutory
construction, which is a purely legal question) (citing Hamer v. Lentz, 132 Ill.2d 49,
57-63 (1989) (reviewing de novo the construction of the meaning of the attorneys fees
provisions of Illinois FOIA)).
56

committed an error of law in refusing to apply the Illinois test to determine Mr. Kalvens
eligibility for a fee award for his successful work.
Defendants claim that Mr. Kalven reads substantially out of Illinois
substantially prevails test. In fact, it is Defendants who misapply the Illinois test to Mr.
Kalvens attorneys successful work in pursuit of his claims. In an attempt to sidestep the
clear result of the application of the substantially prevails test, Defendants ask the
Court to insert a degree of success requirement that plays no role in making the
threshold determination of whether a party is eligible for attorneys fees under FOIA.
Specifically, they argue that the substantially prevails standard requires that a plaintiff
must win a substantial percentage of his claims before he is eligible for any fees
whatsoever. Defs. Br. 48. Like the circuit court, Defendants confuse Mr. Kalvens
degree of success with his status as a prevailing party. The proper inquiry into whether
Mr. Kalven substantially prevail[ed] to be eligible for a fee award is whether the filing
of suit was reasonably necessary to obtain the informationhere, the Repeater Lists.
Duncan Pub., 304 Ill.App.3d at 787. The extent of Mr. Kalvens victory plays no part in
the calculus.32

32

After a plaintiff crosses the threshold for fee eligibility by showing that he substantially
prevailed, the degree of success may be relevant to determine the appropriate size of the
award. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (where a plaintiff achieves partial
success, he is entitled to compensation for all hours reasonably expended in pursuit of the
claims in which he prevailed). This Court explained that after a plaintiff establishes his
eligibility for a fee award by having substantially prevailed, his entitlement to an award
of fees next must be established. Where requested records were of clearly significant
interest to the general public and the public body lacked any reasonable basis in law for
withholding the record, attorneys fees are warranted. Duncan Pub., 304 Ill. App.3d at
787 (internal quotations omitted). But the circuit court never reached this step because it
misinterpreted FOIAs substantially prevails language to rule that Mr. Kalvens limited
success made him ineligible for a fee award. App. A6.
57

The federal FOIA fees provision, grants an award in any case . . . in which the
complainant has substantially prevailed. 5 U.S.C. 552(a)(4)(E). 33 The provision
awards fees only to plaintiffs who substantially prevailed, but courts interpreting the
provision do not require plaintiffs to win on the majority of their claims to be eligible for
fees. Kalven Br. 47-48 (citing federal cases). This is because substantially prevailing is
defined as obtaining relief through a judicial order, or an enforceable written agreement
or consent decree, or a voluntary or unilateral change in position by the agency, if the
complainants claim is not insubstantial. 5 U.S.C. 552(a)(4)(E)(ii). Although a plaintiff
who substantially succeeds on a single claim is entitled to fees for that claim, the term
substantially still has force. This is because simply prevailing on a claim is not
enough to receive fees for the prosecution of that claim. If, for example, the
governments failure to disclose records in a timely manner is the result of an
administrative backlog in the processing of FOIA requests rather than the purposeful
withholding of records, a plaintiffs successful litigation effort is nonetheless ineligible
for a fee award. Bricker v. FBI, 54 F.Supp.2d 1, 4 (D.D.C. 1999); see also Lovell v. DOJ,
589 F.Supp. 150, 154 (D.D.C. 1984) (same).
Defendants also criticize as inapposite Mr. Kalvens citations to federal cases
interpreting the attorneys fees provision of federal FOIA, which contain the same
substantially prevails requirement. But Ulrich, the very same decision that Defendants
admit provides Illinois substantially prevails test, Defs. Br. 47-48, expressly held that
Illinois courts should look to federal court interpretations of federal FOIAs
33

5 U.S.C. 552(a)(4)(e) provides that The court may assess against the United States
reasonable attorney fees and other litigation costs reasonably incurred in any case under
this section [federal FOIA] in which the complainant has substantially prevailed.
58

substantially prevail language, because federal FOIAs fee provision is analogous to

our Act. Ulrich, 294 Ill.App.3d at 201-02. The federal cases that Mr. Kalven cited in his
opening brief make plain that, consistent with the Illinois definition of substantially
prevail, the degree of the plaintiffs overall success goes to the reasonableness of the
award . . . not to the availability of a fee award vel non. Texas State Teachers Assn v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). See also Edmonds v. FBI, 417
F.3d 1319, 1325-26 (D.C. Cir. 2005) (even though the court denied the plaintiff most of
the relief she sought, by winning some relief she substantially prevailed in her FOIA
action making her eligible for an attorney fee award).34 These cases are consistent with
the Illinois test for what it means to substantially prevail.
As Mr. Kalven emphasized in his opening brief, winning the production of the
Repeater Lists was no trivial victory for Mr. Kalven or the public. Defendants attempt to
minimize this victory, for example, by pointing to claims that Mr. Kalven dismissed for
the purposes of streamlining this litigation. Defs. Br. 48. While Defendants efforts to
trivialize the extent of Mr. Kalvens victory are incorrect, they are also irrelevant in this
appeal. It is beyond dispute that Mr. Kalven completely prevailed on his claims for the
Bond and Moore Repeater Lists. The circuit court erred in denying him fees for all
reasonable time expended on these successful claims.

34

Defendants argue that because the 2009 version of Illinois FOIA states that the court
may award fees, the circuit court was within its discretion to deny fees here. Defs. Br.
47. However, they ignore that federal FOIA also states that courts may, as opposed to
shall award fees when a FOIA plaintiff substantially prevails. 5 U.S.C.
552(a)(4)(E)(i). And federal courts interpreting this analogous provision have
consistently found that it would be erroneous to deny attorneys fees when a plaintiff won
some relief, even when the plaintiff has lost the vast majority of her claims. See
Edmonds, 417 F.3d at 1325-26; Kalven Br. 47-48 (citing additional cases).
59

12-1846 & 12-1917

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JAMIE KALVEN,
Plaintiff-Appellant, CrossAppellee
v.
THE CITY OF CHICAGO and
THE CHICAGO POLICE
DEPARTMENT,
Defendants-Appellees,
Cross-Appellants.

)
)
)
)
)
)
)
)
)
)
)
)

On appeal from the Circuit Court of

Cook County, Chancery Division.
Appeal Nos. 12-1846 & 12-1917.
Circuit Court No. 09 CH 51396.
Honorable Neil H. Cohen,
Presiding.

SUPPLEMENTAL APPENDIX
Craig B. Futterman
Saul Cohen, Senior Law Student
Italia Patti, Senior Law Student
MANDEL LEGAL AID
CLINIC
University of Chicago Law School
6020 S. University Ave.
Chicago, IL 60637
(773) 702-9611
Attorney # 91074

Jon Loevy
Samantha Liskow
LOEVY AND LEVY
312 N. May St.
Chicago, IL 60607
(312) 243-5900
Attorney # 41295
G. Flint Taylor
Ben H. Elson
PEOPLES LAW OFFICE
1180 N. Milwaukee Ave.
Chicago, IL 60642
(773) 235-0070
Attorney # 91330

TABLE OF CONTENTS TO PLAINTIFFS SUPPLEMENTAL APPENDIX

Unpublished Cases and Other Materials Cited in the Brief
Tab 1: Office of the Attorney General of Illinois Memorandum
RE: FOIA Request for Review, 2013 PAC 23559 ....................................................Supp. App. A1
Tab 2: Christian v. City of Springfield, No. 2011 MR 633 (Sangamon Cnty. Cir. Ct. July 12,
2013) ........................................................................................................................Supp. App. A11
Tab 3: Kitchen v. Burge, No. 10 C 4093, dkt 191 (N.D. Ill. Aug. 1, 2011) .............Supp. App. A16

A1

A2

A3

A4

A5

A6

A7

A8

A9

A10

A11

A12

A13

A14

A15

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 1 of 10 PageID #:1503

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RONALD KITCHEN,
Plaintiff,
v.
JON BURGE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 10 C 4093
Magistrate Judge
Maria Valdez

ORDER
This matter is before the Court on Defendant Officers Motion for Entry of
Protective Order [Doc. No. 182]. The Plaintiff has filed a Response in Opposition,
and the Defendant Officers have filed a Reply.
Litigation has historically been open to the public. See Jessup v. Luther, 277
F.3d 926, 927-28 (7th Cir. 2002). As a result, [a]bsent a protective order, parties to
a law suit may disseminate materials obtained during discovery as they see fit.
Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994); but cf.
Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009) (Generally speaking, the
public has no constitutional, statutory (rule-based), or common-law right of access
to unfiled discovery) (emphasis in original).
Pursuant to Federal Rule of Civil Procedure (Rule) 26(c), however, a party
may move for an order limiting the disclosure of confidential information obtained
in discovery. See Fed. R. Civ. P. 26(c). Information that is generally public should

A16

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 2 of 10 PageID #:1504

not be secreted without good cause. See Jessup, 277 F.3d at 929; Union Oil, 220
F.3d at 568; Citizens First Natl Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945-46
(7th Cir. 1999); In re Krynicki, 983 F.2d 74, 76-77 (7th Cir. 1992). Defendants seek
to enter a protective order concerning, among other things, protected health
information covered by the Health Insurance Portability and Acountability Act and
police disciplinary and complaint records.
Plaintiffs primary objection is directed to the orders inclusion of Complaint
Register files (CR files) within the scope of confidential material. The proposed
orders definition of Confidential Matter includes records relating to a public
bodys adjudication of employee grievances or disciplinary cases (generally referred
to as Complaint Register files) where no discipline has been imposed, and related
information protected from disclosure by the Illinois Personnel Records Review Act,
820 ILCS 40/0.01 et seq. (West 2004), consistent with the Illinois Freedom of
Information Act [Illinois FOIA], 5 ILCS 140/1 et seq. (West 2010), as amended . . .
. (Proposed Protective Order A.6.)
The order excludes from the definition of Confidential Matter the final
outcome of disciplinary actions generated by the investigation of complaints of
misconduct by Chicago police officers . . . where discipline has been imposed but
provides additional procedures for the public release of these documents. Under the
orders terms, thirty days before the public release of a document, the discovering
party must first provide a copy to the producing party in order to ensure that: (1)
the document qualifies under this provision; (2) identifying personal information
2
A17

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 3 of 10 PageID #:1505

has been properly redacted; and (3) the final outcome of that particular Complaint
Register should not also be deemed Confidential Matter for good cause shown
under Fed. R. Civ. P. 26(c) based on applicable exemptions of the Illinois Freedom of
Information Act or any other basis. (Proposed Protective Order 8(b).) The order
further states that [i]f any disputes arise pursuant to the application of this
provision, such document(s) cannot be released from this Order without a final
determination by this Court, based on an in camera review. (Id.) Finally,
Defendant Officers request a protective order that would find that sustained CRs
were not confidential but would require a party to be given fourteen days notice
prior to disclosing to any persons not involved in the litigation in order to raise any
privacy concerns with the court. (Proposed Protective Order C(8)(b).)
In support of their proposed protective order, Defendants argue that good
cause exists because the Illinois FOIA exempts CR files from disclosure; the parties
privacy interests require restriction; and unfiled discovery is not subject to public
access. To determine whether the Defendants have shown good cause, the Court
must balance the importance of disclosure to the nonmoving party against the
potential harm to the party seeking the protective order. Wiggins v. Burge, 173
F.R.D. 226, 229 (N.D. Ill. 1997)).

3
A18

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 4 of 10 PageID #:1506

The Illinois FOIA

The law provides for the use of protective orders, entered for good cause, to
protect parties from the annoyance, embarrassment, oppression, or undue burden
or expense that may result the discovery process. Bond, 585 F.3d at 1067 (citing
Fed.R.Civ.P. 26(c)(1) and Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30 (1984)).
Defendants rely on the Illinois FOIA in support of their burden to show good
cause. In this federal question case, the Illinois FOIA does not control the
determination of whether good cause has been shown. Calhoun, 273 F.R.D. 421,
423 (N.D. Ill. 2011) (citing Rangel v. City of Chi., No. 10 C 2750, 2010 WL 3699991,
at *2 (N.D. Ill. Sept. 13, 2010)). However, Defendants rely upon the Illinois FOIA to
support their argument that Defendants have a privacy interest in the CR files
under Illinois law. Therefore, the Court will address the application of the Illinois
FOIA to Defendants privacy interest.
First, the Illinois FOIA does not require CR files to be protected from public
disclosure. As this Court has previously held, CR files do not fall within the Illinois
FOIAs exemption for [r]ecords relating to a public bodys adjudication of employee
grievances or disciplinary cases; however, this exemption shall not extend to the
final outcome of cases in which discipline is imposed. 5 Ill. Comp. Stat.
140/7(1)(n) (West 2010); see Macias v. City of Chi., No. 09 C 1240, slip op. at 2 (N.D.
Ill. May 5, 2010) (holding that CR files are investigatory records that do not relate
to the adjudicatory process). Defendants citations to non-binding cases in this

4
A19

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 5 of 10 PageID #:1507

district reaching a different conclusion do not provide the Court any compelling
reason to revisit the issue.
Further, at the hearing on the motion, Defendants also contended that all
aspects of any investigation of a CR file relates to the adjudication of a disciplinary
case. Defendants reason that because the Independent Police Review Authority
(IPRA) and the Internal Affairs Division (IAD) of the Chicago Police Department
are involved in both the investigation and resolution of disputes, documents created
during the course of that process are within the scope of the adjudication of a
disciplinary case.
The CR file investigation does not reveal an adjudicatory process, and the
fact that the files may ultimately be relevant in a later adjudication does not put
them within the FOIA exemption. The IPRA conducts investigations into
allegations of misconduct and the IPRAs finding (such as sustained, not
sustained, unfounded, etc.) does not constitute discipline; that is left to the Police
Board. The Chicago Police Departments own policies support this interpretation. A
Chicago Police Board publication entitled Allegations of Police Misconduct: A
Guide to the Complaint and Disciplinary Process (August 2009) states:
The Independent Police Review Authority (IPRA), the Police Department,
and the Police Board have different roles. The responsibility to receive
complaints rests with IPRA, Depending on the nature of the allegations,
either IPRA or the Police Department will investigate the Complaint. The
Police Boards role is to adjudicate the complaints it is similar to a court.
Macias, slip op. at 2.

5
A20

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 6 of 10 PageID #:1508

Even if this Court were to ignore the Departments own statement and agree
that complaints that trigger an investigation relate to an adjudication, it would
require a strained reading of the statute to conclude that a complaint which was
never adjudicated by the Police Board should be also defined as relating to
adjudications under the Illinois FOIA. CR files that do not result in an adjudication
cannot relate to an adjudication.1

Privacy Interests
Defendants have not shown that the parties privacy interests constitute good
cause for protecting CR files from disclosure. With the exception of personal
information contained within the file,2 CR files are generally public, not private,
information. See Gekas v. Williamson, 912 N.E.2d 347, 356 (Ill. 2009) (concluding
that complaints of wrongdoing, whether founded or unfounded, bear on an officers

Furthermore, while it is not dispositive, a proposed amendment to FOIA suggests

that the current language does not include investigations. Illinois Senate Bill 2978, which
was filed on February 3, 2010, sought to amend Section 140/7(1)(n) to exempt:
1

Records relating to a public bodys investigation, settlement, and adjudication

of employee grievances or disciplinary cases; however, this exemption shall
not extend to cases in which criminal charges are filed for which disclosure of
information shall be governed by that which may be disclosed under the
provisions of subsection (a) of Section 2.15 until there is a final nonappealable conviction.
S.B. 2978, 96th Gen. Assem. (Ill. 2010) (proposed amendment emphasized in original).
The parties agree that personal and identifying information should be protected.
See Goldhamer v. Nagode, No. 07 C 5286, 2009 WL 3680201, at *2 (N.D. Ill. Nov. 2, 2009)
(defining as confidential only truly confidential information within complaint register
files, such as addresses and personal financial information).
2

6
A21

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 7 of 10 PageID #:1509

public duties, and their disclosure does not invade the officers personal privacy); see
also 5 Ill. Comp. Stat. 140/7(1)(c) (West 2010) (The disclosure of information that
bears on the public duties of public employees and officials shall not be considered
an invasion of personal privacy.).
Even though the Illinois legislature has determined that, in general,
disclosure of the CR files does not result in harm to the officers that would prevent
public disclosure, Defendants still have the right to show that they would
nonetheless suffer harm from the release of the information. They rely on the
general statement that release of the information may be unfairly construed in a
manner prejudicial to the police officer. Defs. Mot. at 10.; see also O'Malley v.
Village of Oak Brook, 2008 WL 345607 at *1 (N.D. Ill. 2008) ([W]e should not
ignore that disciplinary investigations are just that: investigations into charges of
misconduct that may or may not have merit. It may be the case that the public
would not treat the mere fact of investigation as proof of misconduct.).3 However,
the court in Wiggins specifically rejected this generalized harm. Wiggins, 173 F.R.D.
at 230 (The general public is sophisticated enough to understand that a mere
allegation of police torture, just like a lawsuit, does not constitute actual proof of

Defendants also argue that private citizens who make complaints are entitled to
have their complaints kept confidential. Defs. Mot. at 11; see Czajkowski v. City of
Chicago, No. 90 C 3201, 1992 WL 57945 at *2 (N.D. Ill., March 20, 1992) (noting that
victims of domestic violence have an interest in having their complaints remain
confidential and not having their private lives intruded upon by attorneys). The case cited
by Defendants is inapposite. In Czajkowski, the case only involved domestic violence
charges against a police officer, and the plaintiffs attorneys sought to interview victims of
domestic violence who had filed complaints.
3

7
A22

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 8 of 10 PageID #:1510

misconduct.). The Court agrees with the analysis in Wiggins when coupled with the
legislative directive under the Illinois FOIA.
The Court is also not persuaded by Defendants argument that the
complaints described in the CR files should be confidential because the complaints
may or may not have merit. See Gekas, 912 N.E.2d at 357-58 (If the Act allowed a
public body to deny access to complaints that it deemed to be unfounded, defeating
the Act would be as easy as declaring a complaint to be unfounded.).

Right to Pretrial Discovery

Defendants argue that a protective order is necessary because there is no
right of public access to unfiled pretrial discovery. See Bond, 585 F.3d at 1073-74
(holding that the public has no constitutional, statutory (rule-based), or commonlaw right of access to unfiled discovery) (emphasis in original). While Defendants
have correctly stated the law, it has no application in this context. It is true that a
member of the public does not have an automatic right to obtain unfiled discovery
from a party unwilling to disclose it. But Defendants have cited no case law for the
proposition that a party is forbidden to voluntarily disclose discovery that is not
subject to a protective order.4

Defendants point out that some of the files at issue are currently covered by
protective orders entered by other judges in the district court. The legal effect of this Order
does not undo any other protective order previously entered by a court. Plaintiffs counsel
represented to this Court at the hearing on this motion that she intends to seek alleviation
from prior protective orders by filing appropriate motions before the judges that entered the
orders. That is the correct course of action.
4

8
A23

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 9 of 10 PageID #:1511

Disclosure Procedure
The Court also disagrees with Defendants proposal to include a disclosure
procedure within the protective order. As stated above, Defendants seek to require
Plaintiff, before public disclosure of any document, to send a copy of the document
to Defendants no later than thirty days before disclosure. Defendants intend to use
the notice period to determine whether: (1) the document is in fact public; (2)
private information has been properly redacted; and (3) the final outcome of the
complaint should be deemed confidential under Federal Rule of Civil Procedure 26
or any applicable statute.
The first two reasons for the notice period are duplicative of the parties
obligations under the federal rules. Defendants have offered no evidence that
Plaintiff will not zealously abide by the terms of the protective order when or if he
decides to publicly disclose any discovery documents. Furthermore, Defendants
have not explained why, if good cause exists to protect a particular document for
reasons other than the general concerns offered in the present motion, they cannot
raise that issue before disclosure. There is no indication in the record that, for
example, the documents at issue are so voluminous that they cannot be inspected
before production.
The Defendants are therefore ordered to amend the proposed protective order
as follows:
(1)

The definition of Confidential Matter in Paragraph 6 should be amended by

deleting the following language: records relating to a public bodys
9
A24

Case: 1:10-cv-04093 Document #: 191 Filed: 08/01/11 Page 10 of 10 PageID #:1512

adjudication of employee grievances or disciplinary cases (generally referred

to as Complaint Register files) where no discipline has been imposed. In
addition, the second full paragraph of Paragraph 6 should be deleted. The
parties may, in their discretion, add the items listed in the subparts to
Paragraph 6 to the definition of Confidential Matter.
(2)

The proposed Paragraph C8(b) language should be deleted in its entirety.

CONCLUSION
For the foregoing reasons, Defendants Motion for Entry of Protective Order
[Doc. No. 153] is denied. Defendants are ordered to submit an amended protective
order, consistent with this opinion, the cases cited herein, and the Courts standing
order relating to the submission of a proposed order for electronic entry by the
judge, no later than 14 days from the date this order is entered.

SO ORDERED.

ENTERED:

DATE: ___August 01, 2011_____

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

10
A25

2014 IL App (1st) 121846

FIRST DIVISION
March 10, 2014
Nos. 1-12-1846 & 1-12-1917
JAMIE KALVEN,
Plaintiff-Appellant and CrossAppellee,
v.
THE CITY OF CHICAGO and
THE CHICAGO POLICE
DEPARTMENT,
Defendants-Appellees and
Cross-Appellants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Appeal from the

Circuit Court of
Cook County
No. 09 CH 51396

Honorable
Neil H. Cohen,
Judge Presiding.

PRESIDING JUSTICE CONNORS delivered the judgment of the court, with

opinion.
Justice Cunningham concurred in the judgment and opinion.
Justice Delort specially concurred in the judgment, with opinion.
OPINION

Plaintiff Jamie Kalven filed suit against defendants Chicago police

department (CPD) and City of Chicago pursuant to the Freedom of Information Act
(FOIA) (5 ILCS 140/1 et seq. (West 2010)), seeking the disclosure of certain
documents related to complaints of police misconduct. Plaintiff and defendants filed
cross-motions for summary judgment, and the circuit court granted and denied both
motions in part. Plaintiff now appeals from the courts ruling that certain
documents are exempt from FOIA disclosure and from the denial of attorney fees.
Defendants appeal from the courts ruling that certain lists are not exempt from

Nos. 1-12-1846 & 1-12-1917

FOIA disclosure. We affirm in part and reverse in part and remand for further
proceedings.
2

On November 16, 2009, plaintiff submitted FOIA requests to CPD seeking

two types of documents: (1) lists of Chicago police officers who amassed the most
misconduct complaints (referred to as Repeater Lists or RLs); and (2) complaint
register files (referred to as CRs) related to CPDs completed investigations into
allegations of police misconduct against five officers. On December 8, 2009, CPD
denied the requests. Plaintiff filed this lawsuit on December 22, 2009, seeking an
injunction requiring CPD to produce the documents.
3

The CRs are CPDs records of investigations into complaints made by citizens

against police officers. Upon receiving a citizen complaint, CPD generally creates
records cataloging the investigation into any officers alleged misconduct. The CR
files consist of the complaint itself and documents created during the investigation
of the complaint.
4

The RLs, in contrast, were first compiled by defendants as part of Bond v.

Utreras, No. 04 C 2617 (N.D. Ill.) (hereinafter Bond), and Moore v. City of Chicago,
No. 07 C 5908 (N.D. Ill.) (hereinafter Moore). The Bond RLs identify police officers
who accumulated the most misconduct complaints between 2001 and 2006. The
Moore RLs identify officers who received more than five complaints from May 2002
to December 2008, as well as officers who were accused of excessive force more than
five times during the same time period. These lists were retrieved from CPDs
complaint register management system and were produced in response to court2

Nos. 1-12-1846 & 1-12-1917

ordered civil discovery in each case. The Bond lists were ordered preserved for ease
of production in this case by the circuit court after Bond was settled. The Moore
lists were produced as court-ordered discovery in that case and then saved to CPDs
computer system.
5

Plaintiff, a reporter who was in the midst of publishing articles on alleged

police misconduct, sought leave to intervene in Bond in order to obtain access to the
RLs and CRs at issue in that case. The federal court granted plaintiffs motion, but
the Seventh Circuit stayed that order pending defendants appeal. See Bond v.
Utreras, 585 F.3d 1061, 1065 (7th Cir. 2009). The Seventh Circuit ultimately ruled
that plaintiff lacked standing to intervene in Bond, but noted that plaintiff could
seek the same documents from defendants under the Illinois Freedom of
Information Act. See Bond, 585 F.3d at 1076 n.10.
6

On November 16, 2009, plaintiff submitted FOIA requests to CPD for the RLs

and the CRs relating to 17 Chicago police officers, including the 5 officers who were
defendants in Bond. CPD, however, denied plaintiffs request. In response to the
denial, plaintiff filed this lawsuit against defendants on December 22, 2009.
7

In the circuit court, the parties filed cross-motions for summary judgment. In

regard to the CRs, the court found that they were exempt from disclosure under
FOIA because they are [r]ecords relating to a public bodys adjudication of ***
disciplinary cases. 5 ILCS 140/7(1)(n) (West 2010). Regarding the RLs, the circuit
court found that section 7(1)(m), which exempts documents prepared in anticipation
of litigation for attorneys representing a public body, did not exempt the RLs from
3

Nos. 1-12-1846 & 1-12-1917

disclosure. See 5 ILCS 140/7(1)(m) (West 2010). The circuit court further found
that the RLs were public records subject to disclosure under section 2(c). See 5
ILCS 140/2(c) (West 2010). Finally, the circuit court found that plaintiff, having
succeeded on his claim for the RLs but failing on his claim for the CRs, did not
substantially prevail in the proceeding as required by under section 11(i) and thus
were not entitled to attorney fees. See 5 ILCS 140/11(i) (West 2010). Both parties
have now appealed.
8

The threshold question that we must resolve is which version of FOIA applies

to this case. Plaintiff requested the CRs and RLs from defendant in late 2009 and,
after CPD denied the request, plaintiff filed suit on December 22, 2009. While the
case was pending in the circuit court, however, an amended version of FOIA went
into effect on January 1, 2010. Plaintiff contends that we should apply the 2009
FOIA statute because it was in effect when the FOIA request was denied by
defendants. In contrast, defendants argue that we should apply the 2010 version of
the statute.
9

FOIA provides that when a person is denied access to inspect or copy any

public record by a public body regarding the affairs of government and the official
acts and policies of those who represent the public, that person may file suit in
circuit court for injunctive or declaratory relief. See 5 ILCS 140/11(a) (West 2010).
The circuit court has the authority to determine whether the records are subject to
FOIA and, if so, whether they are exempt from disclosure. See 5 ILCS 140/11(f)
(West 2010). Moreover, the circuit court has the authority to order the production
4

Nos. 1-12-1846 & 1-12-1917

of any public records improperly withheld from the person seeking access. See 5
ILCS 140/11(d) (West 2010).
10 Injunctive and declaratory relief are prospective forms of relief because they
are concerned with restraining or requiring future actions rather than remedying
past harms. See, e.g., PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill. 2d 250, 26768 (2005) (discussing the difference between an injunction and present claims for
damages in the context of sovereign immunity). When claims are prospective, a
court must apply the law that is in effect at the time of its decision. See, e.g.,
Bartlow v. Costigan, 2014 IL 115152, 30-31 (in the context of a suit seeking a
declaration that a statute is unconstitutional and an injunction prohibiting its
enforcement, amended version of the statute must be examined in order to
determine whether the plaintiff is entitled to relief); see also Forest Preserve District
of Kane County v. City of Aurora, 151 Ill. 2d 90, 94-95 (1992) (same). In this case,
although the 2009 FOIA statute was in effect when plaintiff filed suit, the statute
has since been amended. In order to determine whether plaintiff is entitled to
production of the documents, we must therefore apply the version of the statute
that is currently in effect.
11 Turning to the merits of this case, defendants claim that the CRs are exempt
under two FOIA provisions. 1 First, defendants argue that section 7(1)(n) exempts
the CRs from disclosure. That section exempts:

Defendants also raised an argument that the CRs would be exempt under the 2009 FOIA section
7(1)(b)(ii). However, defendants conceded at oral arguments that this would only apply should we decide to apply
the 2009 FOIA statute.

Nos. 1-12-1846 & 1-12-1917

[r]ecords relating to a public bodys adjudication of employee
grievances or disciplinary cases; however, this exemption shall not
extend to the final outcome of cases in which discipline is imposed. 5
ILCS 140/7(1)(n) (West 2010).
Defendants argue that CRs are related to adjudicatory proceedings, and that the
phrase related to must receive a broad interpretation. Defendants further
contend that the provision exempts not only the adjudications themselves, but also
exempts from disclosure all records that relate to the adjudications.
12 We consider issues of statutory construction de novo. People ex rel. Madigan
v. Kinzer, 232 Ill. 2d 179, 184-85 (2009). The fundamental objective of statutory
construction is to ascertain and give effect to the intent of the legislature.
[Citation.] The best indication of legislative intent is the statutory language given
its plain and ordinary meaning. [Citation.] When statutory language is plain and
unambiguous, the statute must be applied as written without resort to aids of
statutory construction. [Citation.] We may not depart from a statute's plain
language by reading into it exceptions, limitations, or conditions the legislature did
not express. [Citation.] Courts should not attempt to read a statute other than in
the manner it was written. Id.
13 There are several problems with defendants interpretation of section 7(1)(n).
First, the plain language of the statue demonstrates that only records related to
adjudications are exempt from disclosure. The statute does not define
adjudication, however, so we may examine the dictionary to determine its
6

Nos. 1-12-1846 & 1-12-1917

ordinary meaning. See Poris v. Lake Holiday Property Owners Assn, 2013 IL
113907, 48. Adjudication is generally understood to involve a formalized legal
process that results in a final and enforceable decision. See, e.g., Blacks Law
Dictionary 42 (7th ed. 1999) (The legal process of resolving a dispute; the process of
judicially deciding a case.). Given that section 7(1)(n) also refers to employee
grievances and disciplinary cases, the statute appears to be limited to documents
connected to formalized legal proceedings that involve only those two issues and
that result in a final and enforceable decision.
14 Investigations into CRs, however, are not adjudications of either an employee
grievance or a disciplinary case. When a public citizen files a complaint against a
police officer, either CPDs internal affairs division (IAD) or the Independent Police
Review Authority (IPRA) begin investigating the complaint. The CRs are an effort
to gather factual information about the complaint, but they do not involve any
formalized legal proceedings. While the record indicates that a substantiated
complaint can result in disciplinary proceedings being instituted against an officer,
those proceedings are a different matter entirely. The CRs are instead part of an
investigatory process that is separate and distinct from disciplinary adjudications.
15 Still, even though the CRs are not themselves adjudicatory, they could be
exempt if they are related to an adjudication. Defendants read this provision
expansively, arguing that the CRs are related to adjudications because they can, if
substantiated, subject an employee to disciplinary proceedings. Defendants point
out that section 7(1)(n) previously existed as section 7(1)(u) in a prior version of the
7

Nos. 1-12-1846 & 1-12-1917

statute. In the amended provision, the phrase related to replaced information
concerning. On its face this does not seem to be a substantive change, given that
there is no real difference between the plain meaning of the phrases information
concerning and relating to. See, e.g., Bloomberg, L.P. v. United States Food &
Drug Administration, 500 F. Supp. 2d 371, 377 (S.D.N.Y. 2007). However,
applicable here is the rule that an amendment to a statute creates a presumption
that the amendment was intended to change the law, and as defendants note, this
provision was changed. See People v. Hicks, 119 Ill. 2d 29, 34 (1987).
16 Defendants reading of the section is based on the premise that the new
section 7(1)(n) was the legislatures response to our decision in Gekas v. Williamson,
393 Ill. App. 3d 573, 575 (2009). In that case, the plaintiff filed a FOIA request for
complaint records against a police officer, and his request was denied. We
determined that records such as CRs are not exempt under FOIA. Shortly
thereafter, the legislature amended FOIA, changing section 7(1)(u) to section 7(1)(n)
and substituting the words information concerning with relating to. Defendant
contends that the legislatures changes to the statute were a direct effort to overrule
Gekas.
17 There are several reasons to conclude that the amendment was not a
response to Gekas. First, the old version of section 7(1)(u) applied to both students
and employees, and the amendment merely consolidated education exemptions
under a different subsection, and moved the employee-related exemption and
changed the language slightly. See Pub. Act 96-542 (eff. Jan. 1, 2010). There is no
8

Nos. 1-12-1846 & 1-12-1917

indication in either the text of the statute or its legislative history that the change
was intended to affect the meaning of the section as it related to employees. If the
legislature intended to overrule Gekas and exempt CRs from disclosure by adding
section 7(1)(n) to FOIA, it chose a very opaque and convoluted method of doing so.
For 30 years section 7(1)(u) existed in nearly identical form and was never
interpreted to exempt a public bodys investigations into citizen complaints of police
misconduct.
18 This is important because the rules of statutory construction also hold that
[w]here the legislature chooses not to amend a statute after a judicial construction,
it will be presumed that [the legislature] has acquiesced in the court's statement of
the legislative intent. (Internal quotation marks omitted.) Wakulich v. Mraz, 203
Ill. 2d 223, 233 (2003). When it amended FOIA the legislature made no reference to
Gekas, which implies that the amendments were not intended as a response to our
decision in that case. This was the conclusion reached in Rangel v. City of Chicago,
in which the Northern District of Illinois considered the issue and found that there
is no basis to conclude that this amendment, enacted approximately one month
after Gekas was decided, was an effort to broaden the scope of the adjudication
exemption for public employees, and certainly not to exempt CR register
documents. Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991, at *3
(N.D. Ill. Sep. 13, 2010). 2 Notably, section 7(1)(n) was not at issue in Gekas.

Given the lack of controlling Illinois precedent on this issue, there has been a healthy
debate in the federal district courts regarding the meaning of section 7(1)(n) as applied to CRs. See,

Nos. 1-12-1846 & 1-12-1917

Instead, the defendants claimed that the documents were exempt under several
other provisions of FOIA. See Gekas, 393 Ill. App. 3d at 582-90.
19 Moreover, defendants interpretation is at odds with the purpose of FOIA,
which is to open governmental records to the light of public scrutiny. (Internal
quotation marks omitted.) Stern v. Wheaton-Warrenville Community Unit School
District 200, 233 Ill. 2d 396, 405 (2009). It is well settled that FOIA is to be
accorded liberal construction, and the statutory exemptions from disclosure must
be read narrowly. (Internal quotation marks omitted.) Id. at 411. Defendants
interpretation of relating to would give section 7(1)(n) an expansive interpretation
and render a broad category of public documents immune to public scrutiny. That
is contrary to the intent of FOIA.
20 Finally, defendants claim that CRs are the start of the adjudicatory process
and that without them a proper adjudication could never exist. This argument
mischaracterizes the nature of CRs. The CRs are created to investigate reports of
police misconduct, and any disciplinary adjudication that may take place as a result
of the CRs comes later. While information obtained during the investigation may
potentially be introduced during adjudication of a disciplinary case, a CR does not
initiate that adjudication, nor can CRs themselves be considered disciplinary.
Indeed, if a complaint is unsubstantiated, then no disciplinary adjudication ever
occurs and that CR necessarily cannot relate to an adjudication. This is a further

e.g., Martinez v. City of Chicago, No. 09 C 5938, 2012 WL 1655953, at *2 (N.D. Ill. May 10, 2012)
(listing cases).

10

Nos. 1-12-1846 & 1-12-1917

indication that CRs are distinct from disciplinary adjudications and therefore not
encompassed by section 7(1)(n).
21 Defendants provide us with a line of cases to support their argument of a
broad reading of the term relating to, but these cases do little to buttress their
claim. When examined, the cases are inapposite. For example, in Goff v. Teachers
Retirement System, 305 Ill. App. 3d 190, 195 (2009), the court held the phrase
relating to, arising out of, and in connection with are very broad terms.
However, those terms were in the context of a teachers after-school criminal sexual
abuse of students that related to his position as a teacher in a role that he
exploited to take advantage of his students. See id. at 196. The case did not
purport to interpret FOIA. Similarly, defendants cite to BlueStar Energy Services,
Inc. v. Illinois Commerce Commn, 374 Ill. App. 3d 990 (2007), and Kopchar v. City
of Chicago, 395 Ill. App. 3d 762 (2009). These cases did construe FOIA exemptions
in a broader way on the facts of those cases, but they did not analyze the term at
hand. Moreover, there are other cases that interpret relating to in a narrow way
in a variety of contexts. See, e.g., Romano v. Municipal Employees Annuity &
Benefit Fund of Chicago, 402 Ill. App. 3d 857 (2010); Lopez v. Liquor Control
Commn, 120 Ill. App. 3d 756 (1983).
22 In sum, section 7(1)(n) does not exempt CRs from disclosure. Under any
reading of the statute, CRs do not constitute an adjudication or either an
employee grievance or a disciplinary case. Further, the phrase related to must be

11

Nos. 1-12-1846 & 1-12-1917

read narrowly, and in the context of FOIA, CRs are not related to disciplinary
adjudications in a way that might exempt them from disclosure.
23 Alternatively, defendants contend that the CR files are exempt under section
7(1)(f) of FOIA, which exempts from disclosure [p]reliminary drafts, notes,
recommendations, memoranda and other records in which opinions are expressed,
or policies or actions are formulated. 5 ILCS 140/7(1)(f) (West 2010). Defendants
argue that CR files generated during preliminary investigations should be exempt
in their entirety under section 7(1)(f) because they may contain recommendations
to the Superintendent regarding whether an officer should be disciplined because of
his actions.
24 Section 7(1)(f) has been found to be the equivalent of the federal deliberative
process exemption, which applies to predecisional materials used by a public body
in its deliberative process. (Internal quotation marks omitted.) Day v. City of
Chicago, 388 Ill. App. 3d 70, 79 (2009). This exemption protects the opinions that
public officials form while creating government policy. It does not protect factual
material or final agency decisions. See id. CRs contain citizens allegations of
police misconduct and CPDs investigation into the facts of those allegations. While
it is possible that CRs might contain recommendations that could potentially fall
under the exemption, it is well settled that [o]nly those portions of a predecisional
document that reflect the give and take of the deliberative process may be
withheld. Public Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876
(D.C. Cir. 2010). Indeed, we have previously examined this exact issue. In Watkins
12

Nos. 1-12-1846 & 1-12-1917

v. McCarthy, a factually similar case, we held that to the extent that a CR file might
include policy recommendations from an investigator regarding the complaint and
its resolution, an in camera review may be necessary to determine whether and to
what extent the exemption applies. See Watkins v. McCarthy, 2012 IL App (1st)
100632, 37-38.
25 Watkins is clear that at a minimum, section 7(1)(f) does not allow a public
body to withhold an entire file on the basis that some portions of it may fall under
the deliberative-process exemption. Should defendants wish to claim this
exemption for portions of a CR file, that is an issue that can be discussed on
remand.
26 The remaining issue is whether the RLs are exempt from disclosure.
Initially, we note that the circuit court found that defendants forfeited their
argument that section 7(1)(n) applies to the RLs. The first appearance of that
argument came in defendants motion to reconsider the circuit courts summary
judgment ruling. A party may not raise a new legal or factual argument in a motion
to reconsider. See North River Insurance Co. v. Grinnell Mutual Reinsurance Co.,
369 Ill. App. 3d 563, 572 (2006). The general rule is that arguments not raised in
the trial court are deemed waived and cannot be argued for the first time on appeal.
See Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486 (1985). However,
[t]he waiver rule is an admonition to litigants and not a limitation upon the
jurisdiction of a reviewing court. Barnett v. Zion Park District, 171 Ill. 2d 378, 389

13

Nos. 1-12-1846 & 1-12-1917

(1996). Given the likelihood of further litigation on this issue, we choose to review
the issue.
27 Defendants initial argument is that the RLs are exempt from disclosure
under sections 7(1)(f) and 7(1)(n) because they are simply summaries of CRs. As we
found above, however, CR files are not exempt from disclosure under these sections.
The RLs are not exempt from disclosure for the same reasons, and we need not
revisit them here.
28 There is one difference between the CRs and the RLs, but it is immaterial.
While the CRs are original documents created in response to citizen complaints, the
RLs were retrieved from a CPD database and were compiled for purposes of
discovery in an unrelated federal case. Defendants contend that the RLs were
therefore not created in the ordinary course of business, and are thus not
disclosable because they are not encompassed by FOIAs definition of public
records.
29 Defendants narrow interpretation of what constitutes a public record is not
supported by the plain language of the statute. FOIA section 2(c) states:
Public records means all records, reports, forms, writings, letters,
memoranda, books, papers, maps, photographs, microfilms, cards,
tapes, recordings, electronic data processing records, electronic
communications, recorded information and all other documentary
materials pertaining to the transaction of public business, regardless of
physical form or characteristics, having been prepared by or for, or
14

Nos. 1-12-1846 & 1-12-1917

having been or being used by, received by, in the possession of, or
under the control of any public body. 5 ILCS 140/7(2)(c) (West 2010)
CPD prepared, used, possesses, and controls the RLs. Under any reading of section
2(c), the RLs are subject to FOIA and must be disclosed unless an exemption
applies.
30 Defendants alternatively argue that the protective order in federal litigation
relieved them of their duty to disclose the RLs. However, the Seventh Circuit
stated expressly in Bond that the protective order did not interfere with the
plaintiffs ability to compel the defendant to disclose the documents. See Bond, 585
F.3d at 1076 n.10. The protective order in Bond is similar to that in Moore. Neither
protective order has any bearing on defendants duty to disclose the RLs pursuant
to a FOIA request.
31 Defendants again point us to BlueStar Energy Services, 374 Ill. App. 3d 990,
which defendants contend stands for the proposition that a settlement agreement is
not subject to disclosure under FOIA. In that case, the agency had possession of the
agreement only because the agency had compelled its production from the regulated
entity during regulatory proceedings. The ICC agreed to treat the disclosures as
confidential, and we held the documents were exempt from FOIA because ordering
their disclosure would have a chilling effect on the receipt of similar information
in the future. Defendants argue that disclosure of the RLs in this case will
similarly have a discouraging effect on government agencies in agreeing to produce
documents in future discovery for fear that they will be subject to FOIA later. But
15

Nos. 1-12-1846 & 1-12-1917

defendants argument on this point falls apart when BlueStar is read in full: the
settlement agreements in BlueStar fell within FOIAs trade secrets exemption, and
the case did not turn squarely on the assurances of confidentiality given in the
course of discovery. The case is thus inapposite.
32 In sum, neither the CRs nor the RLs are exempt from disclosure under FOIA.
The circuit courts order granting summary judgment in favor of plaintiff on the RLs
is therefore affirmed, but its order granting summary judgment in favor of
defendants on the CRs is reversed. There are, however, two outstanding issues that
require remand. First, defendants contended at oral argument that some portions
of the CRs are subject to the deliberative-process exemption. If defendants claim
that certain portions of the CRs should be redacted under this exemption and
plaintiff does not agree to the proposed redactions, then the circuit court must
resolve the issue after an in camera inspection. Importantly, the burden is on
defendants to demonstrate that portions of the document are exempt under the
deliberative-process exemption. See Watkins, 2012 IL App (1st) 100632, 13 (noting
that the public agency bears the burden of establishing that public records fall
within an exemption, and stating that [t]o meet this burden and to assist the court
in making its determination, the agency must provide a detailed justification for its
claimed exemption, addressing the requested documents specifically and in a
manner allowing for adequate adversary testing. (Emphasis and internal
quotation marks omitted.)).

16

Nos. 1-12-1846 & 1-12-1917

33 Second, FOIA includes a provision regarding attorney fees. It reads in
relevant part, [i]f a person seeking the right to inspect or receive a copy of a public
record substantially prevails in a proceeding under this Section, the court may
award such person reasonable attorneys fees and costs. 5 ILCS 140/11(i) (West
2008). The circuit court found that plaintiff did not substantially prevail in his case
because he was only successful in obtaining the RLs, and thus the circuit court
declined to award attorney fees. In light of our holding here, however, the attorney
fee issue is to be revisited on remand.
34 Affirmed in part and reversed in part; cause remanded with directions.
35 JUSTICE DELORT, specially concurring:
36 I join the opinion in full, with the exception of 10. That portion of the
majority opinion deals with the circumstance when an individual makes a FOIA
request when a particular version of FOIA is in place, but the legislature amends
the FOIA law before the governmental body fulfills the request. In particular, the
defendants here suggest that the new version of FOIA now in place is less generous
toward FOIA requestors such as the plaintiff here, and that it allows governmental
bodies to release fewer records than they would be required to under the previous
version of the law. I would instead find that the plaintiffs rights to the records
vested when he made the request and could not later be rescinded by legislative
action. To hold otherwise would encourage governmental bodies to stall FOIA
responses until some future time when the legislature might amend the statute in a
favorable manner, or to actively lobby for an amendment which shields particular
17

Nos. 1-12-1846 & 1-12-1917

embarrassing records from disclosure. It can be suggested that, even if a legislative
amendment allowed certain records to be shielded from public disclosure, civil
penalties could still be awarded against the governmental body under section 11(j)
(5 ILCS 140/11(j) (West 2010)) for willful and intentional failure to comply with
FOIA in the first instance. I believe, however, that only release of the actual
records requested would truly fulfill the intent and purpose of FOIA.
37 I further believe that there is hardly a perceptible difference between the old
and new versions of FOIA as they apply to this case, and that the change is
basically stylistic rather than substantive. Accordingly, I agree with the remainder
of the majoritys analysis and with the ultimate result.

18

IN THECIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION
JAMIE KALVEN,
Plaintiff,
v.
THE CITY OF CHICAGO and THE
CHICAGO POLICE DEPARTMENT,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

09 CH 51396
Judge Neil H. Cohen

)
RELEASE AND SETTLEMENT AGREEMENT
Plaintiff, Jamie Kalven, by his attorneys, Craig B. Futterman, Loevy &
Loevy, Samantha Liskow, Flint Taylor, and Ben H. Elson, and defendants, City of
Chicago and Chicago Police Department, by their attorney, Stephen R. Patton,
Corporation Counsel of the City of Chicago, herein stipulate and agree to the
following:
1.

This action was brought by plaintiff, Jamie Kalven, against

defendants, the City of Chicago (City) and the Chicago Police Department
(Department), pursuant to the Illinois Freedom of Information Act (FOIA), 5 ILCS
140/1, et seq. (2010). Plaintiffs complaint sought two types of documents that
plaintiff had requested in his November 16, 2009 FOIA request (as subsequently
narrowed by plaintiff through his motion for voluntary partial dismissal): (1)
certain lists produced by the City in Bond v. Utreras, 04 C 2617 (N.D. Ill.), and
Moore v. City, No. 07 C 5908 (N.D. Ill.); and (2) certain Complaint Register files and
1

Log Number investigations. Plaintiffs complaint also sought attorneys fees

pursuant to section 140/11(i) of FOIA, 5 ILCS 140/11(i) (2010).
2.

This Court held that the Complaint Register files were exempt from

disclosure under FOIA, the Bond and Moore lists were not exempt, and plaintiff was
not entitled to attorneys fees because he did not substantially prevail in this case.
Affirming in part and reversing in part, the Illinois Appellate Court held that
neither the Complaint Register files nor the lists were exempt from disclosure,
although some portions of the Complaint Register files may be exempt under
FOIAs deliberative-process exemption. See Kalven v. City of Chicago, 2014 IL App
(1st) 121846 32. The appellate court remanded the case to the circuit court to
resolve any disputes about the redactions available under the deliberative-process
exemption, and also to revisit the issue of attorneys fees. Id. 32-33. The time to
file a petition for leave to appeal to the Illinois Supreme Court has not expired.
3.

To avoid the burden, inconvenience, and expense of further litigation,

the parties have agreed that the Department will provide to plaintiff within thirty
days of the execution of this Release and Settlement Agreement the lists produced
in the Bond and Moore litigation that are responsive to plaintiffs FOIA request (as
narrowed by plaintiff through his motion for partial voluntary dismissal). In
addition, the parties agree that for each Complaint Register file and Log Number
investigation that is responsive to plaintiffs FOIA request (as narrowed by plaintiff
through his motion for voluntary partial dismissal), the Department will release
within thirty days of the execution of this Release and Settlement Agreement the
2

summary report and/or summary report digest. The Department also will release
the list of attachments accompanying each summary report or digest, if one exists,
and if none exists, so state. Prior to release, the Department will redact the
documents consistent with available FOIA exemptions (other than the section
7(1)(n) exemption and the deliberative-process exemption, insofar as the latter
exemption applies to the investigators reasoning and recommended disposition set
forth in the summary reports and digests), including by redacting the names of and
identifying information (excluding birth year, age, gender, and race) for
complainants, for non-police witnesses, and for police witnesses who provided
information that supports the claim that the accused officer or officers committed
misconduct. Within two weeks of the Departments production of the summary
reports and digests, the plaintiff will notify the Department of which, if any, of the
referenced Complaint Register files and Log Number investigations, or parts
thereof, he requests for production. The Department will respond to the plaintiffs
request within fourteen days, by notifying plaintiff whether it will be unduly
burdensome within the meaning of 5 ILCS 140/3(g) (2010) for the Department to
provide the requested Complaint Register files and/or Log Number investigations
and/or parts thereof (redacted consistent with available FOIA exemptions).
4. The parties agree to negotiate in good faith, consistent with the process
set forth in paragraph 3, about which Complaint Register files and Log Number
investigations and/or parts thereof should be released. If it will not be unduly
burdensome under 5 ILCS 140/3(g) (2010) for the Department to produce the
3

additional items requested by plaintiff, the parties will agree in good faith on a
schedule for the production of the additional items (redacted consistent with
available FOIA exemptions). Finally, the parties agree that if they are unable to
reach agreement over the production of the requested Complaint Register Files
and/or Log Number investigations and/or parts thereof, the Court shall retain
jurisdiction to resolve their dispute, including whether production would be unduly
burdensome under 5 ILCS 140/3(g) (2010) or as to the redactions that the
Department makes to the items it produces pursuant to this Agreement.
5.

The parties and their attorneys acknowledge that this settlement is

not an admission of liability or of wrongdoing on the part of either defendant and/or

the Citys future, current, or former officers, agents, and employees, and shall not
serve as evidence of the validity or invalidity of the claims alleged in plaintiffs
complaint. The parties and their attorneys further acknowledge that this
settlement is not an admission: on the part of plaintiff or plaintiffs attorneys that
FOIA exempts from production the names or identifying information of
complainants and non-police witnesses in police misconduct investigations or the
names or identifying information of police witnesses who provide information that
supports the complaint of police misconduct; or on the part of defendants or
defendants attorneys that FOIA requires the production Complaint Register files
and Log Number investigations, the investigators reasoning and recommended
disposition set forth in the summary reports and summary report digests, the
names of and identifying information for police witnesses who provide information
4

that does not support the complaint of police misconduct, or the birth year for
accused officers, witnesses, and complainants.
6.

In consideration of the settlement entered pursuant to this Release

and Settlement Agreement, and upon advice of counsel, plaintiff agrees to dismiss
with prejudice his claims against defendants.
7.

The parties further agree that, pursuant to 5 ILCS 140/11(i) (2010)

and the Illinois Appellate Courts opinion remanding the case to this Court to
determine attorneys fees, see Kalven v. City of Chicago, 2014 IL App (1st) 121846
33, plaintiff is entitled to reasonable attorneys fees in an amount to be decided by
the Court.
8.

The City agrees to pay plaintiff any reasonable fee award determined

by this Court within 60 days of receipt by the Corporation Counsels Office of a

court-entered order dismissing this case with prejudice, a court-entered stipulation
of dismissal, a fully-executed settlement agreement, and any other court-entered
order necessary for the disposition of funds, whichever is received last. This sum
shall be payable solely by the City of Chicago, and plaintiff and his attorneys agree
that they will not seek payment from any source other than the City of Chicago.
9.

In consideration of this settlement entered pursuant to this Release

and Settlement Agreement, and upon advice of counsel, plaintiff agrees to

indemnify and hold harmless the City of Chicago, the Chicago Police Department,
and its future, current, or former officers, agents, and employees from any claims,
losses, damages, or expenses, including attorneys fees and costs, incurred, or which
5

may be incurred, by reason of any lien or any other claim or interest held by any
person, entity, or corporation against any moneys received or to be received by
plaintiff under this settlement entered pursuant to this Release and Settlement
Agreement.
10. This Release and Settlement Agreement and any documents that may be
executed under paragraph 13 contain the entire agreement between the parties
with regard to the settlement of this action, and shall be binding upon and inure to
the benefit of the parties hereto, jointly and severally, and the heirs, executors,
administrators, personal representatives, successors, and assigns of each.
11.

This Release and Settlement Agreement is entered into in the State of

Illinois and shall be construed and interpreted in accordance with its laws. Terms
contained herein shall not be construed against a party merely because that party
is or was the principal drafter.
12.

In entering into this Release and Settlement Agreement, plaintiff

represents that he has relied upon the advice of his attorneys, who are the
attorneys of his own choice, and that the terms of this Release and Settlement
Agreement have been interpreted, completely read, and explained to him by his
attorneys, and that those terms are fully understood and voluntarily accepted by
plaintiff.
13.

All parties agree to cooperate fully and to execute a Stipulation to

Dismiss and any and all supplementary documents and to take all additional
actions that are consistent with and that may be necessary or appropriate to give
6

full force and effect to the basic terms and intent of this Release and Settlement
Agreement.
/s/ Craig B. Futterman
_____________________________
Craig B. Futterman
One of the Attorneys for Plaintiff,
Edwin F. Mandel Legal Aid Clinic
6020 South University
Chicago, Illinois 60637
(773) 702-9611
Attorney No. 91074
DATE: July 10, 2014

/s/ Stephen R. Patton

_____________________________
Stephen R. Patton
Corporation Counsel
of the City of Chicago
Attorney for Defendants
121 North LaSalle Street
City Hall, Room 600
Chicago, Illinois 60602
(312) 744-0220
Attorney No. 90909
DATE: July 10, 2014

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION
JAMIE KALVEN,
Plaintiff,
v.
THE CITY OF CHICAGO and THE
CHICAGO POLICE DEPARTMENT,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

09 CH 51396
Judge Neil H. Cohen

)
ORDER OF DISMISSAL
This matter coming before the Court on the Stipulation of the parties, the
Court hereby orders:
1. The terms of the Release and Settlement Agreement are expressly
incorporated into this Order. The parties are directed to consummate and perform
its terms.
2. All of the claims of plaintiff, Jamie Kalven, against defendants, City of
Chicago and Chicago Police Department, are dismissed with prejudice in accordance
with the terms of the Release and Settlement Agreement.
3. The Court orders that Defendant City of Chicago pay two hundred
thousand dollars ($200,000), payable to the Edwin F. Mandel Legal Aid Clinic, to be
paid within sixty (60) days of entry of this Order, in full satisfaction of plaintiffs
attorneys fees and costs claimed pursuant to 5 ILCS 140/11(i) (2010).
4. The Court retains jurisdiction to enforce the terms of the Release and
Settlement Agreement, which are expressly incorporated herein as part of this

Order. Per the terms of the Agreement, the Court expressly retains jurisdiction to
resolve any disputes as to the propriety of redactions made to documents produced
by the Department, and as to whether the production of the requested Log Number
investigations and Complaint Register files would impose an undue burden on the
Department under 5 ILCS 140/3(g) (2010).

Craig B. Futterman
Edwin F. Mandel Legal Aid Clinic
6020 South University Avenue
Chicago, Illinois 60637
(773) 702-9611
Attorney No. 91074

ENTER: ___________________________
The Honorable Neil H. Cohen
Judge, Circuit Court of Cook County
DATED: ___________________________

IN THECIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION
JAMIE KALVEN,
Plaintiff,
v.
THE CITY OF CHICAGO and THE
CHICAGO POLICE DEPARTMENT,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

09 CH 51396
Judge Neil H. Cohen

)
STIPULATION TO DISMISS
IT IS HEREBY STIPULATED AND AGREED by and between the parties
hereto, by their respective attorneys of record, that this matter has been settled
pursuant to the Release and Settlement Agreement executed by the parties and,
therefore, this cause should be dismissed with prejudice in accordance with the
terms of the Release and Settlement Agreement and the Order of Dismissal.
/s/ Craig B. Futterman
____________________________
Craig B. Futterman
One of the Attorneys for Plaintiff
Edwin F. Mandel Legal Aid Clinic
6020 South University Avenue
Chicago, Illinois 60637
(773) 702-9611
Attorney No. 91074
DATE: July 10, 2014

/s/ Stephen R. Patton

_____________________________
Stephen R. Patton
Corporation Counsel
of the City of Chicago
Attorney for Defendants
121 North LaSalle Street,
City Hall, Room 600
(312) 744-0220
Attorney No. 90909
DATE: July 10, 2014

City won't fight to keep citizen complaints against cops secret | Early & Often

PRESENTED BY
BCBSIL

CHICAGO

In 2011, former CPD Officer Jerome Finnigan was sentenced to 12 years in prison for allegedly spearheading a homeinvasion crew of cops and plotting to kill his partner. A Sun-Times analysis showed he generated 52 citizen complaints
between 2001 and 2005 the third most in the department at the time. | AP

City won't fight to keep citizen complaints

against cops secret
FRI, 07/11/2014 - 6:52PM

FRANK MAIN
@SUNTIMES | EMAIL

n a major policy turnabout, Mayor Rahm Emanuel will make citizen complaints against
Chicago Police officers available for public scrutiny, according to city officials.

http://politics.suntimes.com/article/chicago/city-wont-fight-keep-citizen-complaints-against-cops-secret/fri-07112014-652pm[7/12/2014 7:09:55 PM]

City won't fight to keep citizen complaints against cops secret | Early & Often

In March, a state appeals court ruled the city couldnt keep the records secret, and the city vowed
to appeal to the Illinois Supreme Court.
But on Friday, city officials said they wont appeal after all.

We did think we had a strong case and a viable argument, but we decided this comes in line
with our efforts to build relationships between the public and police department and improve
transparency, city spokeswoman Shannon Breymaier said.
The citys decision to release complaints against cops doesnt mean the public will get to see
everything.
Standard exemptions under the Illinois Freedom of Information Act will remain in place,
Breymaier said.
The records will be redacted to make sure the information we give out does not compromise an
investigation or witness confidentiality, she said, adding that the city will hand over files only
after the investigation is completed and the case is closed.
The city will black out names, Social Security numbers and other identifying information about
witnesses and people filing complaints. The city could refuse to release information that could
jeopardize an ongoing law-enforcement investigation. And the city could redact information about
specialized investigative techniques not generally known to the public.
Finally, the city could reject Freedom of Information requests for CR files deemed overly
burdensome.
Asking for every CR for a particular year would be burdensome, a city official said on
background.
But there will not be an automatic, across-the-board refusal to make public police disciplinary
files.
The city was responding to two lawsuits seeking access to CR files, which consist of misconduct
complaints against officers and documents created during the investigations.
In March, a state appeals court ruled on a Freedom of Information request made by independent
http://politics.suntimes.com/article/chicago/city-wont-fight-keep-citizen-complaints-against-cops-secret/fri-07112014-652pm[7/12/2014 7:09:55 PM]

City won't fight to keep citizen complaints against cops secret | Early & Often

journalist and activist Jamie Kalven. The appeals court found that CR files and so-called Repeater
List, or RL, files are both open to the public.
RL files identify police officers who have accumulated the most misconduct complaints. At issue
were two RL files that named officers with the most complaints between 2001-06 and 2002-08.
City officials said they have agreed to turn over both types of files.
By allowing access to these records, the Chicago Police Department will further demonstrate that
it takes allegations of police misconduct seriously, Chicago Police Supt. Garry McCarthy said in
a prepared statement.
Craig Futterman, an attorney for Kalven, added: We applaud the policy sea change on this matter
brought about by the Emanuel administration.
Futterman, a University of Chicago law professor, is a longtime critic of the police departments
disciplinary system.
In connection with a police misconduct lawsuit he filed on behalf of a client in 2004, Futterman
found less than 1 percent of misconduct allegations against Chicago Police officers were sustained
by the departments internal investigations a far lower rate than the national average.
In a prepared statement, though, the city put part of the blame on the people who file the
complaints.
Historically, several thousand complaints about police misconduct have been made annually,
though the complainant [completed] the required paperwork on fewer than half those cases,
according to the city.

CHICAGO POLICE DEPARTMENT

MAYOR RAHM EMANUEL

CITIZEN COMPLAINTS

http://politics.suntimes.com/article/chicago/city-wont-fight-keep-citizen-complaints-against-cops-secret/fri-07112014-652pm[7/12/2014 7:09:55 PM]

POLICING CHICAGO PUBLIC SCHOOLS:

A GATEWAY TO THE SCHOOL-TOPRISON PIPELINE
A REPORT BY PROJECT NIA - JANUARY 2012
WRITTEN BY MARIAME KABA & FRANK EDWARDS

Image created by youth artist for Suspension Stories www.suspensionstories.com

For information about Project NIA, visit (www.project-nia.org) Download this report at http://policeincps.com

INTRODUCTION
Last summer, Chicago Public Schools (CPS) proposed purchasing new surveillance cameras for fourteen (14) high
schools at a cost of $7 million dollars. The Chicago Tribune reported that:
Footage from up to 80 high-definition cameras could be monitored by CPS and will
be fed to a nearby police station, then linked into the citywide network of
surveillance cameras. That network includes cameras operated by the Chicago Police
Department, Office of Emergency Management and Communications and Chicago
Transit Authority. Images from the cameras can also be viewed on officials'
1

cellphones.

When news of this proposal surfaced, some critics suggested that at a time when CPS is facing a budget deficit of
over $600 million dollars, such an investment in new surveillance equipment was questionable at best. Some
supporters argued, however, that the district would eventually save money because the cameras would reduce the
need for police officers in schools. It fell to student Alan Zavala quoted in the Tribune article to point out the
obvious: "They're criminalizing us," Zavala said. "They're treating us like we're in prison." The preoccupation in
many urban public schools with security -- driven by fear and the obligation to keep our children relatively safe -has unfortunately engendered an explicit school-to-prison connection.
st

In the 21 century, it is verboten to question whether cops should even be in schools. Police officers in our schools
have become synonymous with safety. It is taken for granted that they belong in our classrooms. In an
interview about his school discipline research, sociologist Aaron Kupchick (2010) gives voice to this reality:
As part of my research, I interviewed students, and one of the questions that
seemed like a good idea at the start was asking them whether they liked having the
SROs [school resource officers] in their schools. For me, having gone to public schools
without cops, this really seemed odd to me, to put police officers in peaceful schools.
And the students were puzzled by this question, and I quickly realized that it makes
no sense to them because its all theyve ever known. Its completely normal. It
makes about as much sense as if you asked them, Should your school have a
2
principal?
Police officers are considered so essential that when CPS gave high schools the opportunity this summer to
exchange their police officers for $25,000 in return, only four (4) schools gave up both of their assigned officers
3
while a dozen (12) gave up one of their cops. In 2010, there were 122 high schools in the CPS system. This means
that only 3 percent of schools were interested in giving up both of their assigned officers while another 10 percent
were willing to part with only one.

Chicago Tribune (7/24/11) - http://articles.chicagotribune.com/2011-07-24/news/ct-met-cps-security-cameras-072420110724_1_security-cameras-surveillance-cameras-surveillance-network

2

Sullivan, J (8/29/10) Americas real school safety problem.

http://www.salon.com/2010/08/29/homeroom_security_ext2010/
3

Karp, Sarah. Citing Safety, Most High Schools Keeping Police. Catalyst Chicago (10/28/11) - http://www.catalystchicago.org/notebook/2011/10/28/citing-safety-most-high-schools-keeping-police

The Chicago Police Department (CPD) charges CPS $25 million a year for two police officers at each high school.
But because the district hasn't paid the full amount in previous years, it will have to pay $70 million in the 2011
school year. CPS estimates that it costs $75,000 a year to have a police officer stationed at a school for daily 8
hour shifts. A coalition of student researchers, called Voices of Youth in Chicago Education (VOYCE), found that:
In 2010, Chicago Public Schools spent $51.4 million on school-based security guards, about 15 times more than
4
the $3.5 million it spent on college and career coaches. As education budgets shrink, it makes sense to question
schools heavy investment in policing, surveillance and security
Though school police officers date back to the 1950s, they did not become prevalent until the 1990s. A spate of
school shootings in the 90s convinced the Federal government to allocate resources to local school districts for the
hiring of law enforcement officials. Today about 35 percent of elementary, middle and high schools have police
5
officers. As a result, many of our schools have become the gateway for young peoples involvement in the juvenile
and adult criminal legal systems.
In the last 15 years, advocates, students, educators, and researchers have pointed out the existence of a school-to6
prison pipeline (STPP). The STPP describes how harsh school discipline policies and law enforcement policies
intersect to feed young people into the prison system. Police officers play a critical role in this pipeline and many of
them seem to recognize this fact. A school police officers union in California recently created an uproar by
designing and selling t-shirts depicting a young boy behind prison bars with the words: U Raise Em, We Cage
7
Em. The local community was rightly incensed by this; yet it should not have come as a surprise that cops see
their role in schools as arresting and incarcerating young people.
We can be fooled into believing that schools with metal detectors, surveillance cameras, and police officers feel
safe to students, teachers, and staff. However, data from the Consortium on Chicago School Research (CCSR)
suggests something different:
it is the quality of relationships between staff and students and between staff and
parents that most strongly defines safe schools. Indeed, disadvantaged schools with
high-quality relationships actually feel safer than advantaged schools with low8
quality relationships.
In addition, the presence of police officers in our schools often has negative ramifications for students. A new
national study by the Justice Policy Institute titled Education Under Arrest makes a convincing case that:
when schools have law enforcement on site, students are more likely to get
arrested by police instead of having discipline handled by school officials. This leads

Voices of Youth in Chicago Education (2011). Failed Policies, Broken Futures: The True Cost of Zero Tolerance in Chicago.
http://www.voyceproject.org/sites/default/files/VOYCE%20report%202011.pdf
5

Ramirez, Rosa (Nov 2011). Some Oakland parents question need for school police.
http://www.healthycal.org/archives/6062
6

The School to Prison Pipeline describes the reality that many young people are being pushed out of school and into the
juvenile and adult legal systems because of harsh discipline policies, high stakes testing, and social oppression.
7

Sacramento Bee (11/15/11). Twin Rivers Police Association stops sales of controversial T-shirts.
http://www.sacbee.com/2011/11/01/4020655/twin-rivers-police-association.html#ixzz1ceD29OXC
8

Steinberg, M., Allensworth, E. and David W. Johnson (May, 2011). Student and Teacher Safety in Chicago Public Schools: The
Roles of Community Context and School Social Organization. http://ccsr.uchicago.edu/publications/SAFETY%20IN%20CPS.pdf

to more kids being funneled into the juvenile justice system, which is both expensive
9
and associated with a host of negative impacts on youth.

CEMENTING THE RELATIONSHIP BETWEEN POLICE AND SCHOOLS

Instead of looking for ways to disrupt the increasingly symbiotic relationship between schools and law
enforcement, administrators are looking for ways to cement those ties. Here in Illinois, an effort is underway to
violate student privacy by mandating the exchange of information between law enforcement and schools:
Right, in Illinois, while information-sharing agreements between schools and police
are suggested in the states school code, they are not required. Schools that have
them usually do not spell out how communication should happen, nor how quickly,
nor do they keep any sort of data on student police reports and arrests. And police
arent required to communicate to school officials about ongoing investigations at
all

10

Some in the state are looking to change these reporting requirements. Mundelein Police Chief Ray Rose offered
his rationale for increasing the exchange of information between schools and law enforcement:
Years ago we used to talk about schools being the safe place. Thats questionable
now, Rose said. Because specific information sharing about students isnt required,
11
We dont know what theyve been involved in.
The assertion that it is questionable that schools are the safe place is preposterous. Schools ARE in fact still the
safest places for most young people to spend their days. They always have been and still are. Research backs up
this claim. According to the National Center for Education Statistics, incidence of violent crime in schools, already
low, was halved between 1993 and 2008. Schools are safer places for most young people than their homes are.
It appears that law enforcement is interested in extending its reach even further into our schools. This is evidenced
by another effort taking place between Chicago Police and Chicago Public Schools to launch a school-based
CompStat pilot program for high schools:
CompStat involves weekly crime control strategy meetings during which
commanders share and discuss crime incidents, patterns and trends with command
staff. The meetings focus on the statistical analysis of crime, where it occurs, how
often and by whom, evaluate that and hold commanders accountable for the
decisions they have made and the impact they have had on crime in their districts.
School-based CompStat will be unique from CPD CompStat, in part, because inschool and school level infraction and incident data will be reviewed in addition to
neighborhood incidents. They will be viewed in relation to the violence that occurs

Petteruti, Amanda (Nov 2011). Education Under Arrest: The Case Against Police in Schools.
http://www.justicepolicy.org/research/3177
10

Lester, Kerry (12/4/11) Working to Make Schools The Safe Place Daily Herald.

11

Ibid
4

around the school and in the surrounding community, giving educators and the police
12
department a more complete picture.
This increased surveillance within and outside of our school-buildings is being billed by Mayor Rahm Emmanuel as
helping to create a culture of accountability so we can end crime near our schools and make sure our students
13
can focus on their studies, not their safety.

WHY THIS REPORT NOW?

Our schools have become almost like satellite police stations. Steve Drizin

14

15

In the 2003-2004 academic year, CPS had about 1,700 security staff, nearly tripling in number in five years. We
were unable to obtain the current number of security guards in CPS despite repeated requests. We are sure that
this number exceeds the 1,700 from the 2003-2004 academic year. The presence of so many security staff and
especially police officers in schools means that school discipline issues quickly turn into police records.
In our discussions about the school-to-prison pipeline, we need concrete examples of how the process works. As
such, it is important to understand the role that police and security staff play in our schools. Yet reports about
police involvement in CPS have unfortunately not been readily available to the public. There is no easily accessible
citywide or statewide data that illustrate how many students are arrested in schools each year. The last report
that was written about the role of police in Chicago Public Schools was published in 2005 by the Advancement
Project. That report, Education on Lockdown, found that Chicago Public Schools (CPS) referred over 8,000
students to law enforcement in 2003. Forty percent of these referrals were for simple assault or battery with no
16
serious injuries. Most of these cases were dismissed.
In this report, we rely on data from the Chicago Police Department to show (for the first time in seven years) the
type of offenses and the demographics (gender, age and race) of the juveniles arrested on CPS properties in
calendar year 2010. We are limited because CPD reports data by police district rather than by individual school. A
FOIA request filed by First Defense Legal Aid to the Chicago Public Schools requesting school-level arrest data has
gone unfulfilled even after several months.
Our purpose in writing this report is to ensure that the public is informed about the scope and extent of policing in
Chicago Public Schools. We hope that this will galvanize educators, parents, students, policymakers and
community members to advocate for a dramatic decrease of CPSs reliance on law enforcement to address school

12

Press Release, City of Chicago, 12/13/11.

http://www.cityofchicago.org/content/city/en/depts/mayor/press_room/press_releases/2011/december_2011/mayor_emanu
el_attendsfirstjointschool-basedcompstatmeetingwithcp.html
13

Ibid.

14

Quote by Steve Drizin, director of the Center on Wrongful Convictions of Youth at Northwestern University
http://cwcy.org/resources/396_attach_Taking%20a%20hard%20look%20at%20police%20in%20schools%20by%20Tony%20Ma
uro%202.9.11.pdf
15

Advancement Project, Education on Lockdown: The schoolhouse to jailhouse track. (Washington, DC: Advancement Project,
2005). http://www.advancementproject.org/digital-library/publications/education-on-lockdown-the-schoolhouse-to-jailhousetrack
16

Ibid

discipline issues. Instead, we would like to see an increase in the use of restorative justice, which is an effective
approach, to respond to student misbehavior in our schools.
In light of a push for budget austerity, limited resources should be re-directed away from policing and into
affirming programs and opportunities for students. This, we believe, will improve the overall well-being of all
stakeholders in the educational system (most especially students). We also call on our city council to improve data
transparency by passing an ordinance requiring CPS and CPD to report quarterly on the numbers of students
arrested in the district. Having timely and reliable information will support efforts to hold CPS and CPD
accountable. Finally, we believe that student privacy should be protected rather than further eroded. Current
reporting practices between schools and law enforcement do not need to be reformed to increase the exchange of
student information between these parties.

About The Authors

Mariame Kaba is the founding director of Project NIA. She is an educator, organizer, and writer who lives in
Chicago. Her work focuses on ending violence, dismantling the prison industrial complex and supporting youth
leadership development. Mariame was a program officer for education and youth development at the Steans
Family Foundation from 2004-2009. She has also been a consultant helping organizations to develop their
evaluation capacity. Mariame is a published author, curriculum developer, and has served on numerous nonprofit
boards.
Frank Edwards is a researcher and activist who lives in Chicago. He holds an M.A. in sociology from Depaul
University, and is a longtime organizer for reform in the adult criminal justice and juvenile justice systems. Frank is
a volunteer at Project NIA and for several other local grassroots organizations.

SOME BACKGROUND ABOUT CHICAGO PUBLIC SCHOOLS

In the 2009-2010 academic year, there were 409,279 students enrolled in 675 public schools in Chicago. Most CPS
students are African-American (45%) and Latino/Hispanic (41%). Eighty-six percent of students who attend CPS are
low-income and receive free or reduced-price lunches. The districts operating budget was over $5 billion dollars.
Chicago Public Schools (2009-2010)
African-American

45%

Latino

41%

White

9%

Asian/Pacific Islander

3.6%

Native American
Percentage of Students from Low-Income Families
(Receive reduced-price or free lunch)
Number of Schools

0.2%

Elementary Schools

482

High Schools

122

Charter Schools

71

Operating Budget

$5.328 billion

Total Student Enrollment

Source: Chicago Public Schools At A Glance (retrieved 10/2011)

409,279

86%
675

ARRESTS ON CHICAGO PUBLIC SCHOOL PROPERTIES

In 2011, First Defense Legal Aid (FDLA) and Project NIA each filed freedom of information act (FOIA) requests to
receive data about school-based arrests from the Chicago Police Department (CPD). The data that is reported in
this section draws from information obtained through those requests. The data covers calendar years rather than
academic years. In addition, CPD reported the data by police district rather than by individual school.
As you read through this report, please be aware of a few important things. Arrest statistics report the number of
arrests that the police made in a given year. They do not describe the number of individuals arrested or the
number of crimes committed. As Puzzanchera and Adams point out:
The number of arrests is not the same as the number of people arrested because an
unknown number of individuals are arrested more than once during the year. Nor do
arrest statistics represent the number of crimes that arrested individuals commit
because a series of crimes that one person commits may culminate in a single arrest,
and a single crime may result in the arrest of more than one person. This latter
situation, where many arrests result from one crime, is relatively common in juvenile
law-violating behavior because juveniles are more likely than adults to commit
17
crimes in groups.

17

Puzzanchera, Charles and Adams, Benjamin (2011, Dec). Juvenile Arrests 2009. U.S. Department of Justice, Office of
Juvenile Justice and Delinquency Prevention. http://www.ojjdp.gov/pubs/236477.pdf

SECTION ONE: WHO GETS ARRESTED IN CHICAGO PUBLIC SCHOOLS?

TOTAL SCHOOL-BASED ARRESTS 18
According to the Chicago Police Department (CPD), there were 6,430 total arrests on Chicago Public School
properties in 2010. Men accounted for 73.5 percent (4,727) of these total school-based arrests.

School Based Arrests in 2010 (All Ages)

Male
Female

Source: CLEAR (queried on 12/20/11) obtained through Project NIA FOIA request

In 2010, Blacks represented 74 percent (4,737) of total school based arrests (of people of all ages) and Latinos
19
accounted for 22 percent (1,438).

School Based Arrests in 2010 (All Ages)

Black
Latino
White
Other Racial Group

Source: CLEAR (queried on 12/20/11) obtained through Project NIA FOIA request

18

Includes all ages (including adults). Youth under 21 years old account for 96% of this total number (or 6176)

19

Other Racial Group includes those categorized by police as American Indian/Alaskan Native, Asian/Pacific Islander, and
Unknown.

JUVENILE SCHOOL-BASED ARRESTS (AGES 17 AND UNDER)

According to data from the Chicago Police Department, in 2010, there were 27,563 total juvenile arrests in the City
of Chicago. 5,574 of these were juvenile school-based arrests. This is down from 5,651 in 2009, representing a
decrease of about 1.4 percent. Based on CPD data, 20% of Chicago juvenile arrests take place at public school
locations.
Arrests at Public School Locations - Juveniles 17 and Under
2009
2010
5,651
5,574
Source: CLEAR (queried 3/8/11) Obtained through FDLA FOIA request

% Change
-1.4%

In 2010, young men (4,080 juvenile arrests) were much more likely to be arrested at school than their female peers
(1,486 juvenile arrests).

School Based Arrests in 2010 (Juvenile)

Male
Female

Source: CLEAR (queried on 1/03/12) obtained through Project NIA FOIA request

Black youth accounted for 74 percent of school-based juvenile arrests in 2010; while Latino youth represented 22.5
percent of arrests of young people. 45 percent of CPS students are African American while 41 percent are Latino
(CPS, 2009). The numbers illustrate that black youth are disproportionately targeted for arrest in CPS. This
mirrors the general trend of disproportionate minority contact within the juvenile legal system. For example, while
they comprise only 34% of youth ages 5 to 17 in the city of Chicago, African American youth accounted for 76% of
citywide juvenile arrests (youth 17 and under) in 2010.

School Based Arrests in 2010 (Juvenile)

Black
Latino
White
Other Racial Group

Source: CLEAR (queried on 1/03/12) obtained through Project NIA FOIA request

SECTION TWO: WHAT OFFENSES ARE PEOPLE ARRESTED FOR?

ALL SCHOOL-BASED ARRESTS (INCLUDES ALL AGES)
The following table describes the racial breakdown of school-based offenses for all age groups. We know however
that 96 percent of these offenses are committed by young people under 21 years old. As such, this table is also
instructive about the racial demographics of juvenile school-based offenses. The table makes clear that the
majority of offenses fall in the categories of simple battery, disorderly conduct, and drug violations. The vast
majority of school-based arrests are classified by the Chicago Police Department as non-index offenses which are
generally considered less serious crimes.
Arrests on CPS Property by Offense and Race (All Ages)
Offense
Black
Homicide
3
Criminal Sexual Assault
10
Robbery
152
Aggravated Assault
310
Aggravated Battery
317
Burglary
78
Larceny-Theft
189
Motor Vehicle Theft
14
Simple Assault
169
Simple Battery
1315
Arson
3
Forgery and Counterfeiting
0
Fraud
4
Vandalism
69
Weapons
142
Prostitution
0
Sex offense, Criminal Sexual Abuse
11
Drug abuse violation
454
Gambling
26
Offenses Against Family and Children
2
DUI
0
Liquor law
4
Disorderly Conduct
873
Misc. Non-Index
494
Misc. Municipal Code
15
Traffic
1
Warrant arrest
84
Total
4739

Latino
0
3
10
53
51
9
54
1
33
329
0
0
0
98
47
1
3
324
0
1
0
13
252
145
2
0
9
1438

White
0
0
2
10
9
1
8
0
4
52
0
0
0
9
6
0
4
54
0
0
0
3
28
24
0
0
3
217

Other
0
0
0
0
2
0
3
0
0
10
0
0
0
2
2
0
0
8
0
0
0
0
8
3
0
0
1
39

Total
3
13
164
373
379
88
254
15
206
1706
3
0
4
178
197
1
18
840
26
3
0
20
1161
666
17
1
97
6433

10

JUVENILE SCHOOL-BASED ARRESTS (AGES 20 AND UNDER)

20

The following table is adapted from CPDs report of its total number of juvenile school-based offenses in 2010.
The table categorizes the top five school-based offenses by gender. Male youth under 21 years old are most often
arrested on CPS property for simple battery followed by drug abuse violations and disorderly conduct. Females
under 21 are most often arrested for simple battery, disorderly conduct and miscellaneous non-index offenses.
Nearly a third (27%) of school-based arrest offenses on CPS property is simple battery. This suggests that a
significant number of CPS students are being arrested for fighting. Youth 16 and under accounted for 70% of total
school-based offenses and young people ages 17 to 20 for 26% of these offenses. This means that 96% of total
school-based offenses are committed by youth under 21 years old.
Top five reported offenses for juvenile arrests on CPS Property by Gender
2010 Rank
Offense Type (Male)
Number (%) Offense Type (Female)
1
Simple Battery
1039 (17%) Simple Battery
2
Drug Abuse Violations
724 (12%)
Disorderly Conduct
3
Disorderly Conduct
724 (12%)
Misc. Non-Index Offenses
4
Misc. Non-Index Offenses
466 (7.5%)
Aggravated Battery
5
Aggravated Assault
296 (4.7%)
Drug Abuse Violations
Source: CLEAR (queried 9/6/11) Obtained through FDLA FOIA request

20

Number (%)
618 (10%)
403 (6.5%)
134 (2%)
108 (1.7%)
98 (1.6%)

In this section, we consider youth ages 20 and under because of the way that CPD presented the data in its report to us.

11

SECTION THREE: WHERE ARE SCHOOL-BASED ARRESTS HAPPENING?

th

th

th

nd

th

The highest aggregate numbers of juvenile school-based arrests are in the 4 , 6 , 8 , 22 , and 5 police
21
districts. Together these five districts account for 39% of total juvenile school-based arrests on CPS properties.
2010 Rank

Police District

Juvenile School Arrests

04 South Chicago

543

08 Chicago Lawn

532

06 Gresham

379

22 Morgan Park

370

05 Pullman

345

You might wonder how these school-based arrest numbers dovetail with the overall numbers of juvenile arrests in
the city. The chart below compares the top five districts in terms of their overall juvenile arrest numbers and their
nd
school-based arrest numbers. With the exception of the 22 district, all of the others rank in the top 10 for both
nd
th
the numbers of total juvenile arrests and for juvenile school-based arrests. The 22 district ranks 12 in the
th
th
number of total juvenile arrests in Chicago and 4 in juvenile school-based arrests. Interestingly although the 11
th
and 15 districts rank near the top of total juvenile arrests in
nd
rd
th
th
Chicago (2 and 3 respectively), they rank 10 and 14 in
terms of the number of school-based juvenile arrests. It is
hard to know what to make of this. Both of these districts
rank highly in terms of the aggregate number of school-aged
youth in their communities.
Rank

Total Juvenile Arrests

08 Chicago Lawn
(2,247)

2
3
4
5

11 Harrison (2,141)
15 Austin (1,975)
04 South Chicago
(1,914)
06 Gresham (1,660)

School Based Juvenile

Arrests
04 South Chicago
(543)
08 Chicago Lawn
(532)
06 Gresham (379)
22 Morgan Park
(370)
05 Pullman (345)

21

Unfortunately, we do not have access to information about the number of school-aged children and youth in each police
district. If we did, we could present information about the rates of juvenile school-based arrests per district rather than simply
the aggregate numbers. This would make comparisons between districts more valid.

12

SECTION FOUR: CONCLUSION AND RECOMMENDATIONS

This report highlights several key issues:
1.

2.

3.
4.

5.

Seven years after the Education on Lockdown report, too many young people are still being arrested on
CPS properties. Over 5,500 arrests of young people under 18 years old took place on CPS properties in
2010. If we include those between 18 and 20 years old, the number increases to over 6,100 arrests.
Black youth are disproportionately targeted by these arrests. While they represent 45% of CPS students,
black youth account for 74% percent of juvenile school-based arrests. This mirrors the general trend of
disproportionate minority contact within the juvenile legal system. For example, while they comprise only
34% of youth ages 5 to 17 in the city of Chicago, African American youth accounted for 76% of citywide
juvenile arrests (youth 17 and under) in 2010.
Young men are much more likely to be arrested on CPS properties than are their female counterparts
[73% vs. 27%].
Male youth under 21 years old are most often arrested on CPS property for simple battery followed by
drug abuse violations and disorderly conduct. Females under 21 are most often arrested for simple
battery, disorderly conduct and miscellaneous non-index offenses. Nearly a third (27%) of school-based
arrest offenses on CPS property is simple battery. This suggests that a significant number of CPS students
are probably being arrested for fighting.
Certain police districts are more likely to arrest youth in schools than others. In particular, the highest
22
th
th
th
nd
th
aggregate numbers of juvenile school-based arrests are in the 4 , 6 , 8 , 22 , and 5 police districts.
Together these five districts account for 39% of total juvenile school-based arrests on CPS property.

In light of the issues raised in this report, we recommend a few solutions intended to help reduce the reliance on
law enforcement in our schools.
1.
2.

3.
4.

CPS needs to move beyond the rhetoric of restorative justice and fully fund credible restorative programs
in the schools.
We need timely and reliable data tracking the numbers of school-based arrests in CPS. Based on the
advocacy of students and organizers, the New York City Council passed the Student Safety Act in early
2011. According to the New York Civil Liberties Union, the Student Safety Act creates accountability and
transparency over police behavior in our schools. Specifically, the Student Safety Act:
Requires the Department of Education to report to the City Council on the numbers of suspensions,
expulsions, arrests and student-police altercations in schools. The City Council can then track and
monitor whether discipline is being enforced equally for all students.
Provides lawmakers and the public vital access to raw data on school disciplinary actions.
Increases transparency at the NYPD School Safety Division and the Department of Education.
Chicago needs its own Student Safety Act.
We call on CPS to re-direct resources away from policing to enrichment programs that will support the
healthy development of students.
Finally, we call on policymakers, law enforcement, and school administrators to ensure the privacy of
student records. We strongly oppose the efforts to violate student privacy by increasing informationsharing between law enforcement and educational institutions.

22

We wish that we could compare arrest rates per district but we cannot access total numbers of youth in each district in order
to do those calculations. Arrest rates would tell us more about whether certain districts are disproportionately targeting youth
for school-based arrests.

13

USEFUL RESOURCES

Image from the School-to-Prison Pipeline Zine by Rachel Marie Carson-Williams, Part of the Cradle-to-Prison
Pipeline Comic Project - http://juvenileinjustice.wordpress.com/

MORE INFORMATION ABOUT POLICING IN SCHOOLS & RESTORATIVE JUSTICE

Arresting Justice: A Report on Juvenile Arrests in Chicago 2009 & 2010 by Caitlin Patterson and
Mariame Kaba (2011). http://arrestjustice.wordpress.com/
Criminalizing the Classroom: The Over-Policing of New York City Schools by the New York Civil
Liberties Union (2007). http://www.nyclu.org/pdfs/criminalizing_the_classroom_report.pdf
Education on Lockdown: The Schoolhouse to Jailhouse Track by the Advancement Project (2005) -http://www.advancementproject.org/digital-library/publications/education-on-lockdown-theschoolhouse-to-jailhouse-track
Education Under Arrest: The Case Against Police in Schools by Amanda Petteruti. Justice Policy
Institute (2011) -- http://www.justicepolicy.org/research/3177
Parent-to-Parent Guide: Restorative Justice in Chicago Public Schools by POWER-PAC (2010) -http://www.cofionline.org/power_pac.php?id=47

14

APPENDIX FULL DATA

23

Total Arrests by Gender (Chicago Public School Properties, City of Chicago, 2010)

DISTRICT
FEMALE
MALE
01
9
17
02
47
150
03
76
202
04
176
442
05
117
267
06
123
300
07
78
183
08
154
433
09
72
222
10
33
122
11
87
193
12
77
275
13
37
126
14
25
71
15
86
155
16
43
140
17
74
258
18
14
72
19
24
65
20
56
227
21
37
152
22
137
304
23
8
23
24
14
70
25
99
258
TOTAL
1,703
4,727
Source: CLEAR (12/20/2011) obtained through NIA FOIA request

23

TOTAL
26
197
278
618
384
423
261
587
294
155
280
352
163
96
241
183
332
86
89
283
189
441
31
84
357
6,430

Includes all ages (including adults). Youth under 21 years old account for 96% of this total number (or 6176)

15

24

Total Arrests by Race (Chicago Public School Properties, City of Chicago, 2010)

DISTRICT

AMERICAN
INDIAN/
ALASKAN
NATIVE

ASIAN/
PACIFIC
ISLANDER

BLACK

BLACK
HISPANIC

01
0
0
21
1
02
0
0
194
0
03
0
0
278
0
04
0
2
540
3
05
0
0
381
1
06
0
1
421
0
07
0
0
261
0
08
0
3
349
2
09
0
1
109
1
10
0
0
94
0
11
0
0
270
1
12
0
1
223
2
13
0
0
110
6
14
0
2
37
6
15
0
0
241
0
16
0
4
55
2
17
2
7
70
4
18
0
1
74
0
19
0
3
39
0
20
0
6
141
1
21
0
0
188
0
22
0
0
433
1
23
2
1
22
0
24
0
0
69
0
25
0
1
117
8
TOTAL
4
33
4,737
39
Source: CLEAR (12/20/11) obtained through NIA FOIA request

24

WHITE HISPANIC

WHITE

UNKNOWN

TOTAL

1
3
0
72
1
1
0
196
174
58
8
115
43
49
0
79
216
5
32
106
0
4
5
13
218
1,399

3
0
0
1
1
0
0
37
9
3
1
11
4
2
0
42
33
6
15
29
1
3
1
2
12
216

0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0
0
1
2

26
197
278
618
384
423
261
587
294
155
280
352
163
96
241
183
332
86
89
283
189
441
31
84
357
6,430

Includes all ages (including adults). Youth under 21 years old account for 96% of this total number (or 6176).

16

25

Total Arrests by Offense Type (Public School Locations, City of Chicago, 2010)

DISTRICT

MUNICIPAL
NON-INDEX
TRAFFIC
WARRANT
CODE
OFFENSES
OFFENSES
ARRESTS
VIOLATIONS
01
3
0
23
0
0
02
42
0
142
0
13
03
59
0
214
0
5
04
133
0
473
0
12
05
100
0
274
0
10
06
108
1
310
0
4
07
84
5
168
0
4
08
120
1
460
0
6
09
43
0
247
0
4
10
46
0
107
0
2
11
64
1
213
0
2
12
59
0
290
0
3
13
30
0
131
0
2
14
20
0
74
0
2
15
47
5
186
0
3
16
23
0
160
0
0
17
40
2
289
0
1
18
20
1
63
0
2
19
22
0
66
0
1
20
47
0
235
0
2
21
42
0
146
1
1
22
63
0
371
0
8
23
3
0
26
0
2
24
16
0
67
0
1
25
58
1
291
0
7
TOTAL
1,292
17
5,026
1
97
Source: CLEAR (September 6, 2011) obtained through First Defense Legal Aid FOIA request

25

INDEX
OFFENSES

TOTAL

26
197
278
618
384
423
261
587
294
155
280
352
163
96
241
183
332
86
89
284
190
442
31
84
357
6,433

Includes all ages.

17

Arrests by Offense by Age and Gender (Public School Location, City of Chicago, 2010)
Offense
st
nd
HOMICIDE 1 or 2 Degree (01A)

Gender
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M
F
M

16 and Under
0
2
CRIMINAL SEXUAL ASSAULT (02)
0
7
ROBBERY (03)
5
129
AGGRAVATED ASSAULT (04A)
48
228
AGGRAVATED BATTERY (04B)
105
261
BURGLARY (05)
3
68
LARCENY THEFT (06)
26
162
MOTOR VEHICLE THEFT (07)
1
10
SIMPLE ASSAULT (08A)
35
106
SIMPLE BATTERY (08B)
4600
755
ARSON (09)
0
3
FORGERY & COUNTERFEITING (10)
0
0
FRAUD (11)
0
3
VANDALISM (14)
15
134
WEAPONS (15)
48
102
PROSTITUTION (16)
0
0
SEX OFFENSE CRIMINAL SEXUAL ABUSE (17)
0
11
DRUG ABUSE VIOLATIONS (18)
68
492
GAMBLING (19)
0
8
OFFENSES AGAINST FAMILY & CHILDREN (20)
0
0
DRIVING UNDER THE INFLUENCE (21)
0
0
LIQUOR LAWS (22)
2
7
DISORDERLY CONDUCT (24)
276
491
MISCELLANEOUS NON-INDEX OFFENSES (26)
96
255
MISCELLANEOUS MUNICIPAL CODE VIOL
0
8
TRAFFIC VIOLATIONS
0
0
WARRANT ARRESTS
9
48
TOTAL
4,487
Source: CLEAR (September 6, 2011) obtained through First Defense Legal Aid FOIA request

17 - 20
0
1
0
4
2
26
15
68
3
8
1
10
9
49
0
1
20
30
158
284
0
0
0
0
0
0
3
23
21
22
0
1
1
2
30
232
0
11
1
0
0
0
1
10
127
233
38
211
0
4
0
0
5
24
1,689

TOTAL
0
3
0
11
7
155
63
296
108
269
4
78
35
211
1
11
55
136
618
1039
0
3
0
0
0
3
18
157
69
124
0
1
1
13
98
724
0
19
1
0
0
0
3
17
403
724
134
466
0
12
0
0
14
72
6,176 (96%)

18

Arrests at Public School Locations by District (City of Chicago, 2009 & 2010) Juveniles 17 and Under
DISTRICT
2009
2010
01
7
5
02
155
178
03
227
238
04
530
543
05
352
345
06
375
379
07
244
225
08
482
532
09
213
267
10
100
133
11
320
255
12
369
308
13
141
120
14
55
73
15
182
215
16
254
160
17
275
287
18
71
71
19
95
80
20
233
236
21
114
161
22
447
370
23
28
11
24
93
71
25
289
311
TOTAL
5,651
5,574
Source: CLEAR DW queried 3/8/11 Obtained through FDLA FOIA request

TOTAL
12
333
465
1,073
697
754
469
1,014
480
233
575
677
261
128
397
414
562
142
175
469
275
817
39
164
600
11,225

**Includes location codes that reflect public schools buildings and public school grounds

19

Total Juvenile Arrests (17 & Under) by Race (Chicago Public School Properties, City of Chicago, 2010)

DISTRICT

AMERICAN
ASIAN/
BLACK
BLACK
INDIAN/
PACIFIC
HISPANIC
ALASKAN
ISLANDER
NATIVE
01
0
0
4
0
02
0
0
175
0
03
0
0
238
0
04
0
2
470
1
05
0
0
343
1
06
0
1
376
0
07
0
0
225
0
08
0
3
314
2
09
0
1
96
1
10
0
0
84
0
11
0
0
247
1
12
0
1
193
2
13
0
0
89
5
14
0
2
32
3
15
0
0
215
0
16
0
4
49
2
17
2
5
61
4
18
0
1
62
0
19
0
1
35
0
20
0
5
116
1
21
0
0
159
0
22
0
0
362
1
23
0
1
6
0
24
0
0
58
0
25
0
1
104
8
TOTAL
2
28
4,113
32
Source: CLEAR (1/3/12) obtained through NIA FOIA request

WHITE
HISPANIC

WHITE

UNKNOWN

TOTAL

1
3
0
68
1
1
0
184
159
47
7
104
23
35
0
69
193
3
31
90
0
3
3
13
186
1,224

0
0
0
1
0
0
0
29
9
2
0
8
3
1
0
35
22
5
13
23
0
2
1
0
11
165

0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0
0
1
2

5
178
238
542
345
378
225
532
266
133
255
308
120
73
215
160
287
71
80
235
159
368
11
71
311
5,566

20

Arrests at Public School Locations by Gender & District (City of Chicago, 2009 & 2010) Juveniles 17 and Under

DISTRICT
FEMALE
MALE
01
1
4
02
41
137
03
62
176
04
164
378
05
103
242
06
103
275
07
67
158
08
135
397
09
63
203
10
29
104
11
79
176
12
64
244
13
27
93
14
21
52
15
81
134
16
37
123
17
69
218
18
13
58
19
21
59
20
49
186
21
33
126
22
122
246
23
4
7
24
13
58
25
85
226
TOTAL
1,486
4,080
Source: CLEAR DW queried 1/3/12 Obtained through NIA FOIA request

TOTAL
5
178
238
542
345
378
225
532
266
133
255
308
120
73
215
160
287
71
80
235
159
368
11
71
311
5,566

**Includes location codes that reflect public schools buildings and public school grounds

21

Arrests at Public School Locations by District & Rank (City of Chicago, 2010) Juveniles 17 and Under
DISTRICT

2010

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TOTAL

5
178
238
543
345
379
225
532
267
133
255
308
120
73
215
160
287
71
80
236
161
370
11
71
311
5,574

Percent of Total Juvenile School-Based

Arrests (17 and under)
0.09
3.19
4.27
9.74
6.19
6.8
4.04
9.54
4.79
2.39
4.57
5.53
2.15
1.31
3.86
2.87
5.15
1.27
1.44
4.23
2.89
6.64
0.2
1.27
5.58
100%

RANK
th

25
th
15
th
11
st
1
th
5
rd
3
th
13
nd
2
th
9
th
18
th
10
th
7
th
19
rd
23
th
14
th
17
th
8
st
21
th
20
th
12
th
16
th
4
th
24
st
21
th
6

26

A. Total school-based arrests (includes all ages)

According to the Chicago Police Department (CPD), there were 6,430 total arrests on Chicago Public School
properties in 2010. Men accounted for 73.5 percent (or 4,727) of these total school-based arrests.
ALL DISTRICTS

FEMALE
MALE
1,703
4,727
Source: CLEAR (queried on 12/20/11) obtained through NIA FOIA request

TOTAL
6,430

**Includes location codes that reflect public schools buildings and public school grounds

26

Includes all ages (including adults). Youth under 21 years old account for 96% of this total number (or 6176)

22

In 2010, Blacks represented 74 percent of total school based arrests (of people of all ages) and Latinos accounted
for 22 percent.
ALL
DISTRICTS

AMERICAN
ASIAN/
BLACK
BLACK
WHITE
INDIAN/
PACIFIC
HISPANIC
HISPANIC
ALASKAN
ISLANDER
NATIVE
4
33
4,737
39
1,399
Source: CLEAR (queried on 12/20/11) obtained through NIA FOIA request

WHITE

UNKNOWN

216

**Includes location codes that reflect public schools buildings and public school grounds
a.

Juvenile school-based arrests (ages 17 and under)

According to data from the Chicago Police Department, in 2010, there were 27,563 total juvenile arrests in the City
of Chicago. 5,574 of these were juvenile school-based arrests. This is down from 5,651 in 2009, representing a
decrease of about 1.4 percent. Based on CPD data, 20% of Chicago juvenile arrests take place at public school
locations.
Arrests at Public School Locations (City of Chicago, 2009 & 2010) ** - Juveniles 17 and Under
2009
2010
5,651
5,574
Source: CLEAR (queried 3/8/11) Obtained through FDLA FOIA request

% Change
-1.4%

**Includes location codes that reflect public schools buildings and public school grounds
Black youth accounted for 74 percent of school-based juvenile arrests in 2010; while Latino youth represented 22.5
percent of arrests of young people. 45 percent of CPS students are African American while 41 percent are Latino
(CPS, 2009). The numbers illustrate that black youth are disproportionately targeted for arrest in CPS. This
mirrors the general trend of disproportionate minority contact with the juvenile legal system. For example, while
they comprise only 34% of youth ages 5 to 17 in the city of Chicago, African American youth accounted for 76% of
citywide juvenile arrests (youth 17 and under) in 2010.
Arrests at Public School Locations by Race (City of Chicago, 2010) Juveniles 17 and Under
ALL
DISTRICTS

AMERICAN
ASIAN/
BLACK
BLACK
WHITE
INDIAN/
PACIFIC
HISPANIC
HISPANIC
ALASKAN
ISLANDER
NATIVE
2
28
4,113
32
1,224
Source: CLEAR (queried on 1/03/12) obtained through NIA FOIA request

WHITE

UNKNOWN

165

**Includes location codes that reflect public schools buildings and public school grounds
Young men (73%) are much more likely to be arrested at school than their female peers (27%).
FEMALE
%
MALE
%
TOTAL
1,486
27
4,080
73
5,566
Source: CLEAR (queried on 1/03/12) obtained through NIA FOIA request

%
100

23

ARRESTING JUSTICE:

A Report About Juvenile Arrests in Chicago 2009 & 2010

by First Defense Legal Aid (Caitlin Patterson) and

Project NIA (Mariame Kaba)
Designed by Caitlin Seidler & Maps by Dan Cooper
June 2011

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

INTRODUCTION: Why this report?

The police are among the most visible and visceral representatives of state power. In todays
society, their presence seems ubiquitous. They serve as the gatekeepers to the criminal legal
system and play a critical role in feeding the prison industrial complex.
Six million Americans a year have involuntary contact with the police, excluding traffic stops
(Weaver and Lerman, 2010). These encounters are often especially fraught and traumatizing
for youth. Young people of color, in particular, have spoken out eloquently about the unwanted
contacts with police in their communities.
In Chicago, thousands of juveniles are arrested every year by law enforcement. There are six
possible decision points1 in the interaction between police and young people. Police have the
power to decide the following:
1. Whether to conduct an investigatory stop involving a young person;
2. Whether to arrest a young person;
3. Whether to release a young person from police custody with a station adjustment;
4. Whether to refer a young person to Juvenile Court or to the Felony Review Division of
the Cook County States Attorneys Office for prosecution;
5. Whether to release a young person from police custody with no charges; and
6. Whether to request that a young person be held in detention until his initial court
appearance.
Each of these decision points involves the police officers use of discretion. These points of contact determine whether or not a particular young person will ultimately be referred to court and
held in detention.
While we know that thousands of young people in Chicago come into contact with law enforcement daily, there is no broad-based public outcry over this reality. Arresting Justice is an attempt
to provide relevant, timely and accessible data about juvenile arrests to community members
in Chicago in the hopes of spurring action. The sponsors of this report are First Defense Legal
Aid and Project NIA.
First Defense Legal Aid (FDLA) has been dedicated to issues of indigent defense, police accountability, and the protection of civil rights for over 15 years. FDLAs mission is two-pronged:
1

See the Appendix for a more detailed consideration of these 6 decision points regarding police interaction with
young people.

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

to ensure equal justice to people in custody at Chicago Police stations and to educate the people
of Chicago about the power of their Constitutional rights during police encounters.
Project NIAs mission is to dramatically reduce the reliance on arrest, detention, and incarceration for addressing youth crime and to instead promote the use of restorative and transformative
practices, a concept that relies on community-based alternatives. Through community engagement, education, participatory action research, and capacity-building, Project NIA facilitates
the creation of community-focused responses to violence and crime.
Both organizations believe that the first step to dramatically reducing juvenile arrests in Chicago is to mobilize our broader community to address the problem. Timely and relevant data
documenting the scope of the issue is critical to such mobilization efforts. We hope that this report serves as a clarion call to those who are interested in preventing youth from getting caught
up in the juvenile and criminal legal systems.
Acknowledgments
This report was produced and written by Mariame Kaba (Project NIA) and Caitlin Patterson
(First Defense Legal Aid). We are especially grateful to Dan Cooper from the Institute on
Public Safety & Social Justice at the Adler School for the terrific maps that are included in this
report and to Caitlin Seidler for designing and laying out this report.

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 1Total Juvenile Arrests in Chicago

Chicagos Police Department is the second largest in the United States, employing 14,973 members and serving 2.9 million residents.2 Chicago has 25 police districts that cover 77 community
areas. According to the Chicago Police Department, there were 27,563 arrests of youth 17 and
under in 2010 in the city of Chicago (some youth may be arrested more than once). There were
an estimated 432,991 youth 17 and under living in Chicago in 2009.3
A police officer has the power to decide whether to release or arrest a juvenile if the officer reasonably believes that person committed a crime. Arrests appear on a young persons criminal
record even when the youth was released without charge, given a station adjustment, or otherwise never convicted.
In the following table, the type of offense is provided for informational purposes, giving context
to the number of total arrests. Data is not available for the numbers of youth with whom the
police have contact but do not formally arrest.
Total Number of Arrests of Persons 17 and Under
(City of Chicago, 2009 & 2010)
OFFENSE TYPE

2009

2010

% Change

Felony

6,424

6,068

-5.5%

Misdemeanor

20,153

18,182

-9.8%

Other*

1,124

809

-28%

Total (based on charges)

27,701

25,059

Total (based on CPD district

numbers)

31,224

27,563

-11.7%

Source: Chicago Police Departments Research and Development Division,

Research and Analysis Section (March 2011), provided in response to a
Freedom of Information Act (FOIA) request by First Defense Legal Aid.
*Municipal Ordinance Arrests

Chicago Police Department 2009 Annual Report: A Year in ReviewAvailable at: https://portal.chicagopolice.
org/portal/page/portal/ClearPath/News/Statistical%20Reports/Annual%20Reports/09AR.pdf
3
City of Chicago Department of Family & Support Services, 2009 Estimated Population and Poverty by Community Area: Ages 6-17 (June 2011), provided in response to a request by Project NIA.
2

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

From 2003 to 2009, the total number of juvenile (16 and under) arrests in Chicago declined by
25.7%.
2003

2004

2005

2006

2007

2008

2009

27,821

28,132

28,751

26,345

24,611

23,018

20,664

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 2Demographic Information about

Juvenile Arrests in Chicago
Unfortunately, we were unable to access juvenile arrest data broken down by race and gender
for 2010 in time for the publication of this report. As such, we will rely on 2008 and 2009 Chicago Police Department (CPD) data to illustrate the demographic breakdown of juvenile arrests.
Below is information about juvenile arrests by age, gender and race. Eighty-four percent (84%)
of juveniles 16 or under arrested in 2009 were male and sixteen percent (16%) were female.
Gender

16 or under

1720 years old

TOTAL

Male

17,327 (84%)

33,139

50,466

Female

3,337 (16%)

4,711

8,048

Unknown

TOTAL

20,664

37,852

58,516

Source: Chicago Police Department 2009 Annual Report: A Year in Review

According to the Chicago Police Department4, in 2008, 69.2% of juveniles arrested were fifteen
and sixteen years old. Fourteen year olds, the next largest group, accounted for 17.6% of juvenile arrests.
In 2008, whites accounted for 3.5% of all juvenile arrests, Hispanics accounted for 18%, and
African Americans accounted for 78.1% (Chicago Police Department, 2009).

Juvenile Arrest Trends 20032008, Chicago Police Department (March 2009) Available at: https://portal.chicagopolice.org/portal/page/portal/ClearPath/News/Statistical%20Reports/Juvenile%20Reports/JuvArr2008.
pdf

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 3Juvenile Arrests by District and

Community Areas
Most of the juvenile arrests in 2010 (63%) happened in 10 out of the 25 districts. In order of
most to least, these districts are: 8, 11, 15, 4, 6, 3, 5, 7, 25, and 10 (see map).
Juvenile Arrests by DistrictPersons 17 and Under
(City of Chicago, 20092010)
District
2009
% Total 2009 2010
% Total 2010
TOTAL 0910
01
676
2.17
685
2.49
1,361
02
873
2.8
731
2.65
1,604
03
1,942
6.22
1,660
6.02
3,602
04
2,001
6.41
1,914
6.94
3,915
05
1,627
5.21
1,464
5.31
3,091
06
2,040
6.53
1,674
6.07
3,714
07
1,665
5.33
1,447
5.25
3,112
08
2,565
8.21
2,247
8.15
4,812
09
1,671
5.35
1,334
4.84
3,005
10
1,349
4.32
1,348
4.89
2,697
11
2,478
7.94
2,141
7.77
4,619
12
957
3.06
880
3.19
1,837
13
551
1.76
417
1.51
968
14
815
2.61
588
2.13
1,403
15
2,021
6.47
1,975
7.17
3,996
16
685
2.19
494
1.79
1,179
17
1,031
3.3
959
3.48
1,990
18
662
2.12
770
2.79
1,432
19
317
1.02
318
1.15
635
20
559
1.79
590
2.14
1,149
21
443
1.42
472
1.71
915
4.05
1,129
4.1
2,395
22
1,266
23
248
0.79
212
0.77
460
24
920
2.95
708
2.57
1,628
25
1,862
5.96
1,406
5.1
3,268
TOTAL
31,224
99.98%
27,563
99.98%
58,787
Source: Chicago Police Departments Research and Development Division,
Research and Analysis Section (March 2011)
6

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

We were not able to obtain youth population data for each Chicago Police District in time for
the publication of this report. We believe that youth living in certain Chicago communities are
disproportionately impacted by the police and criminal/delinquency court systems. We hope to
obtain per-district youth population data in order to create an index that describes the level of
policing per capita in various Chicago neighborhoods.
The following table is provided as a reference for people interested in exploring how many
youth are potentially affected by the policing practices in various districts. Note that several
communities are served by more than one police district, and most police districts cover more
than one community area.

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010
Chicago Youth Population (Ages 617) by Community Area2009 (Estimated)
Rank
2009

Community Area

Total
617

% Citys
%
Youth Poor

1214
(E.S.)

1517
(H.S.)

Police Districts

25 Austin

19,401

4.48

35.2

5,117

5,203

11 15 25

19 Belmont Cragin

15,762

3.64

27.3

4,195

3,334

25

30 South Lawndale

13,895

3.21

33.9

3,450

3,495

08 09 10

66 Chicago Lawn

12,124

2.8

35

3,433

3,029

08

23 Humboldt Park

11,673

2.7

46.9

3,018

3,191

11 13 14 25

2 West Ridge

11,461

2.65

23.5

2,601

2,773

20 24

15 Portage Park

11,066

2.56

21.3

2,724

2,803

16 17

22 Logan Square

10,720

2.48

36.1

2,714

2,816

14 25

71 Auburn Gresham

10,703

2.47

39.1

2,703

2,948

06 22

10

61 New City

10,371

2.4

46.2

2,364

2,493

09

11

58 Brighton Park

9,566

2.21

26.3

2,274

2,596

08 09

12

43 South Shore

9,278

2.14

46.3

2,629

2,317

03 04

13

70 Ashburn

9,077

2.1

12.6

2,246

2,298

06 08

14

63 Gage Park

9,007

2.08

25.2

2,488

2,083

08 09

15

49 Roseland

8,850

2.04

39.2

2,289

2,618

05 06 22

16

29 North Lawndale

8,830

2.04

56.4

1,881

2,747

10 11

17

67 West Englewood

8,738

2.02

49.9

2,601

2,549

07

18

24 West Town

8,703

2.01

30.3

2,436

2,092

13 14

19

16 Irving Park

8,308

1.92

13.1

1,939

1,851

17

20

14 Albany Park

7,950

1.84

26.1

1,880

1,846

17

21

68 Englewood

7,546

1.74

59.4

1,628

2,100

02 03 06 07

22

46 South Chicago

7,503

1.73

39.4

1,962

1,777

04

23

53 West Pullman

7,460

1.72

33.2

2,059

2,067

05

24

65 West Lawn

6,999

1.62

20.5

1,411

1,614

08

25

69 Greater Grand Crossing

6,853

1.58

47

1,485

2,210

03 06 07

26

17 Dunning

6,582

1.52

10.3

1,538

1,886

16 25

27

52 Eastside

6,184

1.43

26.8

1,427

1,433

04

28

31 Lower West Side

6,095

1.41

38.9

1,535

1,485

09 10 12

29

1 Rogers Park

6,008

1.39

35.6

1,526

1,669

24

30

56 Garfield Ridge

5,880

1.36

16.5

1,474

1,404

08 10

31

21 Avondale

5,607

1.29

25.4

1,326

1,348

14 17 25

32

44 Chatham

5,431

1.25

31.8

1,754

1,637

04 06

33

28 Near West Side

5,429

1.25

41

1,688

1,480

10 11 12 13

34

10 Norwood Park

5,399

1.25

6.1

1,311

1,155

16

35

20 Hermosa

5,281

1.22

24.9

1,260

1,367

25

36

73 Washington Heights

4,888

1.13

25.5

1,383

1,199

22

37

7 Lincoln Park

4,883

1.13

8.3

1167

943

38

27 East Garfield Park

4,759

1.1

52.6

1,206

1,483

11 13

39

3 Uptown

4,745

1.1

43.9

1,013

1,156

19 20 23

18 19 23

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010
Rank
2009

Community Area

Total
6-17

% Citys
%
Youth Poor

1214
(E.S.)

1517
(H.S.)

Police Districts

40

60 Bridgeport

4,546

1.05

22.2

1,003

1,389

09

41

76 OHare

4,516

1.04

16.1

1,180

1,289

16

42

26 West Garfield Park

4,348

50.4

1,159

1,103

11

43

6 Lakeview

4,137

0.96

5.1

856

730

44

72 Beverly

4,132

0.95

4.3

1,008

1,028

45

42 Woodlawn

4,119

0.95

41.4

1,218

974

19 23
22
03 21

46

75 Morgan Park

4,023

0.93

13.3

929

1,285

22

47

4 Lincoln Square

3,994

0.92

25.7

1,001

1,117

19 20

48

38 Grand Boulevard

3,776

0.87

48.2

1,278

881

02

49

11 Jefferson Park

3,709

0.86

4.8

1,048

961

16

50

8 Near North Side

3,654

0.84

38.9

920

932

18

51

77 Edgewater

3,565

0.82

22

764

957

20 24

52

51 South Deering

3,537

0.82

35.1

1,043

829

04

53

74 Mount Greenwood

3,513

0.81

2.9

767

767

22

54

64 Clearing

3,469

0.8

6.4

776

947

08

55

62 West Elsdon

3,263

0.75

14.6

749

888

08

56

12 Forest Glen

3,212

0.74

6.5

688

714

16 17

57

13 North Park

3,062

0.71

4.4

852

711

17

58

40 Washington Park

2,860

0.66

61.6

795

814

02 03

59

59 McKinley Park

2,531

0.58

21.7

514

651

09

60

39 Kenwood

2,442

0.56

43.4

605

630

21

61

18 Montclare

2,399

0.55

10

514

707

25

62

41 Hyde Park

2,355

0.54

17.5

569

518

03 21

63

5 North Center

2,190

0.51

4.8

357

480

19

64

48 Calumet Heights

2,187

0.51

26.5

532

589

04

65

57 Archer Heights

2,127

0.49

17.1

713

437

08

66

35 Douglas

2,084

0.48

34.9

452

479

02 21

67

45 Avalon Park

1,881

0.43

35.8

481

632

04

68

55 Hegewisch

1,867

0.43

20.9

331

382

04

69

34 Armour Square

1,738

0.4

18.6

286

462

01 09 21

70

54 Riverdale

1,623

0.37

72.6

446

265

05

71

50 Pullman

1,574

0.36

38.6

390

387

05

72

9 Edison Park

1,486

0.34

3.8

345

269

16

73

33 Near South Side

1,308

0.3

29.5

376

228

01 21

74

47 Burnside

1,034

0.24

46.9

364

263

04

75

36 Oakland

805

0.19

38.3

161

199

02 21

76

37 Fuller Park

579

0.13

54.4

245

169

02 09

77

32 Loop

331

neg.

8.8

15

58

01

Source: City of Chicago Department of Family & Support Services, 2009 Estimated Population
and Poverty by Community Area: Ages 6-17 (June 2011)

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 4Juvenile Arrests & Offenses by

District and by Volume
The following tables report the numbers of arrests of people age seventeen and younger in each
Chicago Police District in calendar years 2009-2010. Juveniles may be held in police custody
while they are under investigation for criminal offenses. However, some juveniles are released
without being charged: not all juvenile arrests result in court referral. Additionally, some juveniles may be arrested for multiple offenses during the same incident, so these data describe
numbers of arrests, not numbers of individuals who were arrested or ultimately prosecuted.
Juvenile Arrests & Offenses in Each Chicago Police District Rank by Volume
Rank

Total Juvenile Arrests

2009 District

No.

Felony Arrests

Misdemeanor Arrests

District

No.

District

No.

08 Chicago Lawn

2,565

11 Harrison

803

08 Chicago Lawn

1,866

11 Harrison

2,478

15 Austin

505

04 South Chicago

1,413

06 Gresham

2,040

07 Englewood

497

06 Gresham

1,386

15 Austin

2,021

08 Chicago Lawn

485

03 Grand Crossing

1,330

04 South Chicago

2,001

06 Gresham

434

25 Grand Central

1,177

03 Grand Crossing

1,942

05 Pullman

391

09 Deering

1,150

25 Grand Central

1,862

03 Grand Crossing

386

11 Harrison

1,118

09 Deering

1,671

25 Grand Central

355

05 Pullman

1,085

07 Englewood

1,665

10 Ogden

354

15 Austin

1,022

10

05 Pullman

1,627

04 South Chicago

342

07 Englewood

876

11

10 Ogden

1,349

09 Deering

305

22 Morgan Park

871

12

22 Morgan Park

1,266

22 Morgan Park

285

17 Albany Park

787

13

17 Albany Park

1,031

02 Wentworth

230

10 Ogden

741

14

12 Monroe

957

24 Rogers Park

151

12 Monroe

688

15

24 Rogers Park

920

12 Monroe

136

24 Rogers Park

618

16

02 Wentworth

873

14 Shakespeare

136

16 Jefferson Park

543

17

14 Shakespeare

815

18 Near North

131

02 Wentworth

531

18

16 Jefferson Park

685

17 Albany Park

105

01 Central

488

19

01 Central

676

13 Wood

94

14 Shakespeare

480

20

18 Near North

662

21 Prairie

89

18 Near North

461

21

20 Foster

559

01 Central

70

20 Foster

448

22

13 Wood

551

20 Foster

70

13 Wood

351

23

21 Prairie

443

16 Jefferson Park

61

21 Prairie

321

24

19 Belmont

317

19 Belmont

53

19 Belmont

229

25

23 Town Hall

248

23 Town Hall

26

23 Town Hall

173

Source: Chicago Police Departments Research and Development Division, Research and
Analysis Section (March 2011). This table does not include arrests for City of Chicago ordinance
violations, which are factored into the total number of arrests per district reported by the CPD.

10

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Rank
2010

Total Juvenile Arrests

District

No.

Felony Arrests

Misdemeanor Arrests

District

No.

District

No.

08 Chicago Lawn

2,247

11 Harrison

808

08 Chicago Lawn

1,636

11 Harrison

2,141

15 Austin

494

04 South Chicago

1,367

15 Austin

1,975

08 Chicago Lawn

418

06 Gresham

1,177

04 South Chicago

1,914

07 Englewood

399

03 Grand Crossing

1,140

06 Gresham

1,674

10 Ogden

389

15 Austin

1,046

03 Grand Crossing

1,660

04 South Chicago

380

05 Pullman

975

05 Pullman

1,464

05 Pullman

351

11 Harrison

940

07 Englewood

1,447

06 Gresham

335

09 Deering

931

25 Grand Central

1,406

25 Grand Central

326

25 Grand Central

892

10

10 Ogden

1,348

03 Grand Crossing

316

07 Englewood

862

11

09 Deering

1,334

09 Deering

250

22 Morgan Park

811

12

22 Morgan Park

1,129

22 Morgan Park

215

10 Ogden

754

13

17 Albany Park

959

18 Near North

210

17 Albany Park

733

14

12 Monroe

880

02 Wentworth

184

12 Monroe

673

15

18 Near North

770

24 Rogers Park

138

01 Central

554

16

02 Wentworth

731

17 Albany Park

125

18 Near North

509

17

24 Rogers Park

708

12 Monroe

120

24 Rogers Park

497

18

01 Central

685

14 Shakespeare

115

20 Foster

464

19

20 Foster

590

21 Prairie

101

02 Wentworth

445

20

14 Shakespeare

588

13 Wood

78

16 Jefferson Park

393

21

16 Jefferson Park

494

01 Central

76

14 Shakespeare

373

22

21 Prairie

472

20 Foster

74

21 Prairie

341

23

13 Wood

417

19 Belmont

66

13 Wood

295

24

19 Belmont

318

16 Jefferson Park

60

19 Belmont

236

25

23 Town Hall

212

23 Town Hall

40

23 Town Hall

138

Source: Chicago Police Departments Research and Development Division, Research and
Analysis Section (March 2011). This table does not include arrests for City of Chicago ordinance
violations, which are factored into the total number of arrests per district reported by the CPD.

11

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Highest Total Arrest VolumeMost Frequently Reported Offenses

Most juvenile arrests in Chicago are for misdemeanor offenses, generally, or felony drug possession.
Rank
2009

Police District

08 Chicago Lawn

Most Frequently Reported Offenses

Type of Offense

Number

1. Disorderly Conduct
2. Drug Abuse Violations
3. Larceny Theft

1. Misdemeanor
2. Misdemeanor
3. Misdemeanor

316
300
300

11 Harrison

1. Drug Abuse Violations

2. Drug Abuse Violations
3. Larceny Theft

1. Felony
2. Misdemeanor
3. Misdemeanor

546
231
222

06 Gresham

1. Miscellaneous Non-Index Offenses

2. Drug Abuse Violations
3. Simple Battery

1. Misdemeanor
2. Misdemeanor
3. Misdemeanor

309
307
208

15 Austin

1. Drug Abuse Violations

2. Drug Abuse Violations
3. Gambling

1. Felony
2. Misdemeanor
3. Misdemeanor

333
284
217

04 South Chicago 1. Drug Abuse Violations

2. Simple Battery
3. Miscellaneous Non-Index Offenses

1. Misdemeanor
2. Misdemeanor
3. Misdemeanor

307
287
242

Source: CPD Research and Development Division, Research and Analysis Section (March 11,
2011).

Rank
2010

Police District

Most Frequently Reported Offenses

Type of Offense

Number

08 Chicago Lawn 1. Disorderly Conduct

2. Drug Abuse Violations
3. Simple Battery

1. Misdemeanor
2. Misdemeanor
3. Misdemeanor

366
285
229

11 Harrison

1. Drug Abuse Violations

2. Drug Abuse Violations
3. Simple Battery

1. Felony
2. Misdemeanor
3. Misdemeanor

571
217
179

15 Austin

1. Drug Abuse Violations

2. Drug Abuse Violations
3. Gambling

1. Misdemeanor
2. Felony
3. Misdemeanor

332
316
178

04 South Chicago 1. Disorderly Conduct

2. Drug Abuse Violations
3. Simple Battery

1. Misdemeanor
2. Misdemeanor
3. Misdemeanor

287
284
250

06 Gresham

1. Miscellaneous Non-Index Offenses 1. Misdemeanor

2. Drug Abuse Violations
2. Misdemeanor
3. Simple Battery
3. Misdemeanor

267
209
195

Source: CPD Research and Development Division, Research and Analysis Section (March 11,
2011).

12

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Highest Felony Arrest VolumeMost Frequently Reported Offenses

The following tables are adapted from the Chicago Police Departments report of its total numbers of juvenile felony arrests per district in 2009 and 2010.
As reported by CPD, the offenses described below lack some definition. For instance, the CPD
data does not distinguish among the various possible types of drug charges. Most drug abuse
violation (*) arrests reported were probably for possession of a controlled substance, such as
heroin or cocaine, which results in a felony charge regardless of the amount of the drug the arrestee allegedly possessed and/or whether he allegedly intended to sell it, use it privately, or do
nothing with it.5

Illinois Controlled Substances Act, 720 ILCS 570/401 (2010)

13

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Similarly, felony aggravated battery (**) describes a range of behavior. Simple battery, a misdemeanor, is defined as physical contact of an insulting or harmful nature that one person intentionally causes to another.6 Some battery charges are aggravated and upgraded to felonies
based on the legal status of the alleged victim. Illinois law gives special protection to police
officers, teachers, and elderly people, among others, so a youth alleged to have any degree of
physical contact with those types of people may be charged with a felony, even if the victim was
not actually injured.7 Battery may also be charged as a felony only because it occurred on public
property, even if no one was injured.8 On the other hand, battery may be charged as a felony
because the alleged offender used a weapon or caused serious injury to the victim.9 The arrest
data reported by CPD do not describe whether the alleged offenses were violent in nature or
charged as felonies due to the location of the conduct or status of the victim.
Rank
2009

Police District

Community Areas

Most Frequently Reported

Felony Offenses

Number

11 Harrison

Humboldt Park, Austin,

East & West Garfield Park,
N. Lawndale

1. Drug Abuse Violations*

2. Robbery
3. Aggravated Battery**

546
84
53

15 Austin

Austin

1. Drug Abuse Violations*

2. Robbery
3. Aggravated Battery**

333
40
33

07 Englewood

Englewood, Greater
Grand Crossing, W.
Englewood

1. Burglary
2. Robbery
3. Motor Vehicle Theft

119
82
71

08 Chicago Lawn Garfield Ridge, Gage

Park, W. Elsdon, Archer
Hts., W. Lawn, Chi. Lawn,
Ashburn

1. Robbery
2. Burglary
3. Aggravated Battery**

123
102
55

06 Gresham

Auburn Gresham, Greater 1. Robbery

Grand Crossing, Chatham 2. Burglary
3. Drug Abuse Violations*

118
93
53

Source: CPD Research and Development Division, Research and Analysis Section (March 11,
2011); CPD Bureau of Administrative Services, Information Services Division GIS (May 2008).

Illinois Criminal Code of 1961, 720 ILCS 5/12-3(a) (2011)

Illinois Criminal Code of 1961, 720 ILCS 5/12-3.05(d) (2011)
8
Illinois Criminal Code of 1961, 720 ILCS 5/12-3.05(c) (2011)
9
Illinois Criminal Code of 1961, 720 ILCS 5/12-3.05(a) (2011)
6
7

14

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Rank
2010

Police District

Community Areas

Most Frequently Reported

Felony Offenses

Number

11 Harrison

Humboldt Park, Austin,

East & West Garfield Park,
N. Lawndale

1. Drug Abuse Violations*

2. Motor Vehicle Theft
3. Robbery

571
63
58

15 Austin

Austin

1. Drug Abuse Violations*

2. Robbery
3. Aggravated Battery**

316
53
30

08 Chicago Lawn

Garfield Ridge, Gage Park,

W. Elsdon, Archer Hts., W.
Lawn, Chi. Lawn, Ashburn

1. Burglary
2. Robbery
3. Aggravated Battery**

97
84
54

07 Englewood

Englewood, Greater Grand 1. Burglary

Crossing, W. Englewood
2. Robbery
3. Drug Abuse Violations*

96
70
39

10 Ogden

North & South Lawndale,

Lower West Side

165
73
39

1. Drug Abuse Violations*

2. Robbery
3. Motor Vehicle Theft

Source: CPD Research and Development Division, Research and Analysis Section (March 11,
2011); CPD Bureau of Administrative Services, Information Services Division GIS (May 2008).

15

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 5Juvenile Arrests on School Property

There has been much discussion about the school to prison pipeline10 lately. One of the most
important developments over the past few years has been the over-reliance on arrests as a way
to address perceived school discipline problems.
School officials may usually decide whether or not to involve the police in a school incident. The
Chicago Board of Education sets policies indicating when it is mandatory for school officials to
notify police of alleged student misbehavior, when school officials may use their discretion in
calling police, and when the police need not be involved.11 For example, when two people fight
at school but no one is injured, the Student Code of Conduct does not require that police be notified. School officials may use their discretion in notifying police of a fight involving more than
two people or resulting in injuries. School officials may also refrain from calling the police when
a student makes any inappropriate minor physical contact with school personnel. Project NIA
and FDLA encourage schools to handle conflict among students, teachers, and administrators
without resorting to a police response as often as possible.
The numbers reported below underscore the reality that many young people in Chicago are arrested directly from their schools.
Arrests at Public School LocationsPersons 17 and Under
(City of Chicago, 20092010)
2009
2010
% Change
5,651
5,574
-1.3%
Source: CPD Research and Development Division, Research and Analysis
Section (March 11, 2011). Includes location codes that reflect public schools
buildings and public school grounds.

The School to Prison Pipeline describes the reality that many young people are being pushed out of school and
into the juvenile and adult legal systems because of harsh discipline policies, high stakes testing, police involvement in schools, and social oppression.
11
Chicago Public Schools Student Code of Conduct, pages 1528 (effective September 16, 2010) Available at:
http://www.cps.edu/Pages/StudentResourcesStudentCodeofConduct.aspx
10

16

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Arrests at Public School Locations by DistrictPersons 17 and Under

(City of Chicago, 2009 & 2010)
District
01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TOTAL

2009
7
155
227
530
352
375
244
482
213
100
320
369
141
55
182
254
275
71
95
233
114
447
28
93
289
5,651

% Total 2009
0.12
2.74
4.02
9.38
6.23
6.64
4.32
8.53
3.77
1.77
5.66
6.53
2.5
0.97
3.22
4.49
4.87
1.26
1.68
4.12
2.02
7.91
0.5
1.65
5.11
100.01

17

2010
5
178
238
543
345
379
225
532
267
133
255
308
120
73
215
160
287
71
80
236
161
370
11
71
311
5,574

% Total 2010
0.09
3.19
4.27
9.74
6.19
6.8
4.04
9.54
4.79
2.39
4.57
5.53
2.15
1.31
3.86
2.87
5.15
1.27
1.44
4.23
2.89
6.64
0.2
1.27
5.58
100

TOTAL
12
333
465
1,073
697
754
469
1,014
480
233
575
677
261
128
397
414
562
142
175
469
275
817
39
164
600
11,225

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

18

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 6Formal/Informal Station Adjustments

As an alternative to referring the case to Juvenile Court, a youth officer may release a young
person from custody with a station adjustment. There are two types of station adjustments: informal and formal. A youth officer may give an informal station adjustment if he decides there
is probable cause to believe the juvenile committed an offense. A formal station adjustment is
different in that a juvenile must also admit involvement in the alleged offense. The juveniles
admission can later be used as evidence against him if he violates the terms of the formal adjustment and his case is referred to court.
Although they are not convictions, station adjustments usually appear in a juveniles arrest
history. All formal station adjustments must be recorded with the Illinois State Police. Informal station adjustments for felonies must also be recorded with the Illinois State Police, and
informal station adjustments for misdemeanors may be recorded. Station adjustments can be
expunged from a juveniles record.
There were 1,733 formal and 7,040 informal station adjustments reported by CPD in 2010.

19

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Station Adjustments (City of Chicago, 2009 & 2010)

2009

2010

Formal
Informal
Formal
Informal
DISTRICT Adjustments Adjustments Adjustments Adjustments
TOTAL
01
33
188
42
356
619
02
3
146
17
146
312
03
49
333
26
222
630
04
43
396
45
392
876
05
29
376
36
308
749
06
21
384
38
300
743
07
5
238
28
316
587
08
44
607
85
691
1,427
09
33
336
45
402
816
10
17
236
26
357
636
11
113
467
133
476
1,189
12
121
209
205
281
816
13
46
119
56
159
380
14
62
123
65
153
403
15
127
361
185
611
1,284
16
122
127
101
156
506
17
136
197
187
304
824
18
30
137
62
230
459
19
18
76
18
95
207
20
40
120
31
157
348
97
5
155
260
21
3
22
33
353
21
197
604
23
13
51
9
60
133
24
19
97
21
171
308
25
221
316
246
345
1,128
TOTAL
1,381
6,090
1,733
7,040
16,244
Source: Youth Investigation Section, Detective Division, provided to CPD
Research & Development on 8 March 2011.

20

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 7Implications of the Data

The data presented in this report show that certain community areas in Chicago are disproportionately impacted by juvenile arrests. The maps included in the report visually illustrate that
juveniles on the South and West sides of Chicago are more likely to find themselves in police
custody.
We know that contact with law enforcement has a negative impact on young people. Young
people who are arrested may at least temporarily miss school, work, or youth development
programming while they are held in police custody. Their school and positive extracurricular
schedules are further disrupted on each day they are required to appear in court or held in
detention, as are their parents work and child care responsibilities. Youth in trouble with the
law consistently struggle in school, have higher levels of mental and emotional trauma, and are
likely to recidivate.
Community members must find new and creative ways to reach young people before they
are arrested or come to the attention of law enforcement. We encourage our readers to take
personal responsibility for supporting young people who may be in trouble. Please share your
ideas with us so that we may pass them along. Visit the Arresting Justice report blog (http://
arrestjustice.wordpress.com) where youth and adults will be able to participate in an anonymous survey about encounters with the police. In addition, Caitlin Patterson of FDLA can
be reached at fdlegalaid@gmail.com and Mariame Kaba of Project NIA can be reached at
projectnia@hotmail.com for questions about the report.
The event of an arrest is truly life-altering for anyone taken into police custody and their families. We must work to prevent youth involvement with police and criminal/delinquency court
systems. Despite sensational media reports, however, youth are the minority of people who get
arrested. The Chicago Police Department made 181,669 arrests in 2009 approximately 17%
were of people seventeen and younger (31,224).12 This statistic should shatter the prevalent
characterization of youth as flash mobs or as automatically suspect. In forming opinions
about Chicagos young people, we should never forget that adults are the ones primarily implicated in the criminal legal system.

12

Chicago Police Department 2009 Annual Report; CPD Research and Development Division, Research and
Analysis Section (March 11, 2011).

21

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

APPENDIX
SECTION 1OPTIONS POLICE HAVE IN THEIR INTERACTIONS WITH YOUTH
There are many ways that the police can interact with youth in Chicago.
1. Decision to Conduct Investigatory Stop
In public places, where most arrests happen, police officers may stop any person whom the
officers reasonably suspect might be committing a crime for temporary investigation. Terry v.
Ohio, 392 U.S. 1 (1968). The officers must base their suspicion not just on a hunch, but on specific facts they can explain to a judge. They may take into account such factors as what they observed the person doing; whether the neighborhood is a high-crime area, where there is a lot
of drug-dealing or violence; and whether the person ran away or otherwise attempted to evade
the police. Illinois v. Wardlow, 528 U.S. 119 (2000). For their safety during the stop, officers
may pat down the outer clothing of a detainee for weapons. If the officers feel what immediately
appears to be a weapon or drugs, they may remove that object from the detainees clothing and
arrest the detainee if the object was, in fact, illegal to possess.
During a stop, police may ask the detainee to identify himself, and he must truthfully provide
his name, birthdate, address, and phone number. Hiibel v. Sixth Judicial District Court, 542
U.S. 218 (2004). A person may be arrested simply for providing false identification to police
officers. Obstructing identification, 720 ILCS 31-4.5 (2010). During a stop, the detainee does not
have to answer any other police questions, such as what he was doing, where he was going, or
what he knows about any other person or incident. The detainee can use his right to remain
silent under the Fifth Amendment of the United States Constitution and Article One, Section
Ten, of the Illinois Constitution.
Officers may ask any person to voluntarily stop and talk with them during a consensual encounter. If the person is not sure whether he must stop, he may ask the officers if he is free to leave.
A person who is free to leave may do so. In Chicago, police officers frequently fill out and save
a contact card with information provided by the person. If a person is not free to leave police
custody, he has been arrested. United States v. Mendenhall, 446 U.S. 544 (1980).
2. Discretion to Arrest
Police officers may arrest a juvenile when they have probable cause a reason, based on specific
facts known to the officers, to believe that the juvenile committed a crime or violated a court
order of supervision or probation. Arrest and taking into custody of a minor, 705 ICLS 405/5-401(1)
(a), (c) (1999). Note that the officers decision to arrest is discretionary. They have the power
to decide whether or not to arrest a juvenile whom they believe committed a crime.
In public places, including schools, police do not need a warrant to arrest a juvenile on the basis
of probable cause. If, however, officers wish to remove a juvenile from his home, they should
get an arrest warrant. All people have the right against unreasonable searches of their homes
22

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

and unreasonable seizures of their persons and property under the Fourth Amendment of the
United States Constitution and Article One, Section Six, of the Illinois Constitution. A child or
his family may refuse to allow officers into the house to arrest a person when the officers do not
have a warrant. Payton v. New York, 445 U.S. 573 (1980). A juvenile is not required to voluntarily leave his home and accompany officers to the police station for questioning.
Illinois law never gives people the right to resist arrest. Resisting or obstructing a peace officer, 720
ILCS 5/31-1(a) (2009). Therefore, a juvenile who believes that his arrest was illegal should not
resist or otherwise fight back against the officers. If he is charged with a crime, the fact of the
unlawful arrest may be used to fight his case in court.
Any police officer who arrests a juvenile for a misdemeanor offense may confirm the juveniles
identity and release him to his guardian. Duty of officer; admissions by minor, 705 ILCS 405/4405(2) (1999). Otherwise, a youth officer must promptly be assigned to the case. The youth
officer may release the juvenile with a station adjustment, refer the case to Juvenile Court and
release the juvenile to his guardian, or keep the juvenile in custody under specific conditions
and time limitations. 705 ILCS 405/5-405(3).
3. Release with Station Adjustment
Instead of referring a juvenile arrestee to court, a youth officer has the option to release the
juvenile from police custody with a station adjustment. Station adjustments are available for
any type of offense city ordinance violations, misdemeanors, or felonies. In deciding whether
to offer a station adjustment, the youth officer must consider the juveniles age and history of
delinquency, the seriousness of the alleged offense, the juveniles alleged culpability (level of
involvement), whether the alleged offense was aggressive or premeditated, and whether the
juvenile used or possessed a deadly weapon. Station adjustments, 705 ILCS 405/5-301 (1999).
A station adjustment is not a finding of delinquency or a criminal conviction. 705 ILCS 405/5301(1)(g), (2)(e).
A youth officer may impose conditions on the juvenile as part of a station adjustment. For example, the youth officer may set a curfew, order the juvenile to refrain from contacting certain
people or entering certain places, and require the juvenile to attend school, perform community
service, participate in community mediation or peer jury, or pay restitution. 705 ILCS 405/5301(1)(e), (2)(d)(iii). If the juvenile violates the conditions of a station adjustment, the youth
officer may extend the adjustment, terminate it unsatisfactorily, or refer the case to the States
Attorney or Juvenile Court. 705 ILCS 405/5-301(1)(f), (2)(i).
There are two types of station adjustments: informal and formal. A youth officer may give an informal station adjustment if he decides there is probable cause to believe the juvenile committed
an offense. 705 ILCS 405/5-301(1)(a). A formal station adjustment is different in that a juvenile
must admit involvement in the alleged offense. 705 ILCS 405/5-301(2)(a). The juveniles admission can later be used as evidence against him if he violates the terms of the formal adjustment
and his case is referred to court. 705 ILCS 405/5-301(2)(c)(iv).
23

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

Although they are not convictions, station adjustments usually appear in a juveniles arrest history. All formal station adjustments must be recorded with the Illinois State Police. Informal
station adjustments for felonies must also be recorded with the Illinois State Police, and informal station adjustments for misdemeanors may be recorded. 705 ILCS 405/5-301(1)(g), (2)(e).
Station adjustments can be expunged from a juveniles record. 705 ILCS 405/5-915.
The number of station adjustments a juvenile may receive is limited by Illinois law. A juvenile
cannot receive more than five informal and four formal station adjustments while he is a minor,
with additional limitations by type of offense. 705 ILCS 405/5-301(1)(b)-(d), (2)(j)-(l).
4. Investigation; Referral for Prosecution
A youth officer may hold a juvenile arrestee in custody when he reasonably believes there is
urgent and immediate necessity to do so, given the nature of the allegations and factors such
as the juveniles family, educational, and social circumstances. Duty of officer, 705 ILCS 405/5405(3)(c). There are strict limitations on the amount of time that a juvenile arrestee may be
held in police custody for investigation. A child younger than twelve years old cannot be held
for more than six hours. Non-secure custody or detention, 705 ILCS 405/5-410(2)(a) (2004). A
juvenile who is twelve years or older may be held no longer than twelve hours for a non-violent crime and no longer than twenty-four hours for a violent crime. 705 ILCS 405/5-410(2)
(c). All arrestees under seventeen years old must be separated from adult detainees by sight
and sound. 705 ILCS 450/5-410(2)(c)(ii), (v); Excluded jurisdiction, 705 ILCS 450/5-130(7)
(2006).
Whether a child will be charged as a juvenile or as an adult depends on the childs age and the
nature of the offense. When a child is charged as a juvenile, the youth officer may refer the
childs case to Juvenile Court and either release the child to his guardian or seek to hold the
child in detention until his initial court appearance (see below). 705 ILCS 405/5-405(3). Police
may not disclose the identity of a child charged as a juvenile to the general public. Processing of
juveniles and minors under Department control, General Order 98-11, Section VI-A.
All seventeen year olds charged with felonies will be prosecuted in adult Criminal Court, while
misdemeanor cases are referred to Juvenile Court until the arrestee is eighteen. Exclusive jurisdiction, 705 ILCS 405/5-120 (2010). For certain offenses, a child who is fifteen years or older
will automatically be processed and charged as an adult; police cannot refer the case to Juvenile
Court. Those offenses include first degree murder, aggravated criminal sexual assault (rape),
aggravated battery with a firearm (shooting), armed robbery with a firearm, aggravated vehicular hijacking (carjacking) with a firearm, and unlawful use of a weapon on school grounds. 705
ILCS 450/5-130(1)(a), (3)(a). Sometimes, a child as young as thirteen can be charged as an
adult. In automatic transfer cases, members of the Chicago Police Department investigate the
offenses alleged, and the Felony Review Division of the Cook County States Attorneys Office
determines whether there is sufficient evidence to prosecute the child.

24

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

The protections that Illinois law provides for juvenile arrestees do not apply to children charged
as adults, except for the requirement that children be held separately from adults. 705 ILCS
450/5-130(7). For example, police may disclose the identity of a sixteen year old accused of
shooting another person.
Every person, regardless of his age, has the rights to remain silent and to defense counsel when
he is arrested. United States Const., Amend. 5; Illinois Const., Art. 1, Sec. 10. Other than providing identity information, juveniles can refuse to answer police questions. They can also refuse to participate in an interrogation without an attorney present. Juveniles may exercise their
rights by clearly saying, I will not talk. I need my lawyer, and then remaining silent.
When police officers arrest a juvenile with or without a warrant, they must immediately attempt
to notify the juveniles guardian that he has been arrested and where he is being held. Duty of
officer; admissions by minor, 705 ILCS 405/5-405(1), (2) (1999). However, a juvenile may be held
in custody and investigated whether or not officers successfully reach the guardian and whether
or not the guardian is present during questioning or other procedures. A parent or guardian
may not be allowed to see a juvenile held in police custody; such visitors may be admitted or
denied access to the juvenile arrestee at the district supervisors discretion.
According to Chicago Police Department policy, a juvenile should not be questioned, and a
formal statement should not be taken, unless a guardian or youth officer is present. Processing of
juveniles and minors under Department control, General Order 98-11, Section IV-E (revised 2000),
Processing juvenile arrestees charged as adults, General Order 98-11-03B, Section IV-A-2 (2004).
The youth officer is not an advocate for the juveniles defense during questioning or at any
time. Any statements the juvenile makes to the youth officer may be used against him in court.
Furthermore, conversations between a juvenile and his guardian are not privileged. Police may
listen to the conversations, and the States Attorney could subpoena the guardian to appear in
court and testify truthfully to the juveniles statements.
Police cannot deny access to a defense attorney. A juvenile (or person of any age) must be allowed to consult with an attorney who appears at the station on the arrestees behalf. Right to
consult with attorney, 725 ILCS 5/103-4 (1963); Arrestees communications, Chicago Police Department General Order 02-03-08, Section III-B-1 (2002). Regardless of the charges, any friend or
family member may send an attorney to the police station to represent a juvenile. It is not necessary that the juvenile himself call for the attorney when he might not have access to a telephone.
An attorney from First Defense Legal Aid is available twenty-four hours a day, seven days a
week, for juveniles or adults who are under arrest at Chicago Police stations. Friends and family
should call the FDLA Hotline immediately on behalf of someone arrested by Chicago Police:
1-800-LAW-REP-4 / 1-800-529-7374.
Although police cannot prevent an attorney from seeing his client once at the station, officers
and detectives are not required to call an attorney for the juvenile. There are two very limited
exceptions: Police cannot interrogate a juvenile who is twelve years old or younger without a
25

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

defense attorney present when the charges being investigated are criminal sexual assault (rape)
or homicide (murder). Representation by counsel, 705 ILCS 405/5-170 (2005). As in adult cases,
only homicide interrogations must be electronically recorded. When statements by accused may be
used, 725 ILCS 5/103-2.1 (2005).
5. Release From Station Without Charges
Whenever police officers, detectives, or agents of the States Attorneys Office determine that
there is not enough evidence to prosecute a juvenile arrestee, they should release him with no
charges. The arrest will still appear on the juveniles record, and he should apply to have it expunged. Expungement of juvenile law enforcement and court records, 705 ILCS 405/5-915.
6. Request Detention of Juvenile
When a youth officer refers a case to Juvenile Court, he may release the juvenile to his guardian
with a promise to appear in court on a specified date. If the youth officer believes that there is
urgent and immediate necessity to keep the juvenile in custody until the initial court appearance, he may request that the juvenile be held in secure custody at the Juvenile Temporary
Detention Center or in non-secure custody at a youth shelter. 705 ILCS 405/5-401(b).
In Cook County, the Juvenile Probation Department screens each request for detention using a standardized points system called the Risk Assessment Instrument (RAI). Points are
assigned according to the seriousness of the present offense, whether the juvenile has pending cases or past findings of delinquency, and whether the juvenile is currently subject to a
detention alternative restriction such as home confinement. If the factors add up to fifteen or
more points, Probation authorizes secure detention of a child who is thirteen years or older.
In cases of ten to fourteen points, or when the child is younger than thirteen, Probation explores non-secure detention options. If the factors add up to fewer than ten points, the juvenile should be released.
All juveniles charged as adults in automatic transfer cases are held in detention. They appear in
Criminal Court for probable cause and bond hearings in accordance with provisions of the Illinois Code of Criminal Procedure. Children referred to Juvenile Court for violent felonies and
weapons cases, such as murder, shooting, rape, home invasion, and armed robbery will also be
held in detention until their initial court date (automatic fifteen points on RAI).
If the child is kept in custody when his case is referred to Juvenile Court, the judge must
hold a detention hearing within forty hours. Setting of detention or shelter care hearing; release, 705
ILCS 405/5-415(1) (2009). The judge then determines whether the child should be released
with or without restrictions while his case is pending. The judge may order continued detention if he makes certain findings: (a) there is probable cause that the juvenile committed an
offense, and (b) there is urgent and immediate necessity to detain the child for his own
protection or the protection of another person or property, or (c) the child is a flight risk. 705
ILCS 405/5-415(4).
26

27

Released With Court Date

Held in Detention
Probable Cause &
Bond Hearing in
Criminal Court

States Attorney Charges

Juvenile as Adult
(automatic transfer cases)

Held in Detention or Shelter

Probation Risk Assessment

40-hour Detention Hearing

Misdemeanors
(17 & younger)

Felonies
(16 & younger)

Formal

May include conditions

Must admit involvement

Release With Station Adjustment

Release Without Charges

No Referral for Prosecution

Release No Arrest

NO COURT REFERRAL

Informal

May include conditions

No admission of guilt

Police Custody &

Investigation
(12-24 hour limit)

Initial Police Contact

Investigatory Stop

Arrest

Consensual Encounter

POLICE ACTION

Youth Officer Refers to Juvenile Court

Referral for Prosecution

REFERRAL TO COURT

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 2JUVENILES RIGHTS WITH LAW ENFORCEMENT

Here are the five things that we need to remember to minimize the impact of a police encounter.
1. Identity Information. If we are stopped or arrested by police, we must give them our
identity information: name, birthdate, address, and phone number. Other than that, we do
not have to answer any other police questions.
2. We have the right to remain silent. That means we do not have to give police any
information about the case, and we do not have to answer any police questions without
a lawyer there to defend us. To use our right to remain silent, we must clearly say I will
not talk. I want my lawyer. Then, we shouldnt say anything else and we shouldnt ask
any questions about the case. When we use our right to remain silent, the police cannot
interrogate us.
3. We have the right to a lawyer. A defense lawyer can help us protect our right to remain
silent. You can get a free lawyer for someone who is being held at a Chicago Police
station twenty-four hours a day, seven days a week, by calling First Defense Legal Aid:
1-800-LAW-REP-4 / 1-800-529-7374. Anyone can call the Hotline on behalf of someone
arrested by Chicago Police.
4. Never run away from police. Running makes us look more suspicious, and police might
arrest us for resisting arrest even if we didnt do anything else wrong. Also, police might
use more force when they chase us and arrest us we could get seriously hurt.
5. Never fight back against police. We never have the right to resist arrest, even when
we believe its wrong. We can fight the case in court, not on the street. If we fight back
against police, they might arrest us for aggravated battery, a felony case, even if we didnt
do anything else wrong. Also, police will use more force against us, and we could get
seriously hurt.

28

ARRESTING JUSTICE: A Report About Juvenile Arrests in Chicago 2009 & 2010

SECTION 3MAP OF DISTRICTS AND COMMUNITY AREAS

29

ARRESTING JUSTICE (Second Edition): JUVENILE ARRESTS IN CHICAGO,

2011 and 2012

By Mariame Kaba (Project NIA)

Image by Mauricio Pineda
August 2013

In June 2011, we published Arresting Justice: A Report about Juvenile Arrests in Chicago, 2009 &
2010 (http://arrestjustice.wordpress.com/) along with our allies at First Defense Legal Aid. We
are pleased today to release a second edition of Arresting Justice that relies on data requested
from the Chicago Police Department (CPD) for calendar years 2011 and 2012.
As you read through the report, please be aware of a few important things. Arrest statistics
report the number of arrests that the police made in a given year. They do not describe the
number of individuals arrested or the number of crimes committed. As Puzzanchera and
Adams point out:
The number of arrests is not the same as the number of people arrested because an unknown
number of individuals are arrested more than once during the year. Nor do arrest statistics
represent the number of crimes that arrested individuals commit because a series of crimes that
one person commits may culminate in a single arrest, and a single crime may result in the arrest
of more than one person. This latter situation, where many arrests result from one crime, is
relatively common in juvenile law-violating behavior because juveniles are more likely than
adults to commit crimes in groups.1
This second edition of Arresting Justice was written and produced by Mariame Kaba. The report
is part of the Chicago Youth Justice Data Project (http://chicagoyouthjustice.com/), an initiative
of Project NIA (http://project-nia.org/).
About The Author
Mariame Kaba is the founding director of Project NIA. She is an educator, organizer, and writer
who lives in Chicago. Her work focuses on ending violence, dismantling the prison industrial
complex and supporting youth leadership development. Mariame was a program officer for
education and youth development at the Steans Family Foundation from 2004-2009. She has
also been a consultant helping organizations to develop their evaluation capacity. Mariame is a
published author, curriculum developer, and has served on numerous nonprofit boards.

Puzzanchera, Charles and Adams, Benjamin (2011, Dec). Juvenile Arrests 2009. U.S. Department of Justice, Office of Juvenile
Justice and Delinquency Prevention. http://www.ojjdp.gov/pubs/236477.pdf

QUICK SUMMARY
Number of Total Juvenile Arrests in 2011: 25,111
Number of Total Juvenile Arrests in 2012: 22,877
The number of juvenile arrests decreased by 9 percent from 2011 to 2012.
Blacks accounted for 77% of juvenile arrests in 2011 & 79% in 2012
Latinos accounted for 18% of juvenile arrests in 2011 & 17% in 2012
Boys/Young men were 84% of juvenile arrests in 2011 & 2012
Most juvenile arrests were for misdemeanor offenses in 2011 & 2012

Section 1. Total Juvenile Arrests 2011 & 2012

In the following table, the type of offense is provided for informational purposes, giving context to the
number of total arrests. Data is not available for the numbers of youth with whom the police have
contact but do not formally arrests. According to CPD, there were 22,877 juvenile arrests in 2012; down
from 25,111 in 2011 (a decrease of about 9%).
Total Number of Arrests of Persons, 17 and Under (City of Chicago, 2011 & 2012)
OFFENSE TYPE
Felony
Misdemeanor
Other*
Total (based on offenses)
Total (based on CPD district numbers)

2011
5,425
16,423
1,636
23,484
25,111

2012
5,189
14,476
1,595
21,260
22,877

% Change
-4.35%
-11.85%
-2.5%
-9.5%
-8.9%

Source: CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)
* MCC Violations (Municipal Ordinance Arrests)
Juvenile Arrests by District2 Persons 17 and Under (City of Chicago, 2011 & 2012)
Most of the juvenile arrests in 2012 (64.5%) happened in 10 out of the 25 districts. In order of most to
least, these districts are 8, 11, 7, 15, 4, 3, 6, 5, 9, and 10.
District

2011

% Total 2011

2012

% Total 2012

01
02
03
04
05
06
07
08
09
10
11

636
841
1,363
1,768
1,267
1,479
1,407
2,025
1,418
1,152
1,767

2.53
3.34
5.43
7.04
5.04
5.89
5.6
8.06
5.65
4.59
7.04

599
973
1,346
1,475
1,295
1,302
1,499
2,051
1,259
1,244
1,812

2.62
4.25
5.88
6.45
5.66
5.69
6.55
8.96
5.5
5.44
7.92

TOTAL
(2011 & 2012)
1,235
1,814
2,709
3,243
2,562
2,781
2,906
4,076
2,677
2,396
3,579

12
13
14
15
16
17
18
19

793
433
491
1,661
385
867
1,260
280

3.16
1.72
1.95
6.61
1.53
3.45
5.02
1.11

635
410
559
1,478
365
625
890
401

2.77
1.79
2.44
6.46
1.59
2.73
3.89
1.75

1,428
843
1,050
3,139
750
1,492
2,150
681

Districts 13, 21, and 23 merged with other districts at various points in 2012.

20
457
1.82
421
1.84
878
21
499
1.99
60
0.26
559
22
857
3.41
775
3.39
1,632
23
168
0.67
24
0.1
192
24
518
2.06
454
1.98
972
25
1,319
5.25
925
4.04
2,244
TOTAL
25,111
100%
22,877
100%
47,988
Source: CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)

Section 2 Demographic Information about Juvenile Arrests in Chicago

The following tables illustrate the demographic breakdown of juvenile arrests in Chicago. Below is
information about juvenile arrests by gender, and race.
Arrests Persons 17 and Under by Race (City of Chicago, 2011)
Black

White
White
Black
Asian/Pacific
Unknown
Indian
TOTAL
Hispanic
Hispanic
Islander
19,354
4,637
857
159
86
16
2
25,111
77%
18.47%
3.41%
0.6%
0.34%
100%
Source: CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)

Arrests Persons 17 and Under by Race & District (City of Chicago, 2011)
District

Black

White
White
Black
Asian/Pacific Unknown Indian
TOTAL
Hispanic
Hispanic
Islander
01
539
55
35
1
6
0
0
636
02
813
17
6
1
4
0
0
841
03
1,361
1
1
0
0
0
0
1,363
04
1,524
201
29
10
4
0
0
1,768
05
1,252
3
9
1
2
0
0
1,267
06
1,476
2
0
1
0
0
0
1,479
07
1,401
4
1
0
1
0
0
1,407
08
1,134
765
113
7
4
2
0
2,025
09
749
560
93
13
3
0
0
1,418
10
622
508
17
5
0
0
0
1,152
11
1,722
32
3
7
2
1
0
1,767
12
415
358
11
7
2
0
0
793
13
316
91
18
8
0
0
0
433
14
175
263
20
31
2
0
0
491
15
1,635
15
8
1
1
1
0
1,661
16
53
163
148
6
11
4
0
385
17
228
487
127
10
12
2
1
867
18
1,165
49
29
4
11
2
0
1,260
19
134
107
29
7
1
1
1
280
20
251
153
39
5
8
1
0
457
21
492
3
1
1
2
0
0
499
22
819
5
33
0
0
0
0
857
23
120
28
12
5
3
0
0
168
24
380
97
32
6
2
1
0
518
25
578
670
43
22
5
1
0
1,319
TOTAL
19,354
4,637
857
159
86
16
2
25,111
Source: CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)

Arrests Persons 17 and Under by Race (City of Chicago, 2012)

Black

White
White
Black
Asian/Pacific
Unknown
Indian
TOTAL
Hispanic
Hispanic
Islander
18,008
3,857
730
173
83
19
7
22,877
78.72%
16.86%
3.19%
0.76%
100%
Source: CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)

Arrests Persons 17 and Under by Race & District (City of Chicago, 2012)
District

Black

White
White
Black
Asian/Pacific Unknown Indian
TOTAL
Hispanic
Hispanic
Islander
01
536
37
15
4
7
0
0
599
02
948
13
6
1
5
0
0
973
03
1,336
0
4
3
2
1
0
1,346
04
1,270
169
18
10
7
1
0
1,475
05
1,281
10
4
0
0
0
0
1,295
06
1,295
1
1
1
4
0
0
1,302
07
1,497
1
1
0
0
0
0
1,499
08
1,222
711
99
10
6
3
0
2,051
09
666
503
77
7
6
0
0
1,259
10
766
460
13
2
3
0
0
1,244
11
1,778
18
4
9
2
1
0
1,812
12
330
291
10
3
1
0
0
635
13
289
100
14
7
0
0
0
410
14
196
285
36
38
1
3
0
559
15
1,470
6
2
0
0
0
0
1,478
16
64
142
144
7
5
2
1
365
17
175
340
82
18
5
3
2
625
18
814
41
23
3
8
1
0
890
19
244
81
62
9
3
1
1
401
20
273
104
28
11
3
0
2
421
21
55
1
1
0
3
0
0
60
22
736
8
28
2
0
1
0
775
23
13
9
1
1
0
0
0
24
24
321
98
20
4
9
1
1
454
25
433
428
37
23
3
1
0
925
TOTAL
18,008
3,857
730
173
83
19
7
22,877
Source: CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)

Arrest Persons 17 and Under by Gender (City of Chicago, 2011 & 2012)
2011
TOTAL
2012
Male
Female
Male
Female
21,199
3,912
25,111
19,172
3,703
Percentage
84.42%
15.58%
100%
83.81%
16.19%
CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)

TOTAL
22,8753
100%

Arrest Persons 17 and Under by Gender & District (City of Chicago, 2011 & 2012)
District

2011

TOTAL
2012
Female
Male
Female
01
429
207
636
375
224
02
716
125
841
789
184
03
1,164
199
1,363
1,162
183
04
1,461
307
1,768
1,225
250
05
1,027
240
1,267
926
369
06
1,197
282
1,479
1,035
267
07
1,265
142
1,407
1,317
182
08
1,653
372
2,025
1,709
342
09
1,255
163
1,418
1,131
128
10
1,068
84
1,152
1,142
102
11
1,577
190
1,767
1,652
160
12
691
102
793
556
79
13
359
74
433
347
63
14
433
58
491
495
64
15
1,528
133
1,661
1,370
108
16
335
50
385
310
55
17
707
160
867
471
154
18
899
361
1,260
612
277
19
228
52
280
326
75
20
380
77
457
350
71
21
406
93
499
50
10
22
701
156
857
651
124
23
144
24
168
20
4
24
453
65
518
382
72
25
1,123
196
1,319
769
156
TOTAL
21,199
3,912
25,111
19,172
3,703
CPD Research & Development Division, Research & Analysis Section (CLEARDW, 3/22/13)

TOTAL

Male

There were two arrests in 2012 that were classified as UNKNOWN

599
973
1,345
1,475
1,295
1,302
1,499
2,051
1,259
1,244
1,812
635
410
559
1,478
365
625
889
401
421
60
775
24
454
925
22,875

Section 3 Juvenile Arrests & Offenses by District and by Volume

The following tables report the numbers of arrests of people age 17 and younger in each Chicago Police
District in calendar years 2011 and 2012. Juveniles may be held in police custody while they are under
investigation for criminal offenses. However, some juveniles are released without being charged: not all
juvenile arrests result in court referral. Additionally, some juveniles may be arrested for multiple
offenses during the same incident, so these data describe numbers of arrests, not numbers of
individuals who were arrested or ultimately prosecuted. Most juveniles in Chicago are arrested for
misdemeanor offenses.
Arrests Misdemeanor and Felony Offenses for Persons 17 Years and Under by District (City of Chicago,
2011 & 2012)
District4

2011
TOTAL
2012
FELONY
MISDEMEANOR
FELONY
MISDEMEANOR
01
75
502
577
85
463
02
191
536
727
243
628
03
288
875
1,163
262
841
04
308
1,254
1,562
332
967
05
303
832
1,135
254
897
06
286
956
1,242
265
839
07
415
775
1,190
428
848
08
379
1,434
1,813
306
1,497
09
220
1,017
1,237
264
807
10
315
650
965
332
652
11
827
655
1,482
899
593
12
120
611
731
85
499
13
80
297
377
103
267
14
87
314
401
99
344
15
377
914
1,291
338
824
16
57
292
349
55
274
17
118
657
775
105
458
18
146
999
1,145
115
700
19
45
209
254
56
293
20
50
360
410
58
309
21
119
339
458
11
49
22
178
606
784
192
485
23
31
111
142
0
18
24
131
327
458
95
302
25
276
901
1,180
207
622
TOTAL
5,425
16,423
21,848
5,189
14,476
CPD Research & Development Division, Research & Analysis Section (CLEARDW, 4/19/13)

TOTAL
548
871
1,103
1,299
1,151
1,104
1,276
1,803
1,071
984
1,492
584
370
443
1,162
329
563
815
349
367
60
677
18
397
829
19,665

Districts 13, 21, and 23 merged with other districts at various points in 2012 which accounts for some of the
variation in numbers.

Juvenile Arrests & Offenses in Each Chicago Police District Rank by Volume
Rank
Total Juvenile Arrests
Felony Arrests
Misdemeanor Arrests
2011
District
No.
District
No.
District
No.
1
08 Chicago Lawn
2025 11 Harrison
827
08 Chicago Lawn
1434
2
04 -- South Chicago 1768 07 Englewood
415
04 South Chicago
1254
3
11 Harrison
1767 08 Chicago Lawn
379
09 Deering
1017
4
15 Austin
1661 15 Austin
377
18 Near North
999
5
06 Gresham
1479 10 Ogden
315
06 Gresham
956
6
09 Deering
1418 04 South Chicago 308
15 Austin
914
7
07 Englewood
1407 05 -- Pullman
303
25 Grand Central
901
8
03 Grand Crossing 1363 03 Grand Crossing 288
03 Grand Crossing 875
9
25 Grand Central
1319 06 Gresham
286
05 Pullman
832
10
05 Pullman
1267 25 Grand Central
279
07 Englewood
775
11
18 Near North
1260 09 Deering
220
17 Albany Park
657
12
10 Ogden
1152 02Wentworth
191
11 Harrison
655
13
17 Albany Park
867
22 Morgan Park
178
10 Ogden
650
14
22 Morgan Park
857
18 Near North
146
12 Monroe
611
15
02 Wentworth
841
24 Rogers Park
131
22 Morgan Park
606
16
12 Monroe
793
12 Monroe
120
02 Wentworth
536
17
01 -- Central
636
21 Prairie
119
01 Central
502
18
24 Rogers Park
518
17 Albany Park
118
20 Foster
360
19
21 Prairie
499
14 Shakespeare
87
21 Prairie
339
20
14 Shakespeare
491
13 Wood
80
24 Rogers Park
327
21
20 Foster
457
01 Central
75
14 Shakespeare
314
22
13 Wood
433
16 Jefferson Park
57
13 Wood
297
23
16 Jefferson Park
385
20 Foster
50
16 Jefferson Park
292
24
19 Belmont
280
19 Belmont
45
19 Belmont
209
25
23 Town Hall
168
23 Town Hall
31
23 Town Hall
111
Source: Chicago Police Department Research and Development Division, Research & Analysis Section
(May, 2013). This table does not include arrests for City of Chicago municipal ordinance violations, which
are factored into the total number of arrests per district reported by the CPD.

Rank
2012
1
2
3
4
5
6
7
8
9

Total Juvenile Arrests

District
No.
08 Chicago Lawn 2,051
11 Harrison
1,812
07 Englewood
1,499
15 Austin
1,478
04 South Chicago 1,475
03 Grand
1,346
Crossing
06 Gresham
1,302
05 Pullman
1,295
09 Deering
1,259

Felony Arrests
District
11 Harrison
07 Englewood
15 Austin
04 South Chicago
10 Ogden
08 Chicago Lawn

No.
899
428
338
332
332
306

Misdemeanor Arrests
District
No.
08 Chicago Lawn
1,497
04 South Chicago
967
05 Pullman
897
07 Englewood
848
03 Grand Crossing 841
06 Gresham
839

06 Gresham
09 Deering
03 Grand

265
264
262

15 Austin
09 Deering
18 Near North

824
807
700

Crossing
10
10 Ogden
1,244 05 Pullman
254
10 Ogden
652
11
02 Wentworth
973
02 Wentworth
243
02 Wentworth
628
12
25 Grand Central 925
25 Grand Central 207
25 Grand Central
622
13
18 Near North
890
22 Morgan Park
192
11 Harrison
593
14
22 Morgan Park
775
18 Near North
115
12 Monroe
499
15
12 Monroe
635
17 Albany Park
105
22 Morgan Park
485
16
17 Albany Park
625
13 Wood
103
01 Central
463
17
01 Central
599
14 Shakespeare
99
17 Albany Park
458
18
14 Shakespeare
559
24 Rogers Park
95
14 Shakespeare
344
19
24 Rogers Park
454
01 Central
85
20 Foster
309
20
20 Foster
421
12 Monroe
85
24 Rogers Park
302
21
13 Wood
410
20 Foster
58
19 Belmont
293
22
19 Belmont
401
19 Belmont
56
16 Jefferson Park
274
23
16 Jefferson Park 365
16 Jefferson Park 55
13 Wood
267
24
21 Prairie
60
21 Prairie
11
21 Prairie
49
25
23 Town Hall
24
23 -- Town Hall
0
23 Town Hall
18
Source: Chicago Police Department Research and Development Division, Research & Analysis Section
(May, 2013). This table does not include arrests for City of Chicago municipal ordinance violations, which
are factored into the total number of arrests per district reported by the CPD.

Section 4 - Formal/Informal Station Adjustments

As an alternative to referring the case to Juvenile Court, a youth officer may release a young person
from custody with a station adjustment. There are two types of station adjustments: informal and
formal. A youth officer may give an informal station adjustment if he decides there is probable cause to
believe the juvenile committed an offense. A formal station adjustment is different in that a juvenile
must also admit involvement in the alleged offense. The juveniles admission can later be used as
evidence against him if he violates the terms of the formal adjustment and his case is referred to court.
Although they are not convictions, station adjustments usually appear in a juveniles arrest history. All
formal station adjustments must be recorded with the Illinois State Police. Informal station adjustments
for felonies must also be recorded with the Illinois State Police, and informal station adjustments for
misdemeanors may be recorded. Station adjustments can be expunged from a juveniles record.
There were 1,080 formal and 6,149 informal station adjustments reported by CPD in 2012.

STATION ADJUSTMENTS (CITY OF CHICAGO, 2011 & 2012)

2011
5

DISTRICT
01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
5

Formal
Adjustments
37
21
13
16
36
35
27
75
64
34
116
208
59
47
140
67
141
28
18
27
16
15
6

Informal
Adjustments
345
210
114
201
182
171
288
648
489
312
311
280
153
152
502
121
273
703
110
133
121
119
57

2012
Formal
Adjustments
34
23
96
17
33
13
19
55
32
25
69
116
42
42
72
53
84
79
29
23

Informal
Adjustments
223
298
252
207
205
184
370
828
429
356
311
169
94
228
490
113
222
382
175
108

11

131

Districts 13, 21, and 23 merged with other districts at various points in 2012.

TOTAL
639
552
475
441
456
403
704
1,606
1,014
727
807
773
348
469
1,204
354
720
1,192
332
291
137
276
63

24
25
TOTAL

23
161
1,430

128
379
6,502

17
96
6,149

132
242
1,080

300
878
15,161

SOURCE: Youth Investigation Section, Detective Division, provided to CPD Research & Development on 28 March 2013

Appendix A. Juvenile Arrests by District Persons 17 and Under (City of Chicago, 2009-2012)
District

2009

2010

2011

2012

01
02
03
04
05
06
07
08
09
10
11

676
873
1,942
2,001
1,627
2,040
1,665
2,565
1,671
1,349
2,478

685
731
1,660
1,914
1,464
1,674
1,447
2,247
1,334
1,348
2,141

636
841
1,363
1,768
1,267
1,479
1,407
2,025
1,418
1,152
1,767

599
973
1,346
1,475
1,295
1,302
1,499
2,051
1,259
1,244
1,812

% Change
2009-2012
-11.4%
+11.45%
-30%
-26.2%
-20.4%
-36.1%
-10%
-20%
-24.6%
-7.8%
-26.8%

12
957
880
793
635
-33.6%
13
551
417
433
410
-25.6
14
815
588
491
559
-31.4%
15
2,021
1,975
1,661
1,478
-26.9%
16
685
494
385
365
-46.7%
17
1,031
959
867
625
-39.4%
18
662
770
1,260
890
+34.4%
19
317
318
280
401
+26.5
20
559
590
457
421
-24.7
21
443
472
499
60
-86.4
22
1,266
1,129
857
775
-38.8
23
248
212
168
24
-90.3
24
920
708
518
454
-50.6
25
1,862
1,406
1,319
925
-50.3
TOTAL
31,224
27,563
25,111
22,877
-26.7%
Source: Chicago Police Departments Research and Development Division, Research and Analysis Section
(March 2011 and May 2013)

PAGE 1

PAGE 2

PAGE 3

PAGE 4

PAGE 5

PAGE 6

PAGE 7

PAGE 8

PAGE 9

PAGE 10

PAGE 11

PAGE 12

First Defense for All: Ending the False Confession Epidemic

The First defender movement organizes volunteer attorneys to provide free legal defense to people
arrested or detained in police stations, when their right to counsel has materialized but the Office
of the Public Defender (in most states) is not allowed to represent anyone, as it is not yet appointed.
In Illinois, as in most states, the public defender must be appointed by a judge - often days after
someone has been alone without contact with anyone but police and prosecutors. This 48-72
hours is when most people are convinced to waive their rights, for lack of hope, knowledge, and
real access to counsel.
Learn how we have organized coverage every minute of every day since 1995, with volunteer
attorneys ready to deploy to Chicago police stations when a loved one calls 1(800) LAW-REP4 to
report an arrest.
We will share our model and training materials, a new report about the cost-savings First Defense
promises, and any and all information that could help you start something similar in your own
area to help reduce disproportionate minority confinement, mass incarceration, and wrongful
convictions.
For 15 years, First Defense has been a private non-profit model for advancing accountability and
fairness at the first stage of a criminal case: the police investigation. First Defense prevents and
intervenes in the cycle of crime and disenfranchisement through three strategies: 1- the Hotline, ;
2- Street Law trainings and the Know Your Rights leadership development and movement building;
and 3- collecting data and engaging with policy campaigns that advance more fairness, equality,
and accountability in the juvenile and criminal justice systems.
Presenters:
Eliza Solowiej, Executive Director
Eliza is dedicated to stopping the cradle-to-prison pipeline and replacing it with government
accountability for human rights. To this end, she has worked for 18 years in youth, community and
organizational leadership development. She has also been a leader of organizing initiatives
including the campaigns to prevent the deployment of semi-automatic assault rifles to patrol
officers, save Chicagos public mental health clinics, and close the Cook County Juvenile
Temporary Detention Center. She is a Public Allies staff alumna, AmeriCorps alumna and
management consultant for capacity building and social responsibility. Solowiej is a graduate of
the University of Chicago and the John Marshall Law School and has been a foster parent for
teenaged youth in the Illinois Department of Children and Family Services. She is also a historian,
proud parent, and active mentor.
Mark Almanza, Staff Attorney
Mark is an alumnus of University of Chicago Law School and a veteran of the United States Air
Force. He previously worked at Lawndale Christian Legal Center, representing youth in juvenile
and criminal court and utilizing a holistic defense model in coordination with youth development
programming. Mark has been an active Hotline volunteer. He is a Chicago Bar Association Justice
Entrepreneur Fellow.
Jasmine Davis, Englewood Know Your Rights VISTA

Jasmine Davis has worked with youth centers and community groups from Chicago to DeKalb and
trained with School of Unity and Liberation and The Southwest Youth Collaborative. She has
dedicated her life to community education. Jasmine has worked with Generation-Y for 8 years, cofounded the Center of Change for youth in the neighborhood with the highest juvenile arrest rates
in Chicago, and was a mentor for the Kids of Dekalb. She continues to mentor street youth in her
community to imagine and create a more just future.
Guillermo Gutierrez, Board member
Guillermos long-time investment in violence intervention, prevention and youth development has
been buttressed by community partnerships with First Defense. As a Public Ally apprentice, he
served BUILD, Inc, and the North Lawndale Community then developed a leadership
development ladder for youth at risk of perpetrating or being victims of violence to lead civic
engagement initiatives and achieve personal and professional goals, and lead gang intervention
program quality control.

Custodial Suspect Legal Representation: Training Agenda

Presented by Eliza Solowiej, Mark Almanza, Jasmine Davis, and Guillermo Gutierrez

WELCOME
Introductions
History and Role of FDLA
Why is FDLA necessary if we have the Office of the Public Defender?
The impact of First Defense on a potential case, and systemic accountability
Who calls FDLA? Limitations of the statutory right to a phone call, 725 ILCS 5/103-3
The First Defense movement across the country, and abroad

CUSTODIAL SUSPECTS RIGHT TO LEGAL REPRESENTATION IN ILLINOIS
725 ILCS 5/103-4: Right to consult with attorney
Illinois gives broader protection than federal law: McCauley, Chapman, and Woods
CPD General Order G06-01-04, Arrestee and In-Custody Communications
The Rights of Witnesses

POLICE INVESTIGATION AND CRIMINAL PROCEDURE IN CHICAGO / COOK COUNTY
FDLA Shift Structure and Scheduling
Chicago Police Department Areas and Districts
Chicago Police Department Personnel
Bonds and Bond Court
Complaints of Police Misconduct
The Differences Between Juvenile and Adult Investigation and Processing
Warrants

A STEP BY STEP GUIDE TO ADVOCATING FOR INDIVIDUALS HELD IN POLICE CUSTODY
The Answering Service
Speaking to the Caller
Locating the Detainee
Determining Whether a Visit is Necessary
The Visit: Remaining Silent, Other Rights, and Medical Treatment
FDLA Paperwork: Declaration of Rights, Call Sheet, and Injury Log
Follow Up and End of Shift Procedure

TROUBLESHOOTING COMMON ISSUES AT THE POLICE STATION (interactive)

Q & A

Volunteer Attorney Manual

5100 W. Harrison Street, Chicago, Illinois 60644
HOTLINE: 1-800-LAW-REP-4 (1-800-529-7374)
www.first-defense.org


Revised January 2014

Revised January 2014

FDLA CONTACT INFORMATION

OFFICE
First Defense Legal Aid

E-Mail: fdlegalaid@gmail.com

5100 W. Harrison

Website: www.first-defense.org

Chicago, Illinois 60644

Fax: (312) 238-9344

EXECUTIVE DIRECTOR
Eliza Solowiej

(773) 354-8581

eliza@first-defense.org

STAFF ATTORNEYS
Mark Almanza

(312) 380-9012

mark@first-defense.org

Emmanuel Andre

(917) 586-2639

emmanuel@first-defense.org

Julia Bartmes

(847) 207-0150

julia@first-defense.org

Emlyn Ricketts

(312) 485-2526

emlyn@first-defense.org

OTHER
FDLA Answering Service (Appletree)

(773) 913-1631

Call the answering service to request a Spanish language interpreter.

American Sign Language Interpreter

(312) 895-4300

City of Chicago Non-Emergency Assistance

311

Revised January 2014

KNOW YOUR OFFICERS: A GUIDE TO THE PLAYERS

PLAYER

IDENTIFIERS
Blue shirt,

LOCATED AT

INVESTIGATES

OTHER

District Stations

Mostly misdemeanors

and non-forcible felonies

Marked squad car

Usually at front
desk of district
stations

Generally do not
Go to them if you
investigate, oversee beat cant get info from
cops
other officers

Special Units Officer

Jeans & bullet proof

vest, unmarked
Ford Crown
Victoria

Homan Square
Police Facility
3340 West
Fillmore

Special investigations of
gangs & narcotics, i.e.
sting operations

People often
mistake them for
detectives

Tactical Officer

Jeans & bullet proof

vest, unmarked
Office at District,
ask for Tac office
Ford Crown
Victoria

Concentrates on vice &

narcotics arrests

Can be used by
detectives to find
& arrest suspects

Youth Officer

Slacks, shirt & tie,

unmarked Ford
Crown Victoria

Mainly offices at
Area
Headquarters,
some District
offices

All youth crimes, child

abuse & neglect, missing
persons

Provide final
determination for
juveniles arrested

Detective

Slacks & blazer,

shirt & tie,
unmarked Ford
Crown Victoria

Area
Serious felonies, violent
Headquarters, 2nd
& property crimes
floor

If suspect is held
at District, Dets.
might go there

No official uniform,
sloppy business
casual, often wear
khakis or
sweatpants

Depends on
location of suspect

Might lie to
suspect about who
they are

Beat Officer

Sergeant/Station
Supervisor

Assistant States
Attorney
Felony Review

FBI/DEA

Revised January 2014

marked squad car

White shirt,

Business casual or
jeans

219 S Dearborn

Approve charges in
felony cases

Federal crimes

Refer to Federal
Defender
312-621-8300



FDLA Contact Information..................................................................................................................................i
Know Your Officers: A Guide to the Players........................................................................................... ii
Introduction to FDLA........................................................................................................................................... 5
Criminal Process and Procedure in Cook County ............................................................................... 6
Adults and Juveniles Felony ........................................................................................................................ 6
Adults Misdemeanor....................................................................................................................................... 7
Bond Court.............................................................................................................................................................. 7
Juveniles in Police Custody .............................................................................................................................. 9
What is My Role as a Lawyer? ......................................................................................................................10
What Role Do Parents or Guardians Play When Their Children Are in Police Custody?....11
How Do I Advise a Parent or Guardian at the Station?......................................................................12
How Long Can Police Hold a Minor in Custody? ..................................................................................12
Can Minors Ever Be In the Presence of Adult Detainees While in Police Custody? ..............12
Whats a Station Adjustment? ......................................................................................................................12
Calls Regarding Juveniles at the Detention Center...........................................................................125

General Shift Procedure ..................................................................................................................................16

Receiving Calls to FDLAs 24-hour Hotline.............................................................................................16
FDLA Paperwork................................................................................................................................................18
Turning in Paperwork .....................................................................................................................................19
When Multiple Calls Are Received at the Same Time ........................................................................19
We Have Your Back...........................................................................................................................................19
When to Call the Backup Attorney .............................................................................................................20
Attorney Access to Detainees .......................................................................................................................20
Filing an IPRA Complaint ...............................................................................................................................29
Passing on Information to the Next On Call Attorney........................................................................29
Follow Up Calls ...................................................................................................................................................29
Media Coverage ..................................................................................................................................................30
Items Needed for Station Visits ...................................................................................................................31
FDLA Procedure When a Call is Received..............................................................................................35
Step 1 - Record Information..........................................................................................................................35
Step 2 - Speak to the Caller ............................................................................................................................35
Step 3 - Locate the Client ................................................................................................................................35
Step 4 - Determine If A Station Visit Is Proper......................................................................................39
Step 5 - The Station Visit.................................................................................................................................44
Step 6 - Update the Caller...............................................................................................................................46
Step 7 - Complete Paperwork & Notify FDLA of the Visit ................................................................46

Revised January 2014

Frequently Asked Questions.........................................................................................................................46

CPD Area and District Locator and Map .................................................................................................48
Designated Holding Facilities.......................................................................................................................50
Chicago Police and Court Phone Directory...........................................................................................51
North Area .............................................................................................. Error! Bookmark not defined.
Central Area ........................................................................................... Error! Bookmark not defined.
South Area.............................................................................................................................................................54
Special Units.........................................................................................................................................................56
Chicago Police Headquarters........................................................................................................................57
Cook County Sheriff ..........................................................................................................................................57
Court Information..............................................................................................................................................59
Directions to Chicago Police Stations ......................................................................................................60
North Area .............................................................................................. Error! Bookmark not defined.
Central Area ........................................................................................... Error! Bookmark not defined.
South Area............................................................................................... Error! Bookmark not defined.
What if I Dont Speak Spanish? ....................................................................................................................64
Spanish Phrases for FDLA Attorneys ........................................................................................................64
If the Client Has Been Charged.....................................................................................................................65
Spanish Translation of Common Criminal Charges ............................................................................66

Revised January 2014

INTRODUCTION TO FDLA
Welcome to First Defense Legal Aid. Since 1995, FDLA has maintained a 24-hour police custody
hotline, 1-800-LAW-REP-4 (1-800-529-7374). Our staff and volunteer attorneys are always
available to provide free legal advice and counsel to people under criminal investigation by the
Chicago Police Department. Our organizers, lawyers and volunteers also teach Street Law sessions
throughout the city to educate participants about their rights when interacting with the police.
FDLA is the only organization of its kind. In Illinois, no public defender is assigned to represent an
indigent defendant until the initial court appearance (typically a bond hearing, often days after the
initial arrest). By then, charges have been filed, and more often than not, a confession obtained.
We fill this representation gap between the time a person is arrested and the time s/he is charged.
The first 48 hours in police custody is critical. During this time, suspects are most susceptible to
having their constitutional rights violated. Police officers employ a variety of coercive tactics, legal
and otherwise, to obtain a confession. Without FDLA, suspects remain in police custody during this
time without any support or advice. They are frightened, intimidated, and alone. Many confess,
some to crimes they did not commit.
With your help, FDLAs clients are protected. During your shift, you will talk to concerned family
members. You will go to police stations. You will meet many different kinds of clients. Some have
been through the system before. Some have not. You will help these people understand and assert
their constitutional rights, including the rights to counsel and to remain silent. You will help them
advocate for necessary medical care. You may come across instances of police abuse, even police
brutality. You will document that misconduct, and your presence alone will help to deter it.
You are FDLA. Without our dedicated volunteers, we could not operate. Thank you for your time,
your commitment, and your advocacy. Please let us know what you like about your FDLA
experience and what we can do to make it better. It is our pleasure to welcome you to FDLA.

-First Defense Legal Aid

Revised January 2014

CRIMINAL PROCESS AND PROCEDURE IN COOK COUNTY

The first thing you should understand as a FDLA hotline volunteer is the basic process and
procedure involved in a criminal case, from the time of arrest through the time a person is charged
and appears in court for the first time at a bond hearing. This process is generally the same, with
some variations depending on whether your client is facing felony or misdemeanor charges, and
whether your client is an adult or juvenile.

ADULTS AND JUVENILES FELONY

When a person (adult or juvenile) is arrested on a felony charge, the case is handled by a Detective
based out of one of the Area Headquarters. The Detectives investigation may include interrogating
your client, interviewing witnesses, conducting line-ups and photo identifications, and gathering
physical evidence like shell casings, fingerprints, or DNA (blood and semen).
A detective typically has 48 hours to decide whether to charge an adult suspect. When a detective
believes he has enough evidence to charge a suspect with a felony, he calls the Felony Review Unit
of the States Attorneys Office. Felony Review is staffed by prosecutors (Assistant States
Attorneys) who are available 24-hours a day. Their job is to examine the detectives work and
decide whether there is enough evidence to charge a felony. This includes a presentation by the
detective of her/his reports and other evidence. In serious felony cases, including homicides, the
felony review attorney will often conduct her own interviews with witnesses, including the suspect,
before approving or declining a felony charge. At the District level, the Station Supervisor is
responsible for ensuring that an assistant states attorney is promptly notified in the following
instances:

A.

within six (6) hours of arrest, when an arrested person is to be charged with a
felony, except felony narcotic cases and syndicated gambling cases when the
arrests are made by members of the Organized Crime Division.

B.

when a juvenile is in custody for a homicide offense.

C.

when an arrest involves statutory upgrades of misdemeanor charges based upon an

arrestees prior convictions.

D.

when any person is shot by a member of the Department.

E.

when a person is seriously injured by a member of the Department in the course of

duty performance.

For more information on felony review, see CPD General Order G06-03, Felony Review by Cook
County States Attorney.
If an adult is charged with a felony offense, he will be sent to the main Criminal Courthouse, located
at 2650 S. California Avenue (26th & California) for a bond hearing, typically the morning after
Felony Review approves the charge. The exact location and time of the bond hearing depends on
the felony charged.

Revised January 2014

ADULTS MISDEMEANOR
Most misdemeanor arrests are made by uniformed police officers, not detectives. The arresting
officer transports the suspect to the District Police Station where the suspect is booked: the
arrestee is fingerprinted, photographed, and their demographic information (name, address, date of
birth, race, identifying marks) is entered into the police computer. Their fingerprints are then run
through the system to make sure they do not have any outstanding warrants. If the individuals
prints clear, they usually are released with an I-Bond (personal recognizance bond), and told
when to come to court. Some misdemeanors, including domestic violence offenses, require a bond
hearing.
I-BONDS ARE NOT ISSUED AT THE STATION FOR VERIFIED GANG MEMBERS CHARGED WITH MISDEMEANORS.
SEE CPD GENERAL ORDER C10-01 GANG VIOLENCE REDUCTION STRATEGY VIII F. THIS CAN INDICATE AN
ONGOING INVESTIGATION OR CIVIL RIGHTS ISSUE, AS NON GANG MEMBERS MAY BE IN CPDS SYSTEM AS
VERIFIED GANG MEMBERS. CONSIDER GOING TO THE STATION FOR THESE INDIVIDUALS AS INFORMATION ON
THE GANG VIOLENCE REDUCTION STRATEGY, A DOR AND OUR DOCUMENTATION CAN BE VITAL. THEY ARE
OFFERED RELEASE FROM THE STATION IF A FRIEND OR FAMILY MEMBER CAN BRING CASH TO THE POLICE
STATION IMMEDIATELY. YOU CAN HELP THEM UNDERSTAND THAT THIS MAY NOT BE REIMBURSED IF THE
JUDGE APPOINTS THE PUBLIC DEFENDER, IT MAY BE USED AS REASON TO NOT APPOINT A PUBLIC DEFENDER,
AND THE PERSON BRINGING THE MONEY MAY THEN BE CONNECTED TO A GANG AS WELL, OR THEIR
MEMBERSHIP STATUS MIGHT BE USED TO FURTHER EVIDENCE THAT OF THE DETAINEE.

BOND COURT
Depending on the seriousness of the charge, the criminal record of the defendant, and other
evidence in aggravation or mitigation, the Judge presiding at a bond hearing may issue an I-Bond
(release on personal recognizance), D-Bond (10% of the bond amount must be posted for release),
Cash Bond (100% of the bond amount must be posted for release), or arrange for Electronic
Monitoring. Under electronic monitoring, the defendant is fitted with an ankle bracelet that sends a
radio signal to a unit attached to the defendants phone line. The unit informs the Cook County
Sheriff when the defendant enters or leaves his or her home or if the equipment is tampered with.
Bond can be made by posting cash or credit cards. Stocks, bonds, or real estate-checks will not be
accepted. A picture I.D. is required. Bond can be posted at Division V at Cook County Jail, 2700 S.
California Ave. If family member can make it to bond court, they should stand up when the clients
name is called so that the Judge is aware that someone is concerned.
The main number for Cook County Jail is 773-674-7100. Inmate information: 773-674-5245.
On weekends and holidays, all bond hearings take place at 12:00 p.m. at 2600 S. California,
Room 100.

FELONY BOND COURT

Central Bond Court (Branch 1) - 11:00 a.m. M-F - 2600 S California, Room 100

Revised January 2014

8

Homicide/Sex Crimes Bond Court (Branch 66) - 12:00 p.m. M-F - 2600 S. California, Room 101
(Including all juveniles charged as adults for non-narcotic offenses.)
Felony Drug Bond Court 9:00 a.m. M-F - 2600 S. California, Room 100
Domestic Violence Bond Court 9:00 a.m. M-F - 555 W. Harrison St. 312-325-9500
This list may be outdated depending on changes in Cook County Circuit Court policies. If you are
unsure when or where a person may be sent for bond court, ask the officer at the district where
that person is being held in custody or call Central Booking: 312-745-5202.

MISDEMEANOR
Bond hearings are held at these locations M-F at 9:00 a.m. and 1:30 p.m.
5101 S. Wentworth (Area 1)

773-373-8877

727 E. 111th St. (Area 2)

773-982-3059

2452 W. Belmont Ave. (Area 3)

773-404-3316

3140 W Flournoy St (Area 4)

773-265-8927

5555 W. Grand Ave. (Area 5)

773-804-6154

Traffic Court (Branch 2) - 12:30 p.m. - 2600 S. California

Revised January 2014

773-869-4122

JUVENILES IN POLICE CUSTODY

A person 17 years old or younger is considered a minor in Illinois according to the Juvenile Court
Act. As you will note below, minors have greater protections while in police custody than adults,
age 18 and older. The protections afforded by the Act continue even in cases where the young
person, due to the seriousness of their alleged offense, will be subject to the automatic transfer
provisions of the Act and will be tried as an adult in court.
The investigative process for juveniles is similar to that of adults, with one important distinction: A
youth officer must be involved in the investigation. If the police want to question a juvenile, a
youth officer must be present for the interrogation. While the police must also make an attempt to
contact the juveniles parents or guardian, the questioning may proceed even if the guardian is not
present.
In theory, the Youth Officers job is to act as an interested adult if a parent or guardian is not
present during questioning, and then to process the child once he or she is charged. As at least one
Illinois court has noted, the Youth Officer serves two masters - the youth and the State, and he or
she may not advocate as zealously for the juvenile as a family member, legal guardian, or defense
lawyer. In re GO, a Minor, 191 Ill.2d 37 (2000).
When making a station visit for a juvenile client, be sure to document whether a Youth Officer has
been contacted, particularly in serious investigations. For example, if your minor client gave a
statement before you arrived at the police station, you should find out if the Youth Officer was
present and what role they played during the interrogation. The presence or absence and actions
or inaction of the Youth Officer may be important factors in determining whether the juvenile
defendants confession was voluntary and therefore admissible.
A youth officer has some discretion in whether a case will be referred to court or deferred, and even
if the youth officer refers a case to court, the States Attorneys Office will review it and decide
whether or not to prosecute the case. That decision is usually made before the first court
appearance. The juvenile client will check in with a screening probation officer who will tell them
whether or not they have to go in front of a judge.
If a juvenile is charged as an adult, his criminal case will be heard in adult court (26th & California),
and he will have an adult bond, but he will be held at the Juvenile Temporary Detention Center
(JTDC) and not the Cook County Jail. The JTDC, also known as the Audy Home, is located at 1100 S.
Hamilton. Like the Cook County Jail, it is a pre-trial jail, used for holding minors while their case is
pending if they cannot post bond and are not eligible for some other form of release (like home
detention or electronic monitoring).
The following chart generally describes actions that police may take with respect to juveniles.

Revised January 2014

10

Revised January 2014

11

WHAT IS MY ROLE AS THE LAWYER FOR A JUVENILE CLIENT?

You are required to go to the Police Station on all calls involving minors, including misdemeanors.
This requirement includes cases where the child is accused of a misdemeanor or is given a station
adjustment (see below). The reason is simple: minors in police custody are especially prone to
police abuse.
The juvenile interview is essentially the same as with an adult. Be sure to fill out all necessary
paperwork, including the DOR. Minors can assert their own rights, even if you have concerns that
they may not fully understand them at that time. If you are concerned about the childs level of
understanding, be sure to note this in your paperwork. Make sure that the client understands that
what they discuss with their parents can be used against them in court. In videotaped homicide
investigations, make sure both parent and child know that any conversation in the interview room
will be recorded unless the attorney is in the room.

WHAT ROLE DO PARENTS OR GUARDIANS PLAY WHEN THEIR CHILDREN

ARE IN POLICE CUSTODY?
1. When police take a minor suspect into police custody, the law requires that Police make a
reasonable attempt to contact the parents or legal guardian. Unlike adults, where police will ONLY
give out information to the adult's lawyer, Police should tell the parents or guardian where the child
is being held.
2. However, in most cases POLICE OFFICERS CAN AND DO QUESTION CHILDREN WITHOUT THE
PARENTS BEING PRESENT. The law only requires that a "reasonable attempt" be made to locate
parents. In practical terms, this typically means that police call parents only once and fail to leave a
message or stop by the house and leave a business card without further information.
Police, however, are not allowed to question children under the age of 13 accused of Criminal Sexual
Assault or Homicide without a lawyer being present. The burden is on the police to find a lawyer
for the child if they want to question the child.
3. Police do NOT have to tell parents if their children are being viewed as witnesses or suspects.
Police frequently tell parents that their children are just witnesses.
PRACTICE TIP: IS THE PARENT THE LEGAL GUARDIAN? ONLY THE LEGAL GUARDIAN FOR THE CHILD CAN
ADVOCATE FOR HIM OR HER, AND HAVE THE CHILD RELEASED INTO THEIR CARE. POLICE CAN CHECK DCFS
RECORDS TO DETERMINE WHO IS THE CHILDS LEGAL GUARDIAN AND WILL ONLY ALLOW THE LEGAL GUARDIAN
AND ATTORNEY TO SEE THE CHILD.

The presence of a parent or guardian at the police station during a minors time in custody can
greatly influence the Youth Officers decision to refer the minors case to court or make a station
adjustment. Strongly advise the parent or guardian to go to the station as soon as possible.
If the parents or guardian tell you they cannot or will not go to the police station, ask if there is
another adult family member that can go. Explain that if no family members show up at the station
to advocate for the child, the Department of Children and Family Services (DCFS) may be contacted.

Revised January 2014

12

HOW DO I ADVISE A PARENT OR GUARDIAN AT THE STATION?

It is probably best to limit the amount of access a parent has to their child while in police custody.
It is important that the parent be there to emotionally support the child, and this usually is the case,
but some parents may feel that the child needs to be disciplined or should own up to what they did.
Parents may express feelings of anger towards their child, urging them to do the right thing and
trying to convince the child that explaining, confessing or taking responsibility for their actions is
best. Avoid this by briefly outlining the process of arrest, investigation, and charging. Explain the
childs right to silence to the parent and stress the importance of avoiding an admission. Make sure
the parent understands that even what the child says to the parent might lead to a conviction that
could have a very serious impact on the childs future.
Explain to the parents that they cannot be present when you question the child because their
presence would destroy the attorney-client privilege. It is unlikely that a parent who understands
that they could be called as a witness against their own child will insist on being in the interview
room. Instead, have the parent come into the room, hug their child, tell them that they love them,
explain that you are a lawyer who is there to help them, and then step out so you can conduct your
interview.

HOW LONG CAN POLICE HOLD A MINOR IN CUSTODY?

Minors under 12 can only be detained at the police station for 6 hours.
Minors between 12 and 17 can be detained for up to 12 hours for non- violent offenses and up to 24
hours for violent offenses.
It does NOT matter that a minor could be charged with a crime where they will be tried as an adult.

CAN MINORS EVER BE IN THE PRESENCE OF ADULT DETAINEES WHILE IN

POLICE CUSTODY?
Yes and no. Although there is a general Sight and Sound separation rule between adult and
juvenile detainees juveniles cannot be held in a cell with adults - juveniles can be placed in a line-
up with adults provided they are under the constant supervision of a youth officer. Be sure to note
any violation of these requirements.

WHATS A STATION ADJUSTMENT?

In cases involving non-serious offenses, such as curfew violations, gang loitering, fighting in school,
or theft, police may release juveniles with station adjustments rather than referring them to court.
This usually happens when there is not enough evidence to bring formal charges or when the police
decide not to pursue the case further because the child has little or no criminal history. A station
adjustment that is satisfactorily completed is an arrest that shows up on the juveniles record, but it
is not a conviction. If a juvenile fails to abide by the terms of a station adjustment, the case may still
be referred to court.

Revised January 2014

13

There are two types of station adjustments, Formal and Informal:
Informal Station Adjustment

Formal Station Adjustment

(nothing in writing)

Juvenile officer determines there is probable cause that

minor committed the act

Juvenile officer determines there is probable cause that

minor committed the act AND admission by the minor of
involvement in the offense

Minor and parent, guardian or legal custodian must agree in

writing to the formal station adjustment and must be
advised if the consequences of violation of any term of the
agreement

Minor and parent, guardian or legal custodian must be

provided with copy of formal station adjustment agreement
including:
Presenting offense
Acknowledgement that the terms and
consequences have been explained
Acknowledgement that formal station adjustment
record may be expunged (under Section 5-915)
Acknowledgement that minor understands his/her
admission of involvement in offense may be
admitted in future court hearings
Statement that all parties understand terms and conditions
of formal station adjustment and agree to the process

Conditions:

Curfew
Conditions restricting entry into designated
geographic areas
No contact with specified people
School attendance
Up to 25 hours of community service work
Community mediation
Teen court or peer court
Restitution limited to 90 days

If minor refuses or fails to abide by conditions, juvenile

officer may impose formal station adjustment or refer case
to States Attorney

Revised January 2014

Conditions:
Limited to 120 days
Minor shall not violate any laws
Juvenile officer may also add the following
conditions:
o Attend school
o Abide by set curfew
o Pay restitution
o Refrain from possessing a firearm
o Report to a police officer at designated
times and places
o Including reporting that minor is at home
at designated hours
o Up to 25 hours of community service work
o Refrain from entering designated
geographical areas
o Community mediation
o Teen court or peer court
o Refrain from contact with specified
persons
Formal station adjustment does not constitute an
adjudication of delinquency or criminal conviction. Record
of formal station adjustments is to be kept by Illinois State
Police.

14

Informal station adjustment does not constitute an
adjudication of delinquency or criminal conviction.
Informal station adjustments for felony offenses are to be
recorded by Illinois State Police, may record misdemeanor
offenses

Minor or parent, guardian or legal custodian or both the

minor, parent, guardian or legal custodian may refuse
formal station adjustment and have the matter referred to
court. (Also may, within 30 days, revoke their consent and
have matter referred to court.)

Admission by minor is admissible at further court hearings

as long as the statement would be admissible under the
rules of evidence.

If the minor violates any term or condition, the juvenile

officer must provide written notice of the violation to the
minor and parent, guardian or legal custodian. After
consultation with the minor and parent, guardian or legal
custodian, the juvenile officer may take any of the following
actions:

Warn the minor of the consequences of continued

violations and continue the formal station
adjustment

Extend the formal station adjustment for up to a

total of 180 days

Extend community service hours to up to a total of

40 hours

Terminate the formal station adjustment

unsatisfactorily and take no further action

Terminate the formal station adjustment

unsatisfactorily and refer the case to court

If it seems reasonable, ask the Youth Officer to release the child with a warning rather than a
station adjustment. If the Youth Officer is not amenable to this, advocate for an informal
station adjustment rather than a formal adjustment.
Formal station adjustments require the child to sign a written admission a confession regarding
his involvement in the offense. If the child fails to comply with the conditions of the formal
adjustment, their case could be referred to Juvenile Court, and the written admission may be used
as evidence against the child.
While there may be no room to negotiate whether the child will receive a formal or informal
adjustment, you may be able to negotiate the conditions of the formal adjustment. Make sure that
completion of the conditions is reasonably certain given the childs living situation. For example, if
the youth officer refers the child to a counseling program, is there such a program? Does the child
have reliable, safe transportation to get to the program and money for fees? Does the child have
other responsibilities such as babysitting younger siblings or relatives that might prohibit the
childs completion of the program?

Revised January 2014

15

Be sure that the family and child understand what is expected of the child and that failure to
complete the conditions could result in the case being referred to court.

CALLS REGARDING JUVENILES BEING HELD IN THE DETENTION CENTER

The Public Defenders Office represents most juveniles being held at the Juvenile Temporary
Detention Center (JTDC) while their cases are pending. On occasion, police investigate juveniles
held at the JTDC in connection with other alleged crimes for which they have not yet been charged.
Because a judge may only appoint the Public Defender once a case has been formally charged, the
Public Defenders Office cannot represent its own clients during police investigations. FDLA has an
agreement with the JTDC to represent detainees during police investigations, and with Public
Defenders Office to represent its clients during police investigations prior to formal charging.
The JTDC is located at 1100 S. Hamilton Ave., near Ogden & Taylor. The phone number is 312-738-
8200. The number for the Juvenile Justice Division of the Public Defenders Office is 312-433-7046.

MINORS RELEASED TO CHICAGO POLICE FOR INVESTIGATION

When police want to remove a minor from the JTDC for investigation, there is a court hearing on the
States Attorneys Request for the Minor Respondent's Temporary Release to Law Enforcement.
The Juvenile Justice Division of the Public Defenders Office represents its client at those hearings.
The judge usually agrees to release the minor to police that day, and an Assistant Public Defender
calls the FDLA Hotline to obtain representation for the minor during the police investigation. The
Assistant Public Defender will provide the FDLA attorney with at least the minors name, date of
birth, and police facility to which the minor is being taken. Usually, the Assistant Public Defender
can also provide the name of the officer or detective investigating the minor and the offense being
investigated. The FDLA attorney must proceed to the police station where the minor is being taken
as quickly as possible and request to visit with the minor as soon as the minor arrives.
FDLA policy regarding a station visit under these circumstances is generally the same as for any
other station visit (see the section entitled FDLA Procedure When A Call Is Received, beginning at
page 35). You should advise the minor regarding her/his rights to remain silent and to assistance
of counsel, describe the tactics that police can use to obtain confessions, and complete the
Declaration of Rights (DOR) form. You should then notify the investigating officer that the minor is
invoking his rights and serve the DOR on the officer. You should ask the minor for his guardians
contact information, as well as ask the minor whether he consents to having you update his
guardian and/or the Public Defenders Office on the status of the investigation.

CHICAGO POLICE INVESTIGATIONS AT THE DETENTION CENTER

When JTDC staff requests that law enforcement respond to an incident alleged to have occurred in
the JTDC, the Chicago Police Department may investigate the incident at the detention center. In
cases where a minor resident will be investigated by police at the JTDC, staff or an Assistant Public
Defender will call FDLA to obtain representation for the minor. The FDLA attorney on call should
go to visit the minor at the JTDC.

Revised January 2014

16

When you enter the court facility at 1100 S. Hamilton Ave. to visit a minor resident, you must walk
upstairs on the east side of the building (facing the parking deck). Check in with JTDC staff at a
front desk; tell the JTDC staff member the name of the resident you are there to see. If there is any
confusion as to who you are because you are not on the residents visitors list, tell the staff member
that you were called by another member of the JTDC staff or by the Public Defenders Office.
A supervisor will approve your visit. Request a private room for your meeting with the resident, if
one is available. You should advise the minor of his rights as a custodial suspect and help him
invoke his rights to remain silent and to assistance of counsel. Complete the DOR and serve it on a
member of the Chicago Police Department who has responded to the JTDC. If the CPD has not yet
arrived, you should wait a reasonable amount of time to see them. (Call the FDLA Staff Attorney on
back-up to determine what is reasonable.) The JTDC staff may bring officers back to the room
where you are meeting with your client. Have the minor invoke his rights in front of the police. If it
is impossible for you to see a member of the CPD at the JTDC, call the back-up. You will decide
whether it is appropriate to leave a copy of the DOR with JTDC staff or whether you should proceed
to the police station to serve it there.

GENERAL SHIFT PROCEDURE

First Defense Legal Aid maintains a 24-hour Chicago Police Custody Hotline: 1-800-LAW-REP-4
(800-529-7374). Callers who choose the menu option for people who are currently being held in
custody by the Chicago Police are connected with the on-call attorney.

RECEIVING CALLS TO FDLAS TWENTY-FOUR HOUR HOTLINE

Calls regarding arrestees in Chicago are forwarded to volunteers preferred phone numbers, usually
their cell phones, so there is no requirement that volunteers come to the FDLA office during their
shifts. Volunteers may, within reason, attend to their personal business during shifts as long as
they have access to a reliable vehicle and remain immediately available to visit a police station
anywhere in Chicago if necessary. Time is always a critical factor in felony investigations. A delay
of as little as an hour can seriously impact FDLAS ability to help a person held by detectives in a
coercive interrogation environment.

PLEASE BE SURE YOUR RINGER IS ON DURING YOUR SHIFT!

FDLA OFFICE CALL FORWARDING WEEKDAYS
From 9 a.m. to 8 p.m. on weekdays, calls regarding people in Chicago Police custody are forwarded
to volunteers from the FDLA office. Unless you utilize a Google voice number or other forwarding
system, the original callers phone number will be displayed on your caller ID, preceded by 111.
When you pick up the call, an automated feature will tell you that you are receiving a call from First
Defense Legal Aid. Press one to accept the call.

THE ANSWERING SERVICE NIGHTS AND WEEKENDS

Revised January 2014

17

On weekends and from 8 p.m. to 9 a.m. on weekdays, FDLA uses Appletree, an answering service, to
screen calls to the 24-hour Hotline. If you get a call from the answering service, 773-913-1631 or
708-836-6000 will display on your caller ID. Appletree should contact the on-call attorney only
when the call involves an individual currently being held in Chicago Police custody or a similar
emergency criminal issue. When the service screens the call, the operator gathers the following
information before contacting the on-call attorney: name of person in custody; date of birth; police
station the person was taken to, if known; the name, relationship, and phone number of the caller,
and the date, time, and location of the arrest. Then the operator will call you, provide that
information, and patch you through to the caller.
The majority of FDLA calls are from family members or friends of people in custody. More often
than not, the caller has valuable information regarding how the person was taken into custody and
what the investigation may be about.

WHAT IF I GET A CALL THAT HAS NOTHING TO DO WITH FDLA?

The FDLA phone system is designed to screen out calls having nothing to do with FDLAs services.
Rather, it is supposed to connect people calling about civil legal issues to CARPLS, Cook Countys
Legal Assistance Hotline, and refer people looking for the Public Defenders Office to that number.
However, if you get calls regarding issues other than a person being held by Chicago Police, please
refer callers to the following services:
1. Calls regarding someone who is currently on house arrest or being held at Cook County Jail;
caller wants to reach the Assistant Public Defender handling the case.
Please explain that First Defense Legal Aid is not part of the Public Defenders Office and does not
represent people in court. If the case is in Chicago, refer the caller to the following numbers for the
Public Defenders Office: 773-674-3217 (felonies); 312-603-8343 (traffic & misdemeanors). If the
case is in a suburban district of the Cook County Circuit Court, refer the caller to the main number
for the Public Defenders Office: 312-603-0600.
If the person wants to hire a private attorney, please e-mail a message including the callers name
and phone number to the Staff Attorney (fdlegalaid@gmail.com). FDLA staff will return the call.
2. Calls regarding civil legal issues, such as divorce, child custody, housing, eviction,
bankruptcy, debt, benefits, etc.
Please explain what FDLA does, that FDLA never takes any cases because no one does what we do,
refer the caller to CARPLS, Cook Countys Legal Assistance Hotline: 312-738-9200, and ask the
caller to save the Hotline number and to call as soon as someone they know is arrested by Chicago
police.
3. Calls regarding a person who is being held at an area hospital for a 48-hour psychiatric
hold or who has been involuntarily committed to a mental health facility.
FDLA sometimes receives calls from people who were involuntarily committed to a mental health
facility or who are being held at area hospitals under 48-hour psychiatric hold. In these cases, the
caller is in the psychiatric ward of the hospital, not under police guard, and has demanded but has

Revised January 2014

18

been refused release. While this is not considered a Hotline call where FDLA would provide
assistance, the answering service might contact you because the person is calling from a hospital.
In this situation, you should ONLY provide the information below; provide no specific legal advice
on the persons case; and refer the caller to the Guardianship and Advocacy Commission. This
organization can be reached Monday through Friday, between 9 a.m. and 5 p.m. at (312) 793-5900,
or toll free at (866) 274-8023.
4. Other calls.
If you get a call that you are not sure how to handle, get the callers name and phone number and
contact the Staff Attorney on back-up for advice. Referrals to other legal and social services are
available. Always be clear about what we do and invite the caller to use us when we can help with
someone in Chicago police custody. The rapport you build even in giving a referral can help spread
the word about what we do.

FDLA PAPERWORK
FDLA paperwork on clients who are charged is forwarded to the clients defense lawyer and some
has been introduced as evidence in past cases. Your paperwork may be used in court proceedings.
Please keep this in mind when completing paperwork.

CALL SHEET
The Call Sheet contains general information regarding the call, crucial information about the client
and their arrest, and a record of all conversations and activity you have on the case. Please provide
as much information as possible, including the names and star numbers of any police officers you
speak to.
A CALL SHEET SHOULD BE COMPLETED FOR EVERY CALL, WHETHER OR NOT THERE WAS A
STATION VISIT.

DECLARATION OF RIGHTS FORM (DOR)

The DOR establishes that FDLA is representing the client, and that the client wishes to exercise
his/her constitutional rights to remain silent and to counsel.
A DOR FORM SHOULD BE COMPLETED DURING EVERY CLIENT VISIT, PROVIDED THE CLIENT
ASSENTS.
PRACTICE TIP: IT IS NOT NECESSARY FOR AN OFFICER TO SIGN THE DOR, BUT IT IS IMPERATIVE THAT YOU ASK.
IF YOU ASK AND THE OFFICER OR DETECTIVE REFUSES, FILL IN THE OFFICERS NAME AND STAR NUMBER IN THE
APPROPRIATE SPACES AND PRINT REFUSED ON THE OFFICERS SIGNATURE LINE.
IF YOU ARE SEPARATED FROM YOUR CLIENT BY GLASS AND THEY AGREE TO THE DOR, WRITE THEIR NAME ON
THE DETAINEE LINE AND NOTE THAT THEY COULD NOT SIGN BECAUSE OF THE GLASS.

Revised January 2014

19

IF THE DETECTIVE OR OFFICER REFUSES TO ACCEPT A COPY OF THE DOR, ASK THAT THE CLIENT BE RE-
MIRANDIZED AND PERMITTED TO ASSERT THEIR RIGHTS ORALLY IN YOUR PRESENCE. IF THAT REQUEST IS
DENIED, DOCUMENT THE DENIAL.

INJURY LOG
The injury log contains important details regarding any allegation of injuries suffered while in
police custody, or otherwise related to the case, as well as any treatment received.
AN INJURY LOG SHOULD BE COMPLETED DURING ANY CLIENT VISIT WHERE THE CLIENT
REPORTS INJURY.

Log all injuries that the client reports, regardless of if they are visible or not. If you cannot see a
particular injury, please do not write that you do not see it; just that the client reports the injury.

TURNING IN PAPERWORK
Please call or e-mail the Staff Attorney on back-up as soon as possible to inform him/her of any
station visits you made. Then, e-mail (fdlegalaid@gmail.com) completed paperwork. Finally, mail
all original paperwork to First Defense Legal Aid, 5100 W. Harrison, Chicago, Illinois 60644.

IT I S C RUCIAL T HAT F DLA R ECEIVE B OTH N OTICE O F S TATION V ISITS A ND Y OUR

PAPERWORK A S S OON A S P OSSIBLE.
WHEN MULTIPLE CALLS ARE RECEIVED AT THE SAME TIME
Using the following guidelines, the hotline attorney should take each call from the service, prioritize
the urgency of each call and make station visits in that order. Calls not requiring station visits
should be briefly assessed when received and then handled once all urgent calls have been
concluded:
1st Priority

Felony investigation, juvenile or adult (if more than one felony

investigation, try to attend to the more serious charge first)

2nd Priority

Juvenile in custody, misdemeanor investigation

3rd Priority

Adult or juvenile, already charged, and injured in custody or not

receiving medical evaluation or treatment

4th Priority

5th Priority

Adult in custody, misdemeanor investigation, Adult or juvenile,

already charged

All Non-Station Visits

WE HAVE YOUR BACK

Revised January 2014

20

A back up attorney is assigned for each shift and can be reached directly, or by calling the
answering service. One of the Staff Attorneys will be your backup. You will be notified before your
shift which Staff Attorney will be your backup. If you cannot reach the Staff Attorney, please call the
Executive Director. The staff contact information can be found inside the front cover of this manual.

WHEN TO CALL THE BACKUP ATTORNEY

The backup attorney is a resource for the on call hotline attorney. You should call the backup
attorney:

If your car breaks down and you cant make it to the station in a timely fashion;

If you have more than one 1st priority calls simultaneously and cannot respond to the
police station on both calls in a reasonable amount of time;

If you have a question about FDLA procedure;

If you are not sure what to do at the station;

If you receive calls to represent co-defendants (two or more people who are custodial
suspects being investigated for the same crime);

PRACTICE TIP: THERE MAY BE A CONFLICT OF INTEREST IF YOU TRY TO ADVISE TWO DEFENDANTS UNDER
ARREST FOR THE SAME CRIME AT THE SAME TIME. THE BEST PRACTICE IS FOR YOU TO REPRESENT ONE
SUSPECT AND THE BACK UP ATTORNEY TO REPRESENT THE SECOND SUSPECT.

ATTORNEY ACCESS TO DETAINEES

According to the Illinois Supreme Court decisions of People v. McCauley and People v. Chapman,
individuals in police custody Illinois have a state constitutional right to counsel. This applies even in
situations where clients have not requested attorneys themselves or do not know one has been
retained to represent them.
RELEVANT STATUTES AND CASE LAW

725 ILCS 5/103-3 Right to communicate with attorney and family; Transfers.
(a) Persons who are arrested shall have the right to communicate with an attorney of their choice
and a member of their family by making a reasonable number of telephone calls or in any other
reasonable manner. Such communication shall be permitted within a reasonable time after arrival
at the first place of custody.
(b) In the event the accused is transferred to a new place of custody his right to communicate with
an attorney and a member of his family is renewed.

5/103-4 Right to consult with attorney.

Any person committed, imprisoned or restrained of his liberty for any cause whatever and whether
or not such person is charged with an offense shall, except in cases of imminent danger of escape,

Revised January 2014

21

be allowed to consult with any licensed attorney at law of this State whom such person may desire
to see or consult, alone, and in private at the place of custody, as many times and for such period
each time as is reasonable.
See also, Chicago Police Department General Order G06-01-04 Arrestee and In-Custody
Communications, below.
People v. Willis (Opinion Filed on June 3, 2005)
The Illinois Supreme Court held that a confession obtained after a 73-hour detention by the Chicago
police was admissible in court. The court held that the test for whether a confession is admissible
when obtained during an unreasonable extended detention is whether the confession was
voluntary.
People v. Chapman (Opinion filed on December 1, 2000)
The Illinois Supreme Court case, People v. McCauley (1994), has been modified by the Illinois
Supreme Court in People v. Chapman (2000), and the Third Appellate court decision in People v.
Milestone (1996) has been overturned. Milestone held that a defendants statement made after the
attorney for the defendant called the station but before that attorney arrived at the station must be
suppressed. That is no longer the case law in Illinois.
People v. McCauley held that an attorney at the police station must be allowed access to client and
client must be informed of attorneys presence. All of defendants statements made after the
attorney arrives at the station must be suppressed since they were not made knowingly and
intelligently. This is based on the Illinois State Constitution and Illinois case law Smith and Griggs,
the privilege against self-incrimination and the right to due process. A common FDLA situation,
McCauley did not address whether statements made after an attorney for the defendant calls on the
telephone, identifies himself as the attorney for the defendant and the defendant subsequently
makes statements while the attorney is en route to the station, should be suppressed. People v.
Chapman refuses to hold that McCauley applies to an attorney who is present by telephone, holding
that an attorney must be physically present and immediately available to defendant for
McCauley to apply. What this means for you is that police may continue to question the defendant
unless you are physically present at the police station.
SPECIAL NOTE: In Chapman, the court refused to extend McCauley because there was no type of
misconduct or coercion on the part of the investigating officers and the A.S.A. found by the trial
court. If there is any type of police misconduct or coercion, the State has the burden of proving that
the defendant knowingly and intelligently waived his state constitutional rights. You are a key
witness for your client regarding the type of misconduct and abuse that occurs on the part of the
ASA and investigating officers.
Berghuis v. Thompkins (Opinion filed on June 1, 2010)
In Berghuis v. Thompkins, Van Chester Thompkins was arrested and questioned about a homicide.
Police questioned him for nearly three hours and he remained silent. In a last-ditch effort,
detectives asked whether he believed in God, whether he prayed to God, and whether he prayed for
forgiveness for the shooting. Thompkins answered ''yes'' to each of the questions. Based on this

Revised January 2014

22

three-word oral statement, and despite the fact that Thompkins refused to sign a written
statement, he was charged, convicted, and sentenced to life in prison without parole.
On appeal, Thompkins argued that his confession was obtained in violation of the Fifth Amendment.
The Michigan Supreme Court sided with the State, finding that Thompkins waived his Fifth
Amendment right when he answered the detectives questions in the third hour. The Sixth Circuit
reversed the state court, finding that Thompkins had not waived his rights because he had refused
to sign an acknowledgement that he had been informed of his Miranda rights, refused to answer
questions, and rarely even made eye contact with the police for nearly three hours. On June 1, 2010,
the Supreme Court reversed the Sixth Circuit, holding that the state court's rejection of Mr.
Thompkins' Miranda claim was correct.
The Court reasoned that Mr. Thompkins failed to invoke his Miranda rights to remain silent and to
counsel because he failed to do so "unambiguously." In addition, the Court reasoned that Mr.
Thompkins waived his Miranda right to remain silent when he "knowingly and voluntarily" made a
statement to the police. Simply put, an interrogee seeking to remain silent must break that silence
and police are no longer required to expressly ask a suspect to waive their rights. The Court has
succeeded in flipping Miranda on its head: where there was once the requirement of an
unambiguous waiver of your rights to silence and counsel, the Court now requires an unambiguous
declaration of those rights: I will not talk. I want my lawyer.

Revised January 2014

23

Revised January 2014

24

Revised January 2014

25

Revised January 2014

26

WHEN COPS ASK QUESTIONS, STATE LAW MAY BE FOIL

April 9, 2003
Timothy P. O'Neill

In the 1940s Capt. Louis Renault referred to it as "rounding up the usual suspects."

In the 1950s TV cops called it "bringing them downtown for questioning."

Regardless, the Miranda decision in the 1960s changed forever the way police interrogate suspects.

Yet two recent decisions here in Illinois show there are issues that remain unresolved in this area of
the law.

First, let's review the basics.

Generally, police are free to question anyone they please about any subject. Restrictions apply,
however, when police want to interrogate a person in custody. Before there can be "custodial
interrogation," the famous Miranda warnings must be given and the suspect must properly waive
his rights. Miranda v. Arizona, 384 U.S. 436 (1966).

Note that police do not have to give Miranda warnings before they interrogate someone not in
custody; nor do they have to give Miranda warnings if they merely take someone into custody and
do not try to interrogate.

Miranda applies only to custodial interrogation.

"Custody" means that the police are restraining a person from leaving. Thus, if the police are merely
asking questions of a person who is free to leave the police station at any time, they do not have to
give Miranda warnings.

This, however, leads to the problem presented in a recent 7th U.S. Circuit Court of Appeals
case: First Defense Legal Aid v. City of Chicago, 319 F.3d 967 (7th Cir. 2003). The case deals with
people interrogated by the Chicago police who exist in a legal "twilight zone."

First Defense Legal Aid expressed concern that police invite to the station persons they suspect of
crime but lack the evidence to charge with offenses, ask these persons for information, and keep
them cooped up because they, not being formally in custody, do not receive either Miranda
warnings or direct notice that they are free to leave." At 970. The opinion referred to these people
as "witnesses."

First Defense, a group of volunteer lawyers seeking to represent these "witnesses," obtained a
permanent injunction from the U.S. District Court ordering the Chicago police and Cook County
state's attorney to both notify the "witness" when an attorney arrives at the station purporting to
represent him and to allow the attorney to confer privately with that person.

The 7th Circuit reversed. The appeals court first noted that not only does a person being questioned
in a non-custodial setting have no right to be notified that an attorney is at the station and wants to

Revised January 2014

27

see him, but that even a person in custody and eligible for Miranda warnings has no such right
under the U.S. Supreme Court's decision in Moran v. Burbine, 475 U.S. 412 (1986). Moreover,
attorneys have no independent constitutional right to demand access to these witnesses, for the
latter have no right to counsel under either Miranda or the Sixth Amendment.

If a witness -- who by definition is not a custodial suspect and is thus free to leave -- is refused his
request to leave, the witness himself may indeed be able to obtain damages against the police. But
this possibility does not mean that an attorney has any enforceable right to demand access to such a
witness while he is at the police station.

Thus, the decision in First Defense does nothing to help either the witnesses or attorneys.

However, a recent decision from the 1st District Appellate Court reminds us that Illinois grants
more rights to custodial suspects than does the U.S. Supreme Court. And in doing so it may grant
more rights to "witnesses" as well.

Vernon Woods was taken into custody and read his Miranda rights on the afternoon of Nov. 5,
1999. People v. Woods, 2003 Ill.App. LEXIS 321 (1st Dist., March 19). Woods waived his rights and
voluntarily answered questions from the police.

He was still in custody the following afternoon when attorney John Nocita arrived at the station.
Woods' girlfriend had retained Nocita to represent Woods. The police refused Nocita's request to
see Woods. Nocita then wrote a note telling Woods that he (Nocita) is a lawyer and advising him not
to speak with the police without an attorney present. The desk officer agreed to make sure that
Woods got the note.

That evening one Agent Delaney arrived at the station to continue interrogating Woods. Delaney
was given Nocita's note and business card; after reading the note, he threw it away. He then told a
fellow agent named Ward-Hudson that an attorney had come to see Woods and had left his
business card.

Ward-Hudson in turn told Woods that an attorney had come to see him. She also told Woods that if
he wanted to talk with the attorney, then she would be unable to speak with him again. Woods
responded that he wanted to speak with her -- not the attorney. About 30 hours later, Woods made
and signed in incriminating statement.

In attempting to suppress the statement, Woods claimed that his rights were violated when the
police refused Nocita's request to see Woods at the police station.

There is no question that Woods has no such right under federal law. In Moran v. Burbine, supra, the
U.S. Supreme Court specifically rejected this argument for two reasons. First, a custodial suspect
who has not previously been charged with an offense has no right to counsel under the Sixth
Amendment.

Second, there is no Miranda violation; the custodial suspect's Miranda waiver is not affected by
whether or not an attorney happens to be at the police station. Under Moran Woods loses.

Yet Illinois has rejected Moran.

Revised January 2014

28

The Illinois Supreme Court grants custodial suspects more rights. It has held that a custodial
suspect's rights under the state Constitution are violated when officers fail to tell the suspect that
an attorney is at the station and when officers refuse an attorney who is at the station access to the
suspect. People v. Chapman, 194 Ill.2d 186 (2000), and People v. McCauley, 163 Ill.2d 414 (1994).

This is true even if the suspect has not personally retained the attorney. For example, the family of
the defendant in McCauley, unbeknown to him, retained the attorney who came to the station.

The Illinois Supreme Court has found this right to counsel in two different provisions of the Illinois
Constitution: the due process clause (Article I, section 2) and the self-incrimination clause (Article I,
section 10).

Thus, the police refusal to let Nocita see Woods must result in the suppression of the statement.

Yet the Woods court found a second, separate reason for suppression. It held that the failure of the
police to show Woods the note from Nocita advising him not to answer questions without an
attorney also violated both the Illinois due process and self-incrimination principles.

Lawyers from First Defense Legal Aid should carefully read the Woods opinion. True, Woods deals
only with "custodial suspects," not "witnesses." And neither the 7th Circuit case nor Woods will
prevent the police from manipulating so-called witnesses by denying they are in custody and thus
refusing to read them Miranda warnings before interrogation.

But Woods does provide First Defense with a tactic. If the First Defense lawyer is refused access to
one of these witnesses, the lawyer should nevertheless leave a note with the police and direct that it
be given to the person. Like the note in Woods, it should warn the person not to answer any
questions without a lawyer. If the witness at some point turns into a custodial suspect, Woods
mandates that the police will have to show him the lawyer's note before any interrogation takes
place. Moreover, if the lawyer is still at the police station at that time, the lawyer must be given
immediate access.

If, however, the police later obtain incriminating statements from the witness, yet insist that
Miranda warnings were unnecessary because he was never in custody, evidence of the undelivered
note might cast doubt on the good faith of the police and might help the witness make the argument
that he was actually in custody. The statements could then be suppressed under Woods.

Woods is a perfect example of how defendants can sometimes obtain more rights under state law
than they can through the U.S. Constitution.

Reprinted with the permission of Timothy ONeill and the Law Bulletin Publishing Company. ONeill
is a professor of law at The John Marshall Law School in Chicago. FDLA Volunteer Attorneys are
encouraged to visit his Web log and archives at www.jmls.edu/oneill.

Revised January 2014

29

FILING AN IPRA COMPLAINT

If you experience problems with police officers or are denied access to your client, immediately file
a complaint with the Independent Police Review Authority. In order to file the complaint, you will
need to have the date, time and a description of the incident. The police officer can be identified by
name, Star number, or physical description.
Remember to not give out any information regarding your clients arrest since that information can
and will be used against your client in the criminal case. Explain to the IPRA operator that the facts
of your clients case are irrelevant for the purposes of your complaint. Note the Complaint
Registration Number (CR#) in your notes.
Give your name, but use FDLAs address, 5100 W. Harrison, Chicago, IL 60644, and phone number,
(773) 354-8581.
To file an IPRA complaint against a Chicago Police Officer:

Call (312) 746-3609 or (312) 746-3594; or

Go to any District desk or to 1615 W. Chicago Ave, Chicago, IL 60622; or
File online at www.iprachicago.org.

If you have questions about whether you should file a complaint or not, you may call the backup
staff attorney, or call the office the next morning to discuss what happened.

PASSING ON INFORMATION TO THE NEXT ON CALL ATTORNEY

If a person is in custody and has not been charged at the end of your shift, please call 1-800-LAW-
REP-4 after the next shift starts. Explain that you are the previous on call and need to be patched
through to the current on call attorney. The service will connect you. Brief the current on call
attorney about the pending situation and provide them with client and family contact information.
Please be sure you speak directly with the on call attorney. Do not attempt to leave a message with
the answering service for the other attorney. If you have any problems with the answering service
operator (i.e., not understanding who you are or what you want them to do), please ask to speak
with a supervisor. If all else fails, call the backup attorney.

FOLLOW UP CALLS
FDLA aims to ensure that the CPD follows its own internal policy of charging or releasing adults in
custody within a 48-hour period, as well as releasing juveniles within any applicable statutory time
period. Therefore, we often ask on-call volunteers to "check up" on clients who are still in custody
but not yet charged at the end of a volunteers shift.

Revised January 2014

30

If the 48-hour period (or the 6 to 24-hour period for juveniles) will not toll during your shift, at the
end of your shift, please call the police station where the client is being held, identify yourself as the
attorney representing that person, and ask whether the client has been charged or released. Be
aware that an FDLA attorney will have already done a station visit, and others may have made
follow up calls. If the police officer questions who you are, you should explain that we all work for
the same organization.
If the 48-hour period (or 6-24 hour period for juveniles) will end during your shift, call the station
about an hour before the period will toll, identify yourself as the attorney representing that person,
and ask whether the client has been charged or released. If the individual has not been charged,
point out that they have been in custody for XX hours and ask if and when they will be charged.
This should result in more information - for example, that the CPD's and the family's time of arrest
do not match, or that the client should be charged shortly. Document all conversations and call the
back-up attorney. FDLA has a demand letter requesting the clients release that can be faxed to
Felony Review and the District or Area.
PRACTICE TIP: IF THE INVESTIGATION CANNOT BE CONCLUDED, OR CHARGES NOT APPROVED,
WITHIN 48 HOURS, YOUR CLIENT SHOULD BE RELEASED. HOWEVER, HE COULD BE RE-ARRESTED
LATER IF MORE EVIDENCE IS DISCOVERED. ONE COMMON EXAMPLE: THE DETECTIVE NEEDS TO
CONDUCT A LINE UP OR OTHER IDENTIFICATION PROCEDURE. HE CANNOT FIND THE WITNESS OR
BRING HER TO THE STATION TO VIEW THE LINE UP. RESULT? CLIENT RELEASED, BUT COULD BE
ARRESTED AGAIN AND BROUGHT IN FOR A LINE UP IF THE WITNESS IS LOCATED.

MEDIA COVERAGE
FDLA sometimes handles cases that receive media coverage. Your response to the press should
always be, No Comment. Please direct requests for further information to the FDLA Executive
Director. FDLA will never release names of its volunteer attorneys.
Also, please advise family members not to speak with the press. Although you cannot advise the
family (who are not your clients) not to speak to the police, do advise them not to speak to anyone
else. The bigger the case and the more press that is generated, the more likely A.S.A. Felony
Review will be pressured to prosecute your client.
You should, however, advise family members that the police may want to interview them about the
case. You might tell the family members, You can choose to talk to the police or not. You do not
have to talk to them. I cannot give you specific advice because I am representing your family
member, but you have the right to talk to a lawyer first before you talk to the police.

Revised January 2014

31

ITEMS NEEDED FOR STATION VISITS

1.

Pens and note pad officers will not provide.

2.

Watch it is imperative to document the precise time of phone calls, your arrival at the
station, conversations, and your clients assertion of rights.

3.

FDLA forms make sure that you have enough copies of the necessary forms: DOR Forms (If
you need more, call or email the office), Call Sheets, and Injury Logs, as well as 711 Consent
forms if applicable (all available for download at ShiftPlanning.com).

4.

Your IARDC Bar Card or 711 License and a State Photo ID (a Cook County Sheriffs ID also
works if you have one) you will be denied access without these forms of identification.

5.

FDLA cards

6.

Cellular phone You should have your phone available. Leave your phone in your car when
you arrive at a police station. Under no circumstances should you bring your phone
into a police lock up, or allow your client to use your phone. If you do have your
phone, notify the officer that you have your cell phone. The only thing you need in the
lock up is a legal pad, pen, and FDLA forms. If you miss a call during the visit, the phone
systems will connect the caller to the back up attorney, who will cover for you until you are
available.

7.

FDLA Volunteer Manual

AS A DIGITAL CAMERA COULD BE CONSTRUED AS

ELECTRONIC EQUIPMENT, AND THEREFORE
CONTRABAND, PURSUANT TO 720 ILCS 5/31A-
1.1(C)(2)(XI), YOU SHOULD NOT BRING A DIGITAL
CAMERA, CELL PHONE, OR OTHER ELECTRONIC
EQUIPMENT INTO THE LOCK UP OR INTERVIEW ROOM
WITHOUT WRITTEN PERMISSION FROM THE POLICE,
WHICH YOU WILL NOT OBTAIN.

Please read the following statute closely and note that it is a felony to possess any of the
items listed under subsection (c)(2) in a place used to hold in custody persons under arrest
for an offense.
(720 ILCS 5/31A1.1) (from Ch. 38, par. 31A1.1)

Revised January 2014

32

Sec. 31A1.1. Bringing Contraband into a Penal Institution; Possessing Contraband in a
Penal Institution.
(a) A person commits the offense of bringing contraband into a penal institution when he
knowingly and without authority of any person designated or authorized to grant such authority
(1) brings an item of contraband into a penal institution or (2) causes another to bring an item of
contraband into a penal institution or (3) places an item of contraband in such proximity to a
penal institution as to give an inmate access to the contraband.
(b) A person commits the offense of possessing contraband in a penal institution when he
possesses contraband in a penal institution, regardless of the intent with which he possesses it.
(c) For the purposes of this Section, the words and phrases listed below shall be defined as
follows:
(1) "Penal institution" means any penitentiary, State farm, reformatory, prison, jail, house of
correction, police detention area, halfway house or other institution or place for the
incarceration or custody of persons under sentence for offenses awaiting trial or sentence
for offenses, under arrest for an offense, a violation of probation, a violation of parole, or a
violation of mandatory supervised release, or awaiting a bail setting hearing or preliminary
hearing; provided that where the place for incarceration or custody is housed within
another public building this Act shall not apply to that part of such building unrelated to the
incarceration or custody of persons.

(2) "Item of contraband" means any of the following:

(i) "Alcoholic liquor" as such term is defined in Section 13.05 of the Liquor Control
Act of 1934.
(ii) "Cannabis" as such term is defined in subsection (a) of Section 3 of the Cannabis
Control Act.
(iii) "Controlled substance" as such term is defined in the Illinois Controlled
Substances Act.
(iiia) "Methamphetamine" as such term is defined in the Illinois Controlled
Substances Act or the Methamphetamine Control and Community Protection Act.
(iv) "Hypodermic syringe" or hypodermic needle, or any instrument adapted for use
of controlled substances or cannabis by subcutaneous injection.
(v) "Weapon" means any knife, dagger, dirk, billy, razor, stiletto, broken bottle, or
other piece of glass which could be used as a dangerous weapon. Such term includes
any of the devices or implements designated in subsections (a)(1), (a)(3) and (a)(6)
of Section 241 of this Act, or any other dangerous weapon or instrument of like
character.

Revised January 2014

33

(vi) "Firearm" means any device, by whatever name known, which is designed to
expel a projectile or projectiles by the action of an explosion, expansion of gas or
escape of gas, including but not limited to:
(A) any pneumatic gun, spring gun, or BB gun which expels a single
globular projectile not exceeding .18 inch in diameter, or;
(B) any device used exclusively for signaling or safety and required as
recommended by the United States Coast Guard or the Interstate Commerce
Commission; or
(C) any device used exclusively for the firing of stud cartridges, explosive
rivets or industrial ammunition; or
(D) any device which is powered by electrical charging units, such as
batteries, and which fires one or several barbs attached to a length of wire
and which, upon hitting a human, can send out current capable of disrupting
the person's nervous system in such a manner as to render him incapable of
normal functioning, commonly referred to as a stun gun or taser.
(vii) "Firearm ammunition" means any selfcontained cartridge or shotgun shell, by
whatever name known, which is designed to be used or adaptable to use in a
firearm, including but not limited to:
(A) any ammunition exclusively designed for use with a device used
exclusively for signaling or safety and required or recommended by the
United States Coast Guard or the Interstate Commerce Commission; or
(B) any ammunition designed exclusively for use with a stud or rivet driver
or other similar industrial ammunition.
(viii) "Explosive" means, but is not limited to, bomb, bombshell, grenade, bottle or
other container containing an explosive substance of over onequarter ounce for
like purposes such as black powder bombs and Molotov cocktails or artillery
projectiles.
(ix) "Tool to defeat security mechanisms" means, but is not limited to, handcuff or
security restraint key, tool designed to pick locks, popper, or any device or
instrument used to or capable of unlocking or preventing from locking any handcuff
or security restraints, doors to cells, rooms, gates or other areas of the penal
institution.
(x) "Cutting tool" means, but is not limited to, hacksaw blade, wirecutter, or device,
instrument or file capable of cutting through metal.
(xi) "Electronic contraband" means, but is not limited to, any electronic, video
recording device, computer, or cellular communications equipment, including,
but not limited to, cellular telephones, cellular telephone batteries, videotape
recorders, pagers, computers, and computer peripheral equipment brought

Revised January 2014

34

into or possessed in a penal institution without the written authorization of
the Chief Administrative Officer.
(d) Bringing alcoholic liquor into a penal institution is a Class 4 felony. Possessing alcoholic liquor
in a penal institution is a Class 4 felony.
(e) Bringing cannabis into a penal institution is a Class 3 felony. Possessing cannabis in a penal
institution is a Class 3 felony.
(f) Bringing any amount of a controlled substance classified in Schedules III, IV or V of Article II of
the Controlled Substance Act into a penal institution is a Class 2 felony. Possessing any amount of a
controlled substance classified in Schedule III, IV, or V of Article II of the Controlled Substance Act
in a penal institution is a Class 2 felony.
(g) Bringing any amount of a controlled substance classified in Schedules I or II of Article II of the
Controlled Substance Act into a penal institution is a Class 1 felony. Possessing any amount of a
controlled substance classified in Schedules I or II of Article II of the Controlled Substance Act in a
penal institution is a Class 1 felony.
(h) Bringing an item of contraband listed in paragraph (iv) of subsection (c)(2) into a penal
institution is a Class 1 felony. Possessing an item of contraband listed in paragraph (iv) of
subsection (c)(2) in a penal institution is a Class 1 felony.
(i) Bringing an item of contraband listed in paragraph (v), (ix), (x), or (xi) of subsection
(c)(2) into a penal institution is a Class 1 felony. Possessing an item of contraband listed in
paragraph (v), (ix), (x), or (xi) of subsection (c)(2) in a penal institution is a Class 1 felony.
(j) Bringing an item of contraband listed in paragraphs (vi), (vii) or (viii) of subsection (c)(2) in a
penal institution is a Class X felony. Possessing an item of contraband listed in paragraphs (vi),
(vii), or (viii) of subsection (c)(2) in a penal institution is a Class X felony.
(k) It shall be an affirmative defense to subsection (b) hereof, that such possession was
specifically authorized by rule, regulation, or directive of the governing authority of the penal
institution or order issued pursuant thereto.
(l) It shall be an affirmative defense to subsection (a)(1) and subsection (b) hereof that the person
bringing into or possessing contraband in a penal institution had been arrested, and that that
person possessed such contraband at the time of his arrest, and that such contraband was
brought into or possessed in the penal institution by that person as a direct and immediate result
of his arrest.
(m) Items confiscated may be retained for use by the Department of Corrections or disposed of as
deemed appropriate by the Chief Administrative Officer in accordance with Department rules or
disposed of as required by law.
(Source: P.A. 961112, eff. 1111.)

Revised January 2014

35

FDLA PROCEDURE WHEN A CALL IS RECEIVED

STEP 1 - RECORD INFORMATION

Record at least the following basic client information on a Call Sheet:

1. Callers name, phone number, and relationship to the person in custody

2. Clients name and date of birth or approximate age

3. The time and place of arrest

4. The district where the arrestee is being held, if known.

If you receive a call during the night or weekend shift, the answering service will have recorded
much of this information. Be careful to check its accuracy with the caller operators make
mistakes. If you receive a call during the weekday shift, you are directly responsible for getting all
of this information from the caller.

STEP 2 - SPEAK TO THE CALLER

Once the answering service has provided the information it has received from the caller, ask to be
patched to the caller so that you can speak to the caller yourself. Note any information they have
regarding the circumstances of the arrest, or the details of the legal issue. Be sure to record the
callers phone number so you can update them throughout the process.

STEP 3 - LOCATE THE CLIENT

Call the District or Area Headquarters where you believe the client is located. Provide your name
and explain that you are an attorney trying to locate your client. Give the clients name and ask if
the client is in custody. If your client was arrested very recently (within the last 2 hours), they may
not be in the computer system (the queue, in CPD lingo). Inform the officer that your client was
arrested a short time ago and ask them nicely to page the processing area. Often, clients are with
the arresting officers in the processing area of the station where the administrative portion of the
arrest is completed.
If you are able to locate the client, ask whether the client has already been charged or whether the
client is being held for felony investigation. On the Call Sheet, record the name and Star number of
the officer you speak with (usually a desk sergeant) and any comments made by the officer.
PRACTICE TIP: CONFIRM THAT THE CLIENT IS CHARGED, AND NOT MERELY UNDER ARREST. IF POSSIBLE, VERIFY
THE CHARGE. SOME OFFICERS WILL NOT PROVIDE THIS INFORMATION BUT CAN USUALLY BE CAJOLED INTO
DISCLOSING WHETHER THE CHARGE IS A FELONY OR MISDEMEANOR BY ASKING THE OFFICER IF THE CLIENT
WILL BE RELEASED FROM THE STATION OR TAKEN TO BOND COURT AT 26TH AND CALIFORNIA.

Revised January 2014

36

MISDEMEANORS, EXCEPT FOR DOMESTIC VIOLENCE, USUALLY RESULT IN AN I-BOND OR A SIGNATURE BOND
AND ALL FELONY CHARGES REQUIRE A BOND HEARING, USUALLY AT 26TH AND CALIFORNIA.
I-BONDS ARE NOT ISSUED AT THE STATION FOR VERIFIED GANG MEMBERS CHARGED WITH MISDEMEANORS.
SEE CPD GENERAL ORDER C10-01 GANG VIOLENCE REDUCTION STRATEGY VIII F. MAKE THE STATION VISIT IF
YOU CAN. THERE IS NO CLEAR PROCESS FOR VERIFYING SOMEONE AS A GANG MEMBER AND THEY MAY BE
SUBJECT TO AN ONGOING INVESTIGATION WHILE IN CUSTODY.
NORMALLY A CLIENT WILL HAVE ONE OF THESE TWO RESULTS ONCE FINGERPRINTS CLEAR AND IT IS
DETERMINED THAT THERE ARE NO OUTSTANDING WARRANTS FOR THE CLIENTS ARREST.
IF THE OFFICER TELLS YOU THAT THE CLIENT HAS A HOLD FROM DETECTIVES, ASSUME THE CLIENT IS STILL
UNDER AN ACTIVE FELONY INVESTIGATION AND MAKE A STATION VISIT.

IF YOU CANNOT LOCATE THE CLIENT

Call the District where you believe the client is being held. If the caller cannot tell you what station
is close to the place of arrest, you may search for Chicago Police stations close to an address in
Google or on the Chicago Police Department website:
https://portal.chicagopolice.org/portal/page/portal/ClearPath/Communities/Districts
If the client is not in custody at one of the district stations near the place of arrest, call the
corresponding Area Headquarters.
PRACTICE TIP: WHEN YOU CALL A DISTRICT, THE DESK SERGEANT WILL BE ABLE TO TELL YOU IF YOUR CLIENT IS
IN THAT DISTRICTS LOCK UP. THE DISTRICT LOCK UPS ARE USED FOR PEOPLE WHO HAVE BEEN CHARGED AND
ARE WAITING TO I-BOND OUT OR GO TO BOND COURT. IF YOU SUSPECT THAT YOUR CLIENT IS UNDER FELONY
INVESTIGATION, SHE WILL LIKELY BE WITH THE DETECTIVES IN AN AREA INTERVIEW ROOM AND THE DESK
SERGEANT MAY NOT KNOW WHO THE DETECTIVES HAVE IN CUSTODY. SO, IF YOU CANT FIND YOUR CLIENT AT
THE DISTRICT, YOU SHOULD ALWAYS TRY THE AREA NEXT. AFTER THE INITIAL FELONY INVESTIGATION IS
COMPLETE, IF THE PERSON INVOKES AND WILL NOT TALK TO THE DETECTIVES, IF CHARGES HAVE BEEN FILED, OR
IF THE INVESTIGATING DETECTIVES GO OFF DUTY, THEY MAY MOVE YOUR FELONY CLIENT FROM THE AREA
INTERVIEW ROOM TO THE DISTRICT LOCK UP.

If the client is not at the District or Area, call Central Booking (312) 745-5202. Be prepared with
the correct spelling of the clients full name as well as their date of birth. Central Booking can tell
you if the client is in custody, when they were arrested, and at which district the person was
booked. Sometimes Central Booking will be able to tell if the person has been charged, and if they
have or will receive bond.
While you are waiting for Central Booking, you should consider that your client may be held by a
special unit at one of the following locations.

OTHER POSSIBILITIES

SPECIAL UNITS

Revised January 2014

37

Sometimes, if a client is arrested by a Special Unit they are taken to Homan Square (in the old Sears
Building at 3340 W. Fillmore) before they are booked. If the alleged crime involves one of these
departments, call to see if the client is being held there. Your best bet is to try the Organized Crimes
24-Hour Desk at (312) 746-7510, but see page 45 for a complete list of Special Units.
THE JUVENILE INTERVENTION AND SUPPORT CENTER (J.I.S.C.)

If the client is a juvenile and is arrested in Area 1 or the 10th District, they may be detained at the
JISC. The JISC is located at 3900 S. California Avenue and provides police and social service
intervention services for police Districts 2, 7, 8, 9, 10, and 21. The JISC processes all juvenile arrests
in these Districts except for incidents involving: death or great bodily harm; shots fired at or by the
police; the possession or use of a firearm; any sex offense; traffic citations; or charges requiring the
juvenile to be processed as an adult. In addition, all juveniles arrested for a warrant in these
Districts will be processed at the JISC. The phone number for the JISC is (312) 747-3934.
HOSPITALS

FDLA sometimes receives calls regarding individuals who are in Chicago Police custody, but have
been taken to area hospitals for treatment before they are booked. If there are allegations of police
misconduct or brutality, or that an injury occurred during or shortly before the arrest, the client
may have been taken to an area hospital. Call the District and ask which area hospitals they take
injured clients to.
Call the hospital emergency room, identify yourself as the clients attorney, and verify they are
being treated there and are guarded by Chicago Police. Then proceed to the hospital and do a
station visit at the hospital. If your transportation time is more than hour, call while on the way
to make sure they have not yet been transferred to the police station. If they have, go to the police
station instead to do a visit.
ALIASES

Sometimes our clients are booked or book themselves under aliases. If you believe this may be the
case, call the family member or friend and request one or two aliases the client has used in the past.
Call the District, Area, and Central Booking.
CENTRAL DETENTION

Clients are taken here if they have warrants, usually from another state. The phone number for
Central Detention is (312) 745-4460.
FEDERAL CUSTODY

If you cannot locate a client, it could be that they are in federal custody. To contact the U.S.
Marshalls office call 312-353-5294. If a client is in federal custody, refer the caller to the Federal
Defenders Office at 312-621-8300.

IF YOU STILL CANNOT LOCATE THE CLIENT

If you cannot locate the client within a short time span (1 to 2 hrs), it may be necessary to go to the
station to make sure that no interrogation is taking place.

Revised January 2014

38

If you are certain the client is at a particular District or Area, ask to speak to the Desk Sergeant. Ask
the Sergeant to check the queue to be sure the client is not in lock-up, in the TAC office, with an
outside unit, or with the detectives at an Area Headquarters. If the police continue to deny the
client is there and you are certain they are being held there, make a station visit.
PRACTICE TIP: SOMETIMES, A CLIENT ARRESTED (USUALLY FOR A MISDEMEANOR) MAY BE PHYSICALLY
PRESENT AT A POLICE STATION, BEING PROCESSED BY THE ARRESTING OFFICERS, BUT NOT YET BE FORMALLY
BOOKED INTO THE DISTRICT LOCK UP. THE DESK SERGEANT CAN ONLY TELL YOU WHO IS IN THE LOCK UP, AND
THE SERGEANT PROBABLY WILL NOT DO MORE THAN THAT OVER THE PHONE. SO, IF YOU ARE CONFIDENT
THAT YOUR CLIENT IS AT A PARTICULAR DISTRICT, BUT THE SERGEANT SAYS SHE IS NOT IN THE LOCK UP, YOU
MAY WANT TO GO TO THE STATION. THE DESK SERGEANTS WILL USUALLY TAKE EXTRA STEPS TO LOCATE YOUR
CLIENT UNDER THESE CIRCUMSTANCES IF YOU SHOW UP IN PERSON AT A STATION DEMANDING TO SEE HER.

If you have tried all of the above and you still cannot locate the client, contact the family members
or friends and give them Central Bookings number. Explain that they should call that number in a
few hours and call FDLA when they locate the client.
PRACTICE TIP: SOMETIMES, INDIVIDUALS ARE ACTUALLY LOCATED AT POLICE STATIONS AND THE OFFICERS
REFUSE TO GIVE US THAT INFORMATION.
HOWEVER, THERE IS ALSO OFTEN ANOTHER EXPLANATION FOR NOT BEING ABLE TO LOCATE A CLIENT. IN
MAKING THIS JUDGMENT CALL, IT IS IMPORTANT TO CONSIDER THE SITUATION.
IF THE FAMILY MEMBERS BELIEVE A CLIENT IS AT A PARTICULAR STATION ONLY BECAUSE THEY LIVE IN THAT
DISTRICT, THIS IS GENERALLY NOT ENOUGH INFORMATION TO WARRANT A STATION VISIT OR AN ACCUSATORY
CONFRONTATION WITH THE POLICE.
IF THERE ARE OTHER FACTORS, SUCH AS A PHONE CALL RECEIVED FROM THE CLIENT WITH INFORMATION ON
WHERE THEY ARE BEING HELD, ALLEGATIONS OF VIOLENCE AGAINST OR BY A POLICE OFFICER, A HISTORY OF
RECENT INVESTIGATION OR HARASSMENT BY THE POLICE, A PARTICULARLY HIGH-PROFILE CRIME, OR
CONFLICTING INFORMATION FROM DIFFERENT POLICE OFFICERS REGARDING THE CLIENTS WHEREABOUTS, IT
MAY BE NECESSARY TO PROCEED TO THE STATION.
IF YOU ARE IN DOUBT WHETHER TO MAKE A STATION VISIT, CALL THE BACKUP ATTORNEY.

CLIENT LOCATION CHECKLIST

1.

CALL THE DISTRICT WHERE THE CALLER BELIEVES THE CLIENT IS BEING HELD (OR THE
DISTRICT CLOSEST TO THE ADDRESS OF THE ARREST)

2.

CALL CENTRAL BOOKING (312) 745-5202

3.

CALL THE AREA THAT CORRESPONDS WITH THE ORIGINAL DISTRICT;

4.

CALL THE 24-HOUR DESK AT HOMAN SQUARE (312) 746-7510

5.

CALL CENTRAL DETENTION (312) 745-4460

Revised January 2014

39

6.

CALL DISTRICTS NEAR THE ORIGINAL DISTRICT

7.

CALL EMERGENCY ROOMS NEAR THE ORIGINAL DISTRICT

8.

IF THE CLIENT IS A JUVENILE ARRESTED IN 002, 007, 008, 009, 010, OR 021, CALL THE
JUVENILE INTERVENTION AND SUPPORT CENTER (JISC) (312) 747-3943

9.

CALL U.S. MARSHALLS TO SEE IF CLIENT IN FEDERAL CUSTODY

10.

IF ALL ELSE FAILS, CALL THE STAFF ATTORNEY

STEP 4 - DETERMINE IF A STATION VISIT IS PROPER

HOTLINE CALLS THAT REQUIRE A STATION VISIT
ADULTS IN CUSTODY UNDER FELONY INVESTIGATION

If a person is taken in for questioning, held at any of the Area Headquarters, kept in a district
police station lockup with a hold by area detectives, or is picked up or held by a stop order or
investigative alert from a detective, the hotline attorney should assume that there is a pending
felony investigation and should visit the client at the station.
IF YOU HAVE ANY DOUBT AS TO WHAT IS BEING INVESTIGATED, CONSIDER IT TO BE A FELONY
INVESTIGATION AND MAKE A STATION VISIT!
JUVENILES (17 OR UNDER)

Given the many documented coerced confessions obtained from juveniles held without access to
counsel, it is imperative that the hotline attorney go to the police station for any custodial situation
involving a minor, including those types of calls resulting only in a station adjustment. The purpose
is three fold:

the hotline attorney can ensure the physical safety of the juvenile;
the juvenile can be counseled on the dangers of answering police and prosecutor questions;
and the attorney can explain to the parents/guardians what is happening once they are
present at the police station.

FDLA has seen several cases where a juvenile was allegedly picked up on a misdemeanor charge,
only to be interrogated by area detectives for an unrelated felony investigation. A quick response to
the station can eliminate this situation from developing and put all police and prosecutors on notice
that counsel represents the juvenile.
PRACTICE TIP: IF THE CHILD IS HELD AT AN AREA HEADQUARTERS OR AREA YOUTH INVESTIGATIONS OFFICE, THE
HOTLINE ATTORNEY SHOULD ASSUME THAT THIS IS A FELONY INVESTIGATION. YOU SHOULD DO A STATION
VISIT, AND TAKE ALL NECESSARY MEASURES TO ENSURE PROTECTION OF THE JUVENILE.

Revised January 2014

40

WITNESSES

FDLA has seen many instances where detectives and Felony Review Assistant State Attorneys
characterize a detainee as a Witness only to file charges against the detainee after a statement is
given.
It is necessary to go to the police station to represent all individuals involved in a felony
investigation, even if the police categorize a particular person as a Witness. If you are denied
access to your client at the police station because the person in custody is described as a Witness,
ask the officer if the person in custody was read the Witness Advisory. He will assuredly answer
that he has delivered the advisory, which states that the client is not a suspect and is free to leave.
Next, ask to see the client so you can make certain that he is aware that he is not a suspect and is
free to leave at any time. Finally, ask the officer if he will deliver a note to the witness telling the
witness that you were at the station to represent him and that he is free to leave at any time. It is
unlikely that you will be allowed to see the client or have a note delivered, but it is important to try.
MOST IMPORTANTLY, CAREFULLY DOCUMENT THIS CONVERSATION ON YOUR CALL SHEET AND
BE SURE TO RECORD THE TIME OF THE CONVERSATION AND THE NAMES AND STAR NUMBERS
OF ALL INDIVIDUALS YOU SPEAK WITH!
POLICE ABUSE

Regardless of whether the client has been charged, if there are allegations of police brutality,
volunteer attorneys should proceed to the police station to document the allegations and any
visible injuries. Bruises heal quickly and therefore it is imperative that you visit the station and
document the clients injuries if at all possible.
As a digital camera could be construed as electronic equipment, and therefore contraband,
pursuant to 720 ILCS 5/31A-1.1(c)(2)(xi), you should not bring a digital camera, camera phone, or
other electronic equipment into the lock up without written permission from the police, which you
will not obtain.
Instead, make a request of the Detective that an evidence technician photograph your client. If that
request is denied, be sure to document it. If there are visible injuries, it is essential that you call the
FDLA office immediately the following morning so we can make sure the Public Defender is aware
of the situation at the clients bond hearing. The Public Defender can obtain a court order
permitting an investigator to enter the jail and take photographs. If the client is injured and
released, you should tell him to document the injury with photographs and a visit to the doctor as
soon as possible.
Be sure to complete an Injury Log to further document the injuries and to document any complaint
of non-visible injuries.
Request that an Evidence Technician (ET) take photographs of your clients injuries. The hotline
attorney should also request to be present while these photographs are taken to ensure that all
areas of injury are photographed.
PRACTICE TIP: FDLA HAS DOCUMENTED MANY SITUATIONS WHERE AN ARRESTEE IS BEATEN BY POLICE AND
THEN INVESTIGATED AND CHARGED WITH AGGRAVATED BATTERY OF A PEACE OFFICER.

Revised January 2014

41

TYPICAL QUESTIONS BY DETECTIVES AND STATES ATTORNEYS IN THESE INVESTIGATIONS FOCUS ON GETTING
THE ARRESTEE TO ADMIT THAT SHE WAS RESISTING ARREST, INTERFERING WITH AN ARREST, OR PROVOKED
THE INCIDENT IN SOME WAY.
NEVER ALLOW AN ARRESTEE TO BE INTERROGATED IN THIS SITUATION. ANY ADMISSIONS COULD BE THE BASIS
FOR INCREASING THE BOND AMOUNT AND MAY HAVE A NEGATIVE EFFECT ON THE CLIENTS ABILITY TO DEFEND
THE CHARGE AND TO PURSUE CIVIL RIGHTS LITIGATION. THE MEDICAL RECORDS, EVIDENCE TECH PHOTOS, AND

HOTLINE ATTORNEY DOCUMENTATION WILL SPEAK FOR THEMSELVES.
ADULTS BEING HELD FOR MISDEMEANORS AT A DISTRICT STATION

You do not need to make a station visit when the person has been charged with a misdemeanor or
ordinance violation and there is no indication of police misconduct or that he is being held for any
kind of felony investigation. Common misdemeanors and ordinance violations include DUI, any
traffic related offense, criminal trespass, criminal damage to property, disorderly conduct, tagging
(graffiti), assault, simple battery, domestic violence, violation of probation, soliciting, prostitution,
possession of cannabis, mob action, loitering, and theft under $300.
Most people charged with misdemeanors and ordinance violations are given I-Bonds once their
fingerprints clear the police database, indicating no outstanding warrants. If the arrestee should
be released with an I-Bond, tell the family to call 1-800-LAW-REP-4 back if they do not hear from
their relative within a reasonable period of time (e.g., 6 hours). Sometimes a person charged with a
misdemeanor is held for bond court the next day. Clarify which courthouse the arrestee will be
taken to for a bond hearing, and relay that information to the family.
If you have any doubt as to what is being investigated, consider it a felony and proceed accordingly.
I-BONDS ARE NOT ISSUED AT THE STATION FOR VERIFIED GANG MEMBERS CHARGED WITH MISDEMEANORS.
SEE CPD GENERAL ORDER C10-01 GANG VIOLENCE REDUCTION STRATEGY VIII F. THIS CAN INDICATE AN
ONGOING INVESTIGATION OR CIVIL RIGHTS ISSUE, AS NON GANG MEMBERS MAY BE IN CPDS SYSTEM AS
VERIFIED GANG MEMBERS. CONSIDER GOING TO THE STATION FOR THESE INDIVIDUALS AS INFORMATION ON
THE GANG VIOLENCE REDUCTION STRATEGY, A DOR AND OUR DOCUMENTATION CAN BE VITAL.
AN INCREASE IN CALLS FOR PEOPLE IN POLICE CUSTODY WHO HAVE MENTAL ILLNESS IS APARENT. IF THE
CALLER INDICATES MENTAL OR OTHER HEALTH CONCERN, GO TO THE STATION TO CHECK ON AND ADVOCATE
THEIR TREATMENT IF THERE IS NOT A COMPETING CALL REGARDING AN OPEN FELONY OR JUVENILE
INVESTIGATION.
CPD GENERAL ORDER G02-01-03 INTERACTIONS WITH TRANSGENDER, INTERSEX, AND GENDER
NONCONFORMING (TIGN) INDIVIDUALS ESTABLISHES PROTECTIONS FOR THESE INDIVIDUALS WHILE IN POLICE
CUSTODY. IF THE CALLED INDICATES A PERSON IS IN CUSTODY IS TIGN, CONSIDER GOING TO THE STATION.
PERSON CHARGED AND NO INDICATION OF ONGOING INVESTIGATION

When you confirm that a person is being held in custody at a Chicago Police station, ask the officer
on the phone whether the arrestee has already been charged or whether the arrestee is still under
investigation.
With few typical exceptions (listed above), if the arrestee has been charged and will be sent to Bond
Court the following day or released soon on an I-Bond, there is no need to make a station visit.
Clarify which courthouse the arrestee will be taken to for a bond hearing, and relay that

Revised January 2014

42

information to the family. If the arrestee should be released with an I-Bond, tell the family to call 1-
800-LAW-REP-4 back if they do not hear from their relative within a reasonable period of time (e.g.,
6 hours).
FDLAs priority is to assist individuals under felony investigation and juveniles in any situation.
Once the investigation is over and the person is charged, there is little if anything an attorney can
accomplish by making a station visit.
If a felony has already been charged, you may not need to do a station visit. This often happens
with on-view arrests for narcotics and firearms. For example, if the police see the client with a
bag of cocaine in her hand, there is little need for them to interrogate her about it she will be
charged with possession and sent to bond court.
If Detectives are still holding the client, or there is a hold for investigation or lock on the case, or
the States Attorney is being contacted regarding charges, the person has not been charged and the
investigation is still ongoing. Make the station visit.
Although the Hotline attorney is not required to make a station visit for lower-priority calls when
there are higher-priority calls, family/friends of the person in custody should be contacted with
information gathered, an explanation about the limitations of our service, and information
regarding bond court where applicable. If the caller requires further assistance, call or e-mail the
Staff Attorney on back-up.

HOTLINE CALLS THAT MAY NOT REQUIRE A STATION VISIT

CALLER SEEKS LEGAL ADVICE

If a person calls because he has been asked to go in for questioning, is considering turning himself
in, or believes there is a warrant for his arrest, take the following steps: (a) explain what the callers
rights are if he is arrested, particularly how he can invoke his right to counsel and to remain silent;
(b) advise the caller to have a family members and friends contact FLDA immediately if s/he is
arrested by calling 1-800-529-7374; and (c) call the Staff Attorney on back-up immediately to
report the situation. Staff will follow up with the caller regarding potential next steps.
If the police are at the callers door, advise him that he does not have to let the police in unless the
police have a valid warrant. Have the caller ask the police for the name and telephone number of
the police officer that is looking for the caller and the District or Area from which the officer works.
Call the Staff Attorney on back-up with the callers name, phone number, and that information.
If it is apparent that the caller is being arrested, advise him not to physically resist or fight back.
Proceed to the appropriate Police District or Area to represent the client.
WARRANTS WITH NO INDICATION OF ONGOING INVESTIGATION

You do not need to make a visit when the adult person has been arrested on a warrant with no
indication of ongoing investigation. These are generally warrants for Traffic Violation, Failure to
Appear in Court, Violation of Probation, or Violation of Electronic Monitoring. You should be sure
that there is no ongoing investigation, that the client is not being questioned, and that the client will

Revised January 2014

43

be allowed to post bond at the station or will be sent to bond court the following day. If you are
concerned that the person is at risk of being investigated on a/nother felony matter while in
custody, make the visit.
If not, the Hotline attorney should call the station and obtain information for the family, but beyond
this, nothing can be done since no one will be questioning the client.
PRACTICE TIP: LOCATE THE CLIENT AND VERIFY THAT HE OR SHE WAS PICKED UP ON A WARRANT. MAKE SURE
THAT THE CLIENT IS NOT BEING TRANSPORTED TO ANY AREA HEADQUARTERS, AND THEN CALL THE
FAMILY/FRIENDS AND RELAY BOND INFORMATION.

Revised January 2014

44

STEP 5 - THE STATION VISIT

If the call does not require a station visit, inform the caller and refer them, if necessary, to the FDLA
office for further information. As with any call, complete a Call Sheet and forward it to the FDLA
office appropriately.
If you have determined the call requires a station visit, notify the caller that you are going to the
police station to meet with the client.

ARRIVE AT THE POLICE STATION

When you arrive at the District, announce your presence to the Desk Sergeant and ask to see your
client. Document your arrival on the Call Sheet.
If you encounter problems (i.e. waiting for more than 15 minutes or so, detective is unavailable,
client with States Attorney), immediately ask to see the client and have the client told you are
present. Document your request on the Call Sheet. If you are still denied access to the client, ask for
the Sergeant or Watch Commander.
You may be told by the Sergeant or Watch Commander that the client is being processed and you
can see him when he is in a secure area. While you should be aggressive in your efforts to see the
client, remember to be professional. Do not let your emotions exacerbate the situation. If you feel
that you are being wrongfully denied access to the client, call the backup attorney for assistance.

MEET WITH THE DETECTIVE OR DESK SERGEANT

If it is a felony investigation, ask the Detective if they are looking for witnesses, planning on having
a lineup, whether Felony Review has interviewed the client or been called, and the likelihood of
charges. Inform the Detective you are available for a lineup and leave an FDLA Card.
If it is a misdemeanor, verify the charges and bond information with the Desk Sergeant.
Document all conversations and observations on the Call Sheet.

MEET WITH THE CLIENT

Identify yourself as the attorney their family or friends retained, and specify which family member
or friend with whom you spoke. Make clear you are their attorney and the only person with whom
they should speak.
Explain that while your conversation is required to be confidential, you do not want the client to
reveal any details about their possible involvement in the alleged offense since you are meeting
with him at a police station.
Note what the client was told about the investigation and if a lineup is scheduled. Advise the client
not to speak with the detectives or States Attorney. The only thing the client should say to the
police or the ASAs is I will not talk. I want my lawyer.

Revised January 2014

45

Explain their Miranda rights and advise them to exercise these rights. Tell them not to say, sign, or
initial anything and advise them of the numerous techniques detectives use to trick clients into
talking. Advise your client not to speak with anyone without you being present should questioning
continue after you leave. Again, the only thing the client should say to the police is I will not talk. I
want my lawyer.
Ask how the client is being treated (have they eaten, had access to the bathroom, etc.). Note any
medication the client requires and whether the client is being provided the medication.
Advise the client that they can and should request medical attention or medication if needed. If the
client needs immediate medical attention or takes medication on a regular schedule, ask the Desk
Sergeant or Detective to take them to the hospital and document this conversation on the Call Sheet.
Document any injuries the client suffered during arrest or while in custody on the Injury Log.
Request that the Evidence Technician (ET) photograph the injuries.
Assure your client that FDLA will be monitoring the investigation until the client is either charged
or released. Advise the client of the possible 48-hour detention period (or 6-24 hrs for juveniles).
Explain the scope of FDLA's representation, and get consent for paperwork to be sent over to the
Public Defenders Office.
Explain and have the client sign the Declaration of Rights (DOR) from. Please notice that the DOR
form has an RD number. This is the arrest report or police report number; kindly request to have
that number at the desk and note it on the DOR.
Gather any and all information requested on the top of the Call Sheet. Fill in every blank, if possible.
Clarify who you have consent to contact once you leave and what information they should be given.

SERVE THE DOR ON THE DETECTIVE OR DESK SERGEANT

Note on the Call Sheet how the officer reacts to the DOR, and any comments made regarding the
DOR. Leave a copy of the DOR and your card for the client, and a copy of the DOR for the police.

CLIENT MEDICAL TREATMENT AND MENTAL ILLNESS

All requests for medical treatment, dispensing of medication, and visits to a treating facility (i.e.
client is on dialysis or is receiving scheduled treatments) require evaluation at a local emergency
room. If family/friends have medication for the client, they can take it to the emergency room.
Police must take the client to the emergency room for each dose of medication. Speak directly with
the Desk Sergeant or Watch Commander and insist on having the client evaluated or medication
administered at a local emergency room. Most district stations will respond well to an attorney
concerned about the welfare of an arrestee.
If a client is suicidal, procedures are in place to have them put on a suicide watch. The hotline
attorney should speak with the Desk Sergeant and the lockup custodian, explain that the client is
suicidal, and make sure that the client is segregated and kept from harm.

Revised January 2014

46

If the caller is the client and the client is complaining of serious physical injury, counsel them to
immediately request medical attention from the lockup custodian. Most district police stations have
an unwritten policy requiring the person in custody to request treatment before any treatment is
provided. The hotline attorney should then follow up on the clients medical request by speaking
directly with the Desk Sergeant and/or Watch Commander (obtain names and Star numbers).
Since no police station is equipped with medical personnel, all requests for medical attention
require the police to transport the injured person to the nearest emergency room for evaluation
and treatment. Once this information has been conveyed, the hotline attorney should then proceed
to the police station to meet with the client and document the abuse and injuries. If the client is
taken to an area hospital, it may be possible to meet with the client in the emergency room.

STEP 6 - UPDATE THE CALLER

After leaving the station, call the family/friends of the client and inform them of the situation.
Encourage them to contact FDLA immediately if the police try to take anyone else to the station
regarding the investigation and to call FDLA during regular business hours for a follow up.

STEP 7 - COMPLETE PAPERWORK & NOTIFY FDLA OF THE VISIT

As soon as possible after leaving the station, complete the necessary paperwork and email or fax it
to the FDLA office. Call or email the backup attorney to notify them that you made the visit.
If your client has not been charged but is still in police custody, follow up throughout the remainder
of your shift and notify the next on-call of the situation.
Finally, mail all original paperwork to the FDLA office.

FREQUENTLY ASKED QUESTIONS

I RAN OUT OF FDLA FORMS/CARDS. WHAT SHOULD I DO?

If you are on a shift and realize you have run out of forms, bring a pad of paper with you to the
station. Make sure to write down the names and Star numbers of the people you speak with, as well
as the contents of the conversations you have. Gather the general information usually contained on
the intake sheet. Explain the clients rights and advise them to remain silent. Ensure the client is
being treated properly. Ask for medical attention if necessary. If there are injuries, document those
with as much detail as possible. When you arrive at or leave the station, give FDLAs address and
phone number (5100 W. Harrison, Chicago, IL 60644, 1-800-LAW-REP-4) and ask to be called if the
person will be questioned further or be put in a line-up.

Revised January 2014

47

I CANNOT FIND THE POLICE STATION ON THE PHONE DIRECTORY/IT APPEARS THE STATION
HAS MOVED.

If you have trouble locating a police station, call 311. The operator can look up the district by
address and connect you directly. If this manual contains outdated information, please contact the
FDLA office during business hours.
I HAVE EXPERIENCED A PROBLEM AT THE POLICE STATION. WHAT SHOULD I DO NEXT?

If you are ever unsure of how to proceed, call the backup attorney.
DOES THIS CALL REQUIRE A STATION VISIT?

Generally, FDLA performs station visits when an individual is in Chicago Police Department custody
and has not yet been charged with a crime or is in custody for a felony investigation. FDLA
attorneys also go out to the station if there are allegations of police brutality or abuse, or concerns
about the health or well-being of the client, regardless of if the person has already been charged.
If you are unable to determine if the client is charged or not, or if you have been given conflicting
information, do a station visit. However, it is not necessary to do a station visit only to confirm the
particular offense a client is charged with, or to clarify bonding information.
If the client is a juvenile, make the visit.

Revised January 2014

48

CPD AREA AND DISTRICT LOCATOR AND MAP

For the purposes of the Chicago Police Department, Chicago is divided into three Area Detective
Divisions and twenty-three Bureau of Patrol Districts.
The Districts are your neighborhood police stations. The beat officers and tactical teams work out
of the Districts.
The Area Detective Divisions are where the detectives work and where most felony investigations
are conducted.
The North Area shares a building with the 19th District lockup (not the 19th District station) at
Belmont and Western. The Central Area shares a building with the 2nd District at 51st and
Wentworth. The South Area shares a building with the 5th District at 111th and Ellis.

District

Area

North
011, 014, 015, 016, 017,
019, 020, 024, 025

Revised January 2014

Central
001, 002, 003, 008, 009,
010, 012, 013, 018

South
004, 005, 006, 007, 022

49

Revised January 2014

50

DESIGNATED HOLDING FACILITIES

The designated holding facility (lockup where the person will be held until released without charge,
I-Bonded and released, or shipped to bond court) for adult arrestees is based upon the district of
arrest, the gender of the arrestee, and whether the arrestee requires wheelchair accessibility as
follows:
District of
Arrest

Primary Holding Facility

Wheelchair-Accessible Holding Facility

Male

Female

Male

Female

001

Central Detention

Central Detention

Central Detention

Central Detention

002

002

002

002

002

003

003

002

003

002

004

004

005

004

002

005

005

005

006

002

006

006

005

006

002

007

007

002

007

002

008

008

002

008

002

009

009

Central Detention

009

Central Detention

010

010

011

010

011

011

011

011

011

011

012

Central Detention

Central Detention

Central Detention

Central Detention

013

018

011

018

011

014

019
(Belmont & Western)

019
(Belmont & Western)

019
(Belmont & Western)

019
(Belmont & Western)

015

015

025

015

025

016

016

025

016

025

017

016

019
(Belmont & Western)

016

019
(Belmont & Western)

018

018

Central Detention

018

Central Detention

019

019
(Belmont & Western)

019
(Belmont & Western)

019
(Belmont & Western)

019
(Belmont & Western)

020

020

019
(Belmont & Western)

020

019
(Belmont & Western)

022

022

005

022

002

024

020

019
(Belmont & Western)

020

019
(Belmont & Western)

025

025

025

025

025

Example: If your client is arrested in 014, investigation and arrest reports will be done at 014, and
then he will be transported to the 019 lockup, where he will be photographed, fingerprinted, and
held in the lockup until taken to bond court or given an I-Bond.
Note: Only the Area HQs and Central Detention have Female Holding Facilities.

Revised January 2014

51

CHICAGO POLICE AND COURT PHONE DIRECTORY

IF YOU ARE HAVING TROUBLE CONTACTING A DISTRICT, DIAL 311 AND HAVE THE OPERATOR
CONNECT YOU DIRECTLY.

AREA NORTH ( BELMONT & WESTERN)

NORTH DETECTIVE DIVISIONS
2452 W. Belmont Ave.
Violent Crimes Unit

(312) 744-8261/8262

Special Victims Unit

(312) 744-8266

Property Crimes

(312) 744-8263

DISTRICT 19 LOCKUP (LOCATED AT AREA NORTH)

District 19 Lockup

(312) 744-5983

DISTRICT 11 (HARRISON)
3151 W. Harrison
Desk Sergeant

(312) 746-8386

Tactical Office

(312) 746-6441

DISTRICT 14 (SHAKESPEARE) NO LOCKUP

2150 N. California
Desk Sergeant

(312) 744-8290

DISTRICT 15 (AUSTIN)
5701 W. Madison St.
Desk Sergeant

(312) 743-1440

Tactical Office

(312) 746-4332

Revised January 2014

52

DISTRICT 16 (JEFFERSON PARK)

5151 N. Milwaukee Ave.
Desk Sergeant

(312) 742-4480

Tactical Office

(312) 742-4531

DISTRICT 17 (ALBANY PARK) NO LOCKUP

4650 N. Pulaski
Desk Sergeant

(312) 742-4410

Tactical Office

(312) 744-4418

DISTRICT 19 (TOWN HALL) NO LOCKUP (FORMERLY DISTRICT 23)

850 W. Addison

Desk Sergeant

(312) 744- 8320

Tactical Office

(312) 744-6207

DISTRICT 20 (FOSTER)
5400 N. Lincoln Ave.
Desk Sergeant

Tactical Office

(312) 742-8714

(312) 744-5386

DISTRICT 24 (ROGERS PARK) NO LOCKUP

6464 N. Clark
Desk Sergeant

(312) 744-5907

Tactical Office

(312) 744-2665

DISTRICT 25 (GRAND & CENTRAL)

5555 W. Grand Ave.
Desk Sergeant

Revised January 2014

(312) 746-8605

53

AREA CENTRAL (51 S T & WENTWORTH)

CENTRAL DETECTIVE DIVISION
5101 S. Wentworth
Violent Crimes

(312) 747-8380/8381

VCU Fax

(312) 747-6656

(312) 747-8385

Property

(312) 747-8384/8382

Special Victims Unit

DISTRICT 1 (CENTRAL)
1718 S. State St.
Desk Sergeant

(312) 745-4290

Tactical Office

(312) 747-4376

Central Detention

(312) 745-4460

DIST 2 (WENTWORTH)
5101 S. Wentworth
Desk Sergeant

(312) 747-8366

Tactical Office

(312) 747-5407

DISTRICT 3 (GRAND CROSSING)

7040 S. Cottage Grove Ave.
Desk Sergeant

(312) 747-8201

Tactical Office

(312) 747-5484

DIST 8 (CHICAGO LAWN)

3420 W. 63rd St.
Desk Sergeant

Revised January 2014

(312) 747-8730

54

DIST 9 (DEERING)
3120 S. Halsted

Desk Sergeant

NO L OCKUP

(312) 747-8227

DISTRICT 10 (MARQUETTE)
3315 W. Ogden Ave.

Desk Sergeant

(312) 747-7511

DISTRICT 12 (MONROE) NO LOCKUP

100 S. Racine Ave.
Desk Sergeant

Tactical Office

(312) 746-8396

(312) 746-8308/8306

DISTRICT 13 (WOOD) NO LOCKUP

937 N. Wood St
Desk Sergeant

(312) 746-8350/8357

Tactical Office

(312) 746-8356

DISTRICT 18 (NEAR NORTH)

1160 N Larrabee St
Desk Sergeant

(312) 742-5870

Tactical Office

(312) 742-5876

Revised January 2014

55

AREA SOUTH (111 T H & ELLIS)

SOUTH DETECTIVE DIVISON
727 E. 111 ST
Violent Crimes Unit

(312) 747-8271

VCU Fax

(312) 747-3128

(312) 747-8273

(312) 747-8276

Property Crimes

Special Victims Unit

DISTRICT 4 (SOUTH CHICAGO)

2255 E. 103rd St.
Desk Sergeant

(312) 747-8205/7581

DISTRICT 5 (PULLMAN)
727 E. 111th St.
Desk Sergeant

(312) 747-8210

DISTRICT 6 (GRESHAM)
7808 S. Halsted
Desk Sergeant

(312) 745-3610/3617

Tactical Office

(312) 745-3632

DIST 7 (ENGLEWOOD)
1438 W. 63rd St
Desk Sergeant

Tactical Office

(312) 747-8220

(312) 747-1294

DISTRICT 22 (MORGAN PARK)

1900 W. Monterey Ave.
Desk Sergeant

Revised January 2014

(312) 745-0570

56

CENTRAL BOOKING
(312) 745-5202
Central booking has a record of every individual who is arrested and charged within the city of
Chicago. This is a good way to verify whether your client has been charged and the location of the
station where he/she was booked. We are told that 2 identifiers are needed before CB will release
information, i.e. Name and D.O.B. We are also told that it takes 2 to 4 hours before information is
posted on the CB computer. Record the operator number as you contact person.

CENTRAL DETENTION
(312) 745-4460
Located in District 1, clients are often transported and held there if they are arrested on a warrant.

THE JUVENILE INTERVENTION AND SUPPORT CENTER (J.I.S.C.)

(312) 747-3934

SPECIAL UNITS
Organized Crime Unit 24-Hour Desk

(312) 746-7510

Administrative Office Gang & Narcotics

(312) 746-7575

Bomb & Arson Unit

(312) 746-7610

CAGE (Chicago Area Gun Enforcement)

(312) 746-7628

Financial Crimes

(312) 746-9661

Prostitution

(312) 746-7882

(312) 746-7150

Special Operations

Vice Control

(312) 746-7887

These units are located at 3340 W. Fillmore. Take 290 to the Homan Ave. exit, make left on Homan,
and take it to Fillmore St. The facility is in a large warehouse located on the NE corner of Homan
and Fillmore. Make a right on Fillmore and park on the street to the WEST of Homan. Check in at the
guard booth on Fillmore a half-block EAST of Homan.

Revised January 2014

57

CHICAGO POLICE HEADQUARTERS

3510 S. Michigan Ave.

(312) 745-6800 or (312) 746-6000

If you are having problems at a police Station (i.e., they wont let you see the client), call this
number, ask for the superintendents office, and then ask to speak to the Deputy Director. The
Deputy Director must investigate every complaint. Also, call IPRA .
Records

(312) 745-5128

Internal Affairs

(312) 745-6125

Missing Persons

(312) 745-6025

Organized Crime

(312) 745-6085

Superintendent

(312) 745-6100

Youth Division

(312) 745-6004

Asst. Deputy Directors Office

(312) 745-6300

Damage Claims Dept.

(312) 744-6870

(312) 747-8852

City Vehicle Impound

COOK COUNTY SHERIFF

Cook County Sheriffs Police Lockup

(708) 865-4700

Located at 1401 S. Maybrook Drive, Maywood, Illinois 60153. People arrested by the Sheriffs Police
may be held here. We do not make visits here, as it is not CPD, but you can inform the caller.

COOK COUNTY JAIL 26TH AND CALIFORNIA

2650 S. California
General Information

(773) 674-5245 (automated help line)

(773) 674-7100 (main telephone number)

Inmate Information

(773) 674-5201

It may take up to 48 hours for the Sheriff to post prisoner information. If no information available,
call the Cook County Jail Records Dept. at (773) 674-5201 to get the inmates id number, next court
date, type of charge and bond amount. Inmate information is also available at
http://www2.cookcountysheriff.org/search2/.

Revised January 2014

58

COOK COUNTY SHERIFF MEDICAL UNIT

For clients being guarded by the Cook Co. Sheriff at local hospitals, call the General Information
number and ask for the Medical Unit.
Families can obtain a visitors pass by contacting this unit. Treating doctors and nurses should
provide information on medical condition to family, even if they are not allowed to visit the inmate.
(If client is guarded by Chicago Police, contact the officers district for information on charge or
status of investigation)

JUVENILE TEMPORARY DETENTION CENTER (J.T.D.C.) (AKA AUDY HOME)

1100 S. Hamilton

(312) 738-8200

Night

(312) 433-7102

Court Liaison

(312) 433-6650

Police

(312) 433-7165

Day

Revised January 2014

59

COURT INFORMATION
HABEAS CORPUS PETITIONS
Chief Judge Paul Biebel, 26th & California
Phone

773-869-3160

Fax

773-869-3093

COOK COUNTY STATES ATTORNEYS OFFICE

Felony - 26th & California

773-869-6243

Juvenile 11th & Hamilton

312-443-7025

Felony Review Unit

773-869-3020

Felony Review Fax

773-869-3730

773-674-7200

Victim Witness Assistance Unit

COOK COUNTY PUBLIC DEFENDERS OFFICE

General Information - 69 W. Washington 312-603-0600
Felony - 26th & California

773-869-3217

Murder Task Force 26th and California

773-674-6989

Juvenile 11th & Hamilton

312-433-7046

Post Conviction

312-603-8300

Revised January 2014

60

DIRECTIONS TO CHICAGO POLICE STATIONS

AREA NORTH
NORTH DETECTIVES & DISTRICT 19 LOCKUP: 2452 W. BELMONT AVE.
You can get to this facility a couple of ways. (1) 90/94 to Belmont. Go east. (2) You can also take
Lake Shore Drive to Belmont and go west. The station is on the northwest corner of Belmont and
Western. You can park in the lot east of the building.

DISTRICT 11: 3151 W. HARRISON

290 to Homan, south on Homan to Harrison, left onto Harrison, Harrison to Kedzie. The police
station is on the southeast corner of Harrison & Kedzie.

DISTRICT 14: 2150 N. CALIFORNIA

Take 90/94 north to Fullerton. West on Fullerton to California, south on California to the station.
The police station is on the west side of the street.

DISTRICT 15: 5701 W. MADISON ST.

Take 290 to Central Ave., north on Central Ave. to Madison, left (west) onto Madison St. The police
station is on the south side of the street, on the corner of Waller and Madison.

DISTRICT 16: 5151 N. MILWAUKEE AVE.

94 to 190, exit at Central Ave. North on Central Ave to Northwest Highway, right on Northwest
Highway to Milwaukee, right on Milwaukee. The police station is on the east side of the street. You
can also take Milwaukee all the way north to the station.

DISTRICT 17: 4650 N. PULASKI RD.

Take 90/94 to Pulaski Road exit, north on Pulaski. The police station is on the west side of the
street, on the corner of Eastwood and Pulaski.

DISTRICT 19 (FORMERLY 23): 850 W. ADDISON

The police station is just west of Halsted on Addison. Lake Shore to Belmont, west on Belmont to
Halsted, north on Halsted to Addison and make a left. The police station is on the north side of the
intersection, half a block or so from Halsted. There is parking in the parking garage just east of the
station.

Revised January 2014

61

DISTRICT 20: 5400 N. LINCOLN AVE.

Do NOT take 90/94.Take either Lake Shore Drive or Ashland Ave. to Foster Ave. Head west on
Foster. Turn right on Lincoln Avenue. The police station is on the corner of Lincoln and Balmoral.

DISTRICT 24: 6464 N. CLARK

Lake Shore Drive north to Hollywood to Ridge. Slight right to Clark from Ridge. The police station is
on the west side of the street. There is a big parking lot in back and then just walk around to the
front entrance.

DISTRICT 25: 5555 W. GRAND

Located at Grand & Central. You can get here from 290 by taking the Homan, Cicero or Laramie
exits & heading north to Grand. Take Grand northwest to Central Avenue. The police station is on
the south side of the street under the bridge. During the day, you should park in the lot across the
street from the station, accessible by heading north on Central and making a right. At night, you can
park in the lot in front of the station.

AREA CENTRAL
CENTRAL DETECTIVES & DISTRICT 2: 5101 S. WENTWORTH
Take 90/94 to the Garfield Blvd. (55th St.) exit. From the north, make a left on Garfield and a left on
Wentworth. From the south, exit at Garfield onto Wentworth and stay straight on Wentworth. The
police station is on the southeast corner of 51st and Wentworth. You can park in the parking lot or
on the street before you get to 51st. You will not get ticketed or towed even though there are signs.

DISTRICT 1: 1718 S. STATE ST.

Take State St. south from the Loop. The police station is on the west side of the street. Park on the
street.

DISTRICT 3: 7040 S. COTTAGE GROVE AVE.

Take Lake Shore Drive to 71st, and 71st west to Cottage Grove. The police station is on the west
side of the street.

DISTRICT 8: (CHICAGO LAWN): 3420 W. 63RD ST.

Take 90/94 to 63rd St. Go west onto 63rd. until you pass Kedzie Ave. The police station is on the
north side of the street, on the corner of Homan and 63rd.

Revised January 2014

62

DISTRICT 9: 3120 S. HALSTED

Take 90/94 to 31st St., right on 31st, left onto Halsted. The station is on the right.

DISTRICT 10: 3315 W. OGDEN AVE.

Take 290 and exit Kedzie. Go south on Kedzie. Turn right on Ogden Avenue. The police station is
on the corner of Ogden and Spaulding.

DISTRICT 12: 100 S. RACINE

Located at the corner of Monroe and Racine, this police station is in the West Loop. Take either
90/94 or Lake Shore Drive to Monroe St. Go west on Monroe to Racine. Park on the street.

DISTRICT 13: 937 N. WOOD ST

Take 90/94 to Division or take Ashland to Division. West on Division to Wood, left (south) onto
Wood. The police station is on the east side of the street, on the corner of Walton and Wood. Park
on the street.

DISTRICT 18: 1160 N LARRABEE ST

Lake Shore Drive to Division, west on Division to Larrabee, left on Larrabee. Or, 90/94 to Division,
east on Division to Larrabee, right on Larrabee. The police station is on the southwest corner of
Division and Larrabee. You can park in the lot south of the station.

AREA SOUTH
SOUTH DETECTIVES & DISTRICT 5: 727 E. 111TH ST.
Take 90/94 to 94, exit at 111th St, and turn right onto 111th. You will go through one traffic light
and the police station will be on the left (south) side of the street. When parking, park in the front
parking lot or in the front on the street.

DISTRICT 4: 2255 E. 103RD ST.

Take 90/94 to 94. Exit at Stony Island Avenue towards 95th/103rd St. Turn left on 103rd St. The
police station is on the South side of the street.

DISTRICT 6: 7808 S. HALSTED

Take 90/94 to 79th St. west. Right (north) onto Halsted. The station is on the west side of the street.

Revised January 2014

63

DISTRICT 7: 1438 W. 63RD ST.

Take 90/94 to the 63rd St. exit. Go west on 63rd to Bishop (past Racine). The police station is on the
north side of the street.

DISTRICT 22: 1900 W. MONTEREY AVE.

Take 90/94 to 94 to I-57, exit at 111th St. Right on 111th to Vincennes, left onto Vincennes,
Vincennes to Monterey, right onto Monterey, on the corner of Monterey and Esmond.

Revised January 2014

64

WHAT IF I DONT SPEAK SPANISH?

If you receive a call to represent a client who does not speak English, ask the answering service to
contact an interpreter. The interpreters are available to meet you at the police station or to
interpret over the telephone.

SPANISH PHRASES FOR FDLA ATTORNEYS

I am your attorney. My name is _________. The name of my organization is First Defense Legal Aid
(Ayuda Legal de Primera Defensa).
Yo soy tu abogado. Mi nombre es ______. El nombre de mi organizacin es Ayuda Legal de Primera
Defensa (First Defense Legal Aid).

Your family retained me to represent you while you are in police custody.
Tu familia me contrat para representarte en la estacin de polica.

I do not speak Spanish but the interpreter is on the way to the police station.
Yo no hablo espaol pero el intrprete est de camino y va a venir a la estacin de polica.

It is very important that you do not answer any questions from police officers, detectives, Assistant
States Attorneys or anyone else who works for the police department.
Es muy importante que no contestes ninguna pregunta que haga ningn polica, detective, Asistente
al Fiscal o ningn otro empleado de la polica.

You should not sign anything or submit to a lie detector test.
Tampoco debes firmar nada ni someterte a una prueba de detector de mentira.

This is a Notice of Representation and Declaration of Rights; it explains your rights while in police
custody and tells the police that youre represented by First Defense Legal Aid. Please read & sign it.
Este Aviso de Representacin y Declaracin de Derechos explica tus derechos mientras ests bajo
arresto y le dice a la polica que ests representado por First Defense Legal Aid. Por favor lalo y
frmelo.

Revised January 2014

65

IF THE CLIENT HAS BEEN CHARGED

You have been charged with _______________, a misdemeanor. Being charged does not mean you are
guilty of anything.
Usted ha sido formalmente acusado de _______________, un delito menor. Ser acusado formalmente no
quiere decir que usted ha sido hallado culpable de nada.

You have been charged with _______________, a felony. Being charged does not mean you are guilty of
anything.
Usted a sido formalmente acusado de _______________. Ese es un delito mayor. Ser acusado
formalmente no quiere decir que usted ha sido hallado culpable de nada.

You will be released from the station (after posting bond) and given a date to appear in court.
Usted ser liberado de la estacin (despus de pagar fianza) y le darn una fecha para aparecer en
corte.

You will be taken to 26th and California, the county jail & court. Tomorrow, you will go to bond
court where a judge will determine your bond and you will be assigned a court date for your case.
Usted ser llevado a la veintisis (26) y California, la crcel y corte del condado. Maana ira a corte
donde un juez decidir cuanta fianza tiene que pagar y le asignar una fecha de corte para su caso.

First Defense Legal Aid (Ayuda Legal de Primera Defensa) only provides representation at the
police station. You will need a different lawyer for court.
Ayuda Legal de Primera Defensa (First Defense Legal Aid) solo provee representacin en la estacin
de polica. Usted necesitar un abogado diferente para corte.

You can be assigned a public defender for free or you can hire a private attorney to represent you.
Usted puede ser asignado un defensor pblico que lo represente gratuitamente, o usted puede
contratar un abogado privado.

Revised January 2014

66

SPANISH TRANSLATION OF COMMON CRIMINAL CHARGES

If it is an aggravated charge, add Agravado after the name of the offense. For example, Aggravated
Battery is Agresin Agravada.
Arson

Incendio Premeditado

Assault

Asalto

Attempted Murder

Asesinato Atentado

Battery

Agresin

Child Abandonment

Abandonamiento de Menor

Child Pornography

Pornografa de Menores

Criminal Sexual Abuse

Abuso Sexual Criminal

Criminal Sexual Assault

Asalto Sexual Criminal

Criminal Trespass

Intrusin o Entrada Criminal

Criminal Damage to Property

Dao Criminal a Propiedad

Disorderly Conduct

Conducta Desordenada

Domestic Violence

Violencia Domestica

Driving under the Influence

Manejando Bajo la Influencia del Alcohol o

Drogas

Driving without a License

Manejando sin Licencia

Forgery

Falsificacin

Fraud

Fraude

Home Invasion

Invasin de Hogar

Impersonating a Police Officer

Personificar a un Oficial

Kidnapping

Secuestro

Manslaughter

Homicidio Involuntario

Murder/First Degree/Second Degree

Revised January 2014

Asesinato / de Primer Grado / de Segundo

Grado

67

Obstructing Justice

Obstruir la Justicia

Possession of Cannabis

Posesin de Marihuana

Possession with Intent to Deliver Cannabis

Distribuirlas

Posesin de Marihuana con Propsito de

Possession of a Controlled Substance

Posesin de Drogas

Possession w/ Intent to Deliver C.S.

Prostitution

Posesin de Drogas con Propsito de

Distribuirlas

Prostitucin

Residential Burglary

Robo Residencial

Resisting or Obstructing a Peace Officer

Resistir o Obstruir a un Oficial

Retail Theft

Robo de un Negocio

Robbery/Armed Robbery

Robo / Robo a Mano Armada

Shoplifting

Robo en una Tienda

Soliciting a Prostitute

Solicitar a una Prostituta

Stalking

Theft

Robo

Cautiverio Ilegal

Uso Ilegal de un Arma de Fuego

Violacin de una Orden Protectiva

Unlawful Restraint

Unlawful Use of Weapons

Violation of Order of Protection

Revised January 2014

Revised January 2014

Dead or in Prison: Indigenous Resistance to Resource Extraction

The workshop will cover the broader aspects, i.e. the threat and impact of the Keystone
Pipeline (Downstream indigenous peoples in Canada, Contribution to climate change, etc.)
the renewed massive Uranium, Sulfide, and Taconite Mining Development (Uranium:
South Dakota, New Mexico, Grand Canyon. Taconite: Northern Wisconsin) with the
Environmental Human Rights, and the Indigenous Peoples' Rights Committee. The
workshop will cover the mass opposition to the Pipeline (the Cowboy and Indian Alliance,
Idle No More, Indigenous Environmental Network, direct action in Nebraska, South
Dakota, Oklahoma, Texas, and elsewhere) and Uranium and Taconite Mining (Uranium:
Navajo Nation, Keep the ban coalition, Coal River Mountain Watch, Uranium Watch,
Intergovernmental Plan on Climate Change. Taconite: Lac Courte Oreilles Chippeaw band,
Madison for the Penokees). The workshop will discuss the large number of arrests and
building confrontation by the progressive indigenous and environmental communities with
the US government. The workshop would then talk about the mass arrests and a need for
organized representation and support of demonstrators with a special focus over the next
year if the Keystone line, the Uranium mining project in Western South Dakota, or the
taconite-mining project in Wisconsin. The panel will end with a general discussion of how
we can support, represent, and stand in solidarity with those opposing various resource
extraction projects around the country.
Presenters:
Bruce Ellison is a criminal defense attorney based in Rapid City, S.D. for nearly 40 years,
specializing in major felony and habeas cases in various tribal, state, and federal courts
through much of the United States. He has been a NLG member since a freshman law
student at Hofstra Law School in 1972. Through workshops sponsored by the American
Indian Movement and the Wounded Knee Defense Committee, Bruce became a pro bono
staff attorney with the Wounded Knee Legal Defense Committee, representing AIM
members in various jurisdictions due to the FBI's use of state and federal criminal justice
systems as part of its domestic security operations to destroy the movement. Subsequent
pro bono work, for purposes of this workshop, has included religious freedom and other
actions attempting to protect sacred sites and worship through efforts to stop forced
relocation of Dine from their ancestral homes on and around Big Mountain for coal and
uranium, to prevent removal of the Lakota spiritual/educational community on "Forest
Service" land in the Black Hill Hills, to terminate use of Lakota children for medical
experimentation of a vaccine by the BIA and Smith-Cline Beechem, to protect Lakota
cultural and water resources from destruction by foreign uranium mining companies and
the KXL pipeline.
Andrea Carmen, Yaqui Indian Nation, has been a staff member of the International Indian
Treaty Council (IITC) since 1983 and IITCs Executive Director since 1992. In 1977, IITC
was the first Indigenous organization to receive Consultative Status from the UN Economic
and Social Council and in 2011 was the first to be upgraded to General Consultative
Status. Andrea has many years' experience working with Indigenous communities from
North, Central, South America and the Pacific. She was a founding member of the
Indigenous Initiative for Peace and participated as a human rights observer and mediator in
crises situations in the US, Mexico, Canada, New Zealand and Ecuador. In 1997, she was

one of two Indigenous representatives to formally address the UN General Assembly for
the first time in history at the UN Earth Summit +5. Andrea has served as an advisor, board
member and/or Steering Committee member for the World Council of Churches, the North
American Indigenous Peoples Bio-Diversity project, the First Nations Development/Eagle
Staff Fund Native Food Systems Initiative, the US Human Rights Network US UPR Project,
and First Peoples World Wide. Andrea was founding co-coordinator for the Chickaloon
Village Tribal Environmental Program, and served on the Indigenous Environmental
Network National Council and the Calvert Group Social Investment Advisory Council. She
a member of the Social Investment Forum's Indigenous Peoples Working Group and a
board member of First Peoples Worldwide. Andrea has conducted over 100 trainings and
presentations for Indigenous communities and Peoples, UN bodies, academic institutions
and NGOs. From 2006 2009 Andrea served as the North America region Caucus cocoordinator, and was one of two North American members of the Global Indigenous
Peoples Steering Committee for work on the adoption of the UN Declaration on the Rights
of Indigenous Peoples.
Debra White Plume was born and raised on the Pine Ridge Indian Reservation in
southwestern South Dakota. Debra has been involved in Lakota cultural preservation and
revitalization work her entire adult life, including work to protect Treaty Rights and Human
Rights. She has been an active community organizer around such issues for 40 years, from
the grassroots level to the United Nations, where she participated in the drafting of the
Declaration on the Rights of Indigenous Peoples and the Permanent Forum for Indigenous
Peoples and Issues. She is lead plaintiff against uranium mining giant Cameconear near the
border of the Pine Ridge. She has organized to preserve water rights to raise public and
poliical awareness of the threat posed by the Keystone XL oil pipeline to the drinking water
of the Oglala Lakota Nation. She lives along the banks of Wounded Knee Creek with Alex,
her husband of 30 years, where they raise horses and provide stewardship to the small
buffalo herd kept for spiritual and cultural purposes. Debra earned undergraduate degrees
from the Oglala Lakota College on the Pine Ridge Reservation.
Philomena Kebec currently serves as the Staff Attorney for the Bad River Band of Lake
Superior Chippewa, where she prosecutes child welfare cases and handles land and
natural resource protection matters for the Tribe. She is involved in the resistance against
open-pit iron mining in Wisconsin's Penokee Hills. She also works with community
members to create initiatives for community-wide environmental education and grassroots
responses to environmental threats. As an attorney, she has also worked for the Indian Law
Resource Center and with the Honorable Kathleen Mottl, Tenth Judicial District Court
Judge in Wright County Minnesota.

7/27/2014

Governments Crushing Their Own

Governments Crushing Their Own

Monday, 05 May 2014 10:19

By Catherine Wilson, Inter Press Service | Report

SYDNEY (IPS) - The global spectre of state violence against political dissent, with paramilitary law enforcement
units advancing against citizens they are employed to protect in cities such as Cairo, Bangkok and Kiev is daily
news. But in some developing countries, the police are being used to put down indigenous opposition to the alliance
of state and corporate power over resource extraction.
Indigenous peoples around the world confront dispossession for the extractive industry. When formal avenues to
resolve grievances with authorities fail, activism is often met with disproportionate force, unlawful detention and the
criminalisation of protest leaders. And perpetrators of state violence invariably enjoy impunity.
Protest is frequently the last resort of those with the least socio-political influence.
Mandeep Tiwana of the CIVICUS World Alliance for Citizen Participation based in Johannesburg, tells IPS that the
ultimate casualty is peoples faith in representative government.
Failure by the state to hold security forces and other powerful state and non-state entities to account for
infringement of democratic freedoms and the right to express legitimate dissent undermines democracy severely, he
says.
The police shooting of 34 striking miners at the Britain-headquartered Lonmins platinum mine in Marikana in
South Africa in 2012 is seen by many as a watershed moment in contemporary state and corporate brutality.
The same year government forces in Panama deployed rubber bullets and tear gas against Ngabe-Bugle people
demonstrating against copper mining on their land, resulting in three deaths.
The police confronted communities rallying in May 2012 against environmental damage and lack of benefits from
the Tintaya copper mine in Espinar Province, Peru, owned by Swiss company Xstrata, with two fatalities. Workers
Day on May 1 is a reminder of the oppression indigenous people and workers still face around the world.
In the Pacific region, mineral and gas extraction dominated by multinationals has long been protected by mobile
police squads. Such action has come often in Papua New Guinea (PNG), where 28 percent of people live below the
poverty line.
In recent years, police have been responsible for violent community evictions near the Porgera gold mine in Enga
Province, majority owned by Canadian company Barrick Gold, and the fatal killing of a worker who expressed
opposition to the PNG LNG (Liquified Natural Gas) project in the highlands.
South Africa, says David van Wyk of the Bench Marks Foundation, has seen increasing strikes and service delivery
protests, many in mine impacted communities. When authorities fail to address grievances, the issues are left to the
police, which has led to increased police brutality, he tells IPS.
State violence reflects the critical role of natural resources in national, geopolitical and military power. Many
nations including PNG, Guatemala and Nigeria claim state right to subsoil minerals, which can undermine
customary land and indigenous peoples rights.
http://www.truth-out.org/news/item/23496-governments-crushing-their-own?tmpl=component&print=1

1/3

7/27/2014

Governments Crushing Their Own

But in suppressing local opposition, developing nations also act in the neo-liberal interests of multinationals and
foreign stakeholders. At Marikana, state violence in the name of security allowed Lonmin to remain removed from
direct responsibility for human rights abuses.
In Nigeria 50 years of oil exploitation in the Niger Delta by companies, including Shell and Chevron Texaco, in
alliance with the state has enriched foreign and local elites. Government oil revenues are in excess of 350 billion
dollars while 69 percent of the local Ogoni and Ijaw people live in poverty.
Massive resource rents to the Nigerian state have ensured resourcing of the Joint Military Task Force committed to
guarding oil installations and quashing communities angered at marginalisation.
In PNG, mobile police squads have received funding for decades from the Australian government, which has stakes
in extractive projects such as the Exxon Mobil joint venture, PNG LNG.
Dr Kristian Lasslett of the International State Crime Initiative, based at Kings College London, says unified local
opposition poses a threat to the state-corporate alliance in PNG.
It would dry up the opportunity structure exploited by a swathe of foreign investors who ignore national laws and
local custom, and come as a shock to national businessmen who have proven effective in illegal land grabs and
corrupt resource transactions.
Barrick Gold and Esso Highlands have agreements to provide support to police units in the form of vehicles,
accommodation, food and fuel. Clauses indicating that support is conditional on state agencies complying with
international standards of conduct are rarely enforced.
Companies adopt a hear no evil and see no evil policy when it comes to state violence, says Lasslett.
The post-9/11 era has also seen increased use of anti-terrorism measures to deal with grievances. The Guatemalan
government used the threat of terrorism to declare a state of siege in May last year following demonstrations
against the Escobal silver mine in the nations southeast. This paved the way for suspending civil liberties and
introducing martial law.
Justice for the marginalised is a massive challenge in an era of rising illegitimate power, as described in this years
State of Power report from the Transnational Institute (TNI). It claims that pervasive corporate influence over
governments is a factor in the demise of accountability to the governed, even in democratic nations.
Corporations, through trade and investment agreements, lobbying and corporate capture of political institutions
have also weaved a web of impunity that protects their profits and accountability for human rights and
environmental abuses, TNI researcher Lyda Fernanda tells IPS.
Many states, where oppression occurs, fail to observe international codes of police conduct or their duty to protect
citizens human rights. Tiwana says international law needs to be supported by national legislation, aided by
autonomous human rights and police accountability commissions.
The law favours those with large reserves of money and those who have the capacity and connections to buttress
their claims with forms of evidence that courts accept, says Lasslett. This is not to say communities cant win in
the courts, but it is not a terrain on which they hold the advantage.
He believes that when impunity is supported by corruption and inadequate police complaints procedures, powerful
social movements may be the most effective way to defend rights.
http://www.truth-out.org/news/item/23496-governments-crushing-their-own?tmpl=component&print=1

2/3

7/27/2014

Governments Crushing Their Own

The greatest weapon they [indigenous peoples] have is their own history, culture and customary bonds.
Visit IPS news for fresh perspectives on development and globalization.

Related Stories
Australia's Election Campaign Driven by Barbarism That Dares Not Speak its Name
By John Pilger, Truthout | Op-Ed

Australia Has $16 Minimum Wage and Is the Only Rich Country to Dodge the Global
Recession
By Jaisal Noor, The Real News Network | Video Report

Australia Is Again Stealing Its Indigenous Children

By John Pilger, Truthout | News Analysis

Show Comments

http://www.truth-out.org/news/item/23496-governments-crushing-their-own?tmpl=component&print=1

3/3

7/27/2014

The Politics of Pachamama: Natural Resource Extraction vs. Indigenous Rights and the Environment in Latin America

The Politics of Pachamama: Natural

Resource Extraction vs. Indigenous
Rights and the Environment in Latin
America
Tuesday, 29 April 2014 09:34

By Benjamin Dangl, Upside Down World | News Analysis

Potosi mines, Bolivia. (Photo: Boris G / Flickr)

When I sat down to an early morning interview with Evo Morales over a decade ago in Cochabamba, Bolivia, the
then-coca farmer leader and dissident congressman was drinking fresh-squeezed orange juice and ignoring the
constant rings of the landline phone at his unions office. Just a few weeks before our meeting, a nation-wide social
movement demanded that Bolivias natural gas reserves be put under s tate control. How the wealth underground
could benefit the poor majority above ground was on everybodys mind.
As far as his political ambitions were concerned in terms of Bolivian natural gas, Morales wanted natural resources
to construct a political instrument of liberation and unity for Latin America. He was widely considered a popular
contender for the presidency, and was clear that the indigenous politics he sought to mobilize as a leader were tied to
a vision of Bolivia recovering its natural wealth for national development. We, the indigenous people, after 500
years of resistance, are retaking power. This retaking of power is oriented towards the recovery of our own riches,
http://www.truth-out.org/news/item/23377-the-politics-of-pachamama-natural-resource-extraction-vs-indigenous-rights-and-the-environment-in-latin-america?tm

1/5

7/27/2014

The Politics of Pachamama: Natural Resource Extraction vs. Indigenous Rights and the Environment in Latin America

our own natural resources. That was in 2003. Two years later he was elected Bolivias first indigenous president.
Fast forward to March of this year. It was a sunny Saturday morning in downtown La Paz, and street vendors were
putting up their stalls for the day alongside a rock band that was organizing a small concert in a pedestrian
walkway. I was meeting with Mama Nilda Rojas, a leader of the dissident indigenous group CONAMAQ, a
confederation of Aymara and Quechua communities in the country. Rojas, along with her colleagues and family,
had been persecuted by the Morales government in part for their activism against extractive industries. The
indigenous territories are in resistance, she explained, because the open veins of Latin America are still bleeding,
still covering the earth with blood. This blood is being taken away by all the extractive industries.
While Morales saw the wealth underground as a tool for liberation, Rojas saw the president as someone who was
pressing forward with extractive industries in mining, oil and gas operations without concern for the
environmental destruction and displacement of rural communities they left in their wake.
How could Morales and Rojas be so at odds? Part of the answer lies in the wider conflicts between the politics of
extractivism among countries led by leftist governments in Latin America, and the politics of Pachamama (Mother
Earth), and how indigenous movements have resisted extractivism in defense of their rights, land and the
environment.
Since the early 2000s a wave of leftist presidents were elected in Latin America on platforms that included using the
regions vast natural resource wealth to fund social programs, expand access to healthcare and education,
redistribute wealth, empower workers, fight poverty, and build national economic sovereignty.
Within this shift, the state, rather than the private sphere, has taken up a greater role in extraction to benefit wider
society, rather than to simply fill the pockets of a few CEOs of multinational corporations, as had been the norm
under neoliberal governments. The environmental and social costs of extraction are still present, but with a different
economic vision. Extractive activities and the export of raw materials continue as before, but are now justified with
a progressive discourse, explains Puerto Rican environmental journalist Carmelo Ruiz-Marrero.
While many economies and citizens have benefitted from the states larger involvement in the extraction of these
resources, extractivism under progressive governments, as it had under neoliberalism, still displaces rural
communities, poisons water sources, kills the soil, and undermines indigenous territorial autonomy. As Argentine
sociologist Maristella Svampa writes, Latin American progressivisms practice and policies ultimately correspond
to a conventional and hegemonic idea of development based on the idea of infinite progress and supposedly
inexhaustible natural resources. Buoyed by the progressive discourse and mandate of the Latin American left, this
extractive trend has produced alarming results across the region.
Following Argentinas 2001-2002 crisis, the Nestor and Cristina Kirchner presidencies have worked successfully to
rehabilitate Argentinas economy, empower workers, and apply progressive economic policy to make the country
more sovereign; following years of neoliberalism, where public services and state-owned enterprises were privatized,
the Kirchners have put various industries under state control, and used new government revenues to fund social
programs and make the country less beholden to international lenders and corporations.
As a part of this shift, in 2012, the Argentine state obtained 51% control of the hydrocarbon company YPF, which
was privatized in the 1990s. Last year, however, Argentinas YPF signed a deal with Chevron to expand natural gas
fracking in the country, operations set to proceed on Mapuche indigenous territory. In response, indigenous
communities to be affected by the fracking took over four YPF oil rigs. Its not just the land they are taking, Lautaro
Nahuel, of the Mapuche Confederation of Neuqun, explained to Earth Island Journal. All the natural life in this
region is interconnected. Here, theyll affect the Neuqun River, which is the river we drink out of. Protests against
YPF-Chevron fracking plans are ongoing in the country.
http://www.truth-out.org/news/item/23377-the-politics-of-pachamama-natural-resource-extraction-vs-indigenous-rights-and-the-environment-in-latin-america?tm

2/5

7/27/2014

The Politics of Pachamama: Natural Resource Extraction vs. Indigenous Rights and the Environment in Latin America

Uruguayan President Jos "Pepe" Mujica, who has garnered international attention recently for his governments
legalization of marijuana, abortion and same sex marriage, and his offer to host released Guantanamo detainees, is
moving forward with a deal with Anglo-Swiss mining group Zamin Ferrous for a major open-pit mining operation
that would involve the extraction of 18 million tons of iron ore from the country over the next 12-15 years. Aside from
the mining operation itself, the plan includes the construction of pipelines to ship the ore inland to the countrys
Atlantic coast. Critics have pointed out that the plan would wreak havoc on the regions biodiversity and displace
local farmers. In response to the plans, a national movement is currently underway to organize a referendum to ban
open pit mining in Uruguay.
While Brazils President Luiz Lula da Silva and his successor Dilma Rousseff, both of the Workers Party, have
helped expand the middle class in the country, and initiated successful social programs aimed at eliminating poverty
and hunger, their administrations have also presided over vast economy of extractivism that leaves no place for
small farmers or environmental concerns. Brazil is h ome the largest mining industry in the region: in 2011 it
extracted more than twice the amount of minerals than all other South American nations combined, and is the
worlds largest producer of soy, a GMO crop rapidly expanding across the continent with a mixture of deadly
pesticides that are killing the soil, poisoning water sources, and pushing small farmers out of the countryside and
into Latin Americas urban slums.
Ecuadorian President Rafael Correa has famously championed the environment in his country, aiding with the
passage of a 2008 constitution that gave rights to nature, and beginning an initiative in 2007 to keep the oil in
Ecuadors Yasun National Park in the ground. In exchange for not drilling the oil in this area rich in biodiversity,
the plan called for international donors to contribute $3.6 billion (half of the oils value) to the UNs Development
Program for global programs in healthcare, education and other areas. Last August, with only $13 million donated,
and $116 million more pledged, Correa announced that the initiative had failed, and that oil extraction would
proceed in Yasun. In a televised address, the president said, The world has failed us.
Yet while Correa rightfully spoke of the obligations of wealthier nations to contribute to solving the dilemmas of the
global climate crisis, at home he expanded the mining industry and criminalized indigenous movements who
protested extractive industries in their territories. Under his administration, numerous indigenous leaders
organizing against mining, water privatization measures, and hydrocarbon extraction have been jailed for their
activism.
Criminalization of indigenous activists fighting against mining in Peru has also become the norm for this mineral-
rich nation. Under the presidency of Ollanta Humala, mining has boomed, and with it so have conflicts where local
communities are fighting to defend land and water rights.
In Bolivia, President Evo Morales has spoken widely of respecting Pachamama, fighting against the worlds climate
crisis, and utilizing indigenous philosophies such as Buen Vivir (Living Well) for living in harmony with the earth.
His government has enacted progressive policies in terms of creating more governmental revenue through the state
management of natural resource extraction, and using that revenue for wage increases, national social programs in
healthcare, pensions, education and infrastructure development. The Morales administration and his party, the
Movement Toward Socialism (MAS), has also pressed forward with constitutional changes and laws that protect the
environment, empower indigenous communities, and make access to basic utilities and resources a right. Yet the
rhetoric and promise of many of these changes contradict the way MAS policies have played out on the ground.
The government has advocated for a plan to build a major highway through the TIPNIS indigenous territory and
national park. Protests against the government plans galvanized a movement for indigenous rights and
environmentalism. In response, the government led brutal repression against families marching in protest of the
highway in 2011. Government violence left 70 wounded; victims and their families and allies are still searching for
http://www.truth-out.org/news/item/23377-the-politics-of-pachamama-natural-resource-extraction-vs-indigenous-rights-and-the-environment-in-latin-america?tm

3/5

7/27/2014

The Politics of Pachamama: Natural Resource Extraction vs. Indigenous Rights and the Environment in Latin America

justice.
Most recently, the MAS promise of respecting Mother Earth and indigenous and small farmer rights clashed against
another of its plans; the Mining Law, which was passed by the MAS-controlled congress in late March, and was on
its way to the Senate, when protests against the law forced the government to suspend its passage pending more
input from critics. While private cooperativist mining groups, notorious for their lack of concern for the environment
and local communities impacted by mining, protested the law because it did not grant them to the right to sell their
resources to foreign and private entities without sufficient government oversight, other groups with different
demands have put forth their critiques. Separate from the cooperativist miners, these farmer and indigenous
movement critics are more concerned with issues such as water access and the right to protest.
The Mining Law gives the mining industry the right to use public water for its water-intensive and toxic operation,
while disregarding the rights of rural and farming communities to that same water. Furthermore, the law
criminalizes protest against mining operations, leaving those communities that would bear the brunt of the
industrys pollution and displacement without any legal recourse to defend their homes. In response to the law, a
number of indigenous and small farmer organizations have taken to the streets in protest.
I spoke with CONAMAQ indigenous leader Mama Nilda Rojas about her view of the Mining Law. The Morales
government has told us that it will govern by listening to the bases,' and that 'the laws will come from the bottom-
up. But this is not what happened with the Mining Law, Rojas said, which was created without sufficient input
from representatives of communities impacted the most by mining. This is a law which criminalizes the right to
protest. With this law we wont be able to build road blockades, we wont be able to march [against mining
operations], she explained. Were well a ware that it was the same Evo Morales who would participate in marches
and road blockades [years ago]. And so how is it that he is taking away this right to protest?
This government has given a false discourse on an international level, defending Pachamama, defending Mother
Earth, Rojas explained, while the reality in Bolivia is quite a different story.
Meanwhile, outside of Latin America, governments, activists, and social movements are looking to places like
Bolivia and Ecuador as examples for overcoming capitalism and tackling climate change. The model of Yasun, and
respecting the rights of nature can and should have an impact outside of these countries, and wealthier nations and
their consumers and industries based in the global north need to step up to the plate in terms of taking on the
challenges of the climate crisis.
In many ways, much of Latin Americas left are major improvements from their neoliberal predecessors, and have
helped forge an exciting path toward alternatives that have served as inspirations across the world. Overall, they
have brought countries out of the shadow of the International Monetary Fund and US-backed dictatorships, and
toward a position of self-determination. For the sake of these new directions, the neoliberal right hopefully will not
regain power in the region any time soon, and Washington will be unable to further meddle in an increasingly
independent Latin America.
Yet as the march toward progress continues in its many forms, and election years come and go, the losers of Latin
Americas new left are often the same as before the dispossessed rural communities and indigenous movements
that helped pave the way to these presidents elections in the first place. In the name of progress, Mother Earth, Buen
Vivir, and 21st century socialism, these governments are helping to poison rivers and the land, and displace, jail and
kill anti-extraction activists. Solidarity that is blind to this contradiction can do a disservice to various grassroots
movements struggling for a better world.
If an alternative model is to succeed that truly places quality of life and respect for the environment over raising the
gross domestic product and expanding consumerism, that puts sustainability over dependency on the extraction of
http://www.truth-out.org/news/item/23377-the-politics-of-pachamama-natural-resource-extraction-vs-indigenous-rights-and-the-environment-in-latin-america?tm

4/5

7/27/2014

The Politics of Pachamama: Natural Resource Extraction vs. Indigenous Rights and the Environment in Latin America

finite raw materials, that puts the rights to small scale agriculture and indigenous territorial autonomy ahead of
mining and soy companies, it will likely come from these grassroots movements. If this model is to transform the
regions wider progressive trends, these spaces of dissent and debate in indigenous, environmental and farmer
movements need to be respected and amplified, not crushed and silenced.
We are on our feet, marching against extractivism, Rojas said. Mother Earth is tired.
This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without
permission or license from the source.

BENJAMIN DANGL
Benjamin Dangl has worked as a journalist throughout Latin America and is the author of the new book, Dancing with
Dynamite: Social Movements and States in Latin America (AK Press). For more information, visit
DancingwithDynamite.com. Email Bendangl(at)gmail(dot)com.

Related Stories
Latin America and the Zombie Factor
By Alex Sanchez, Council on Hemispheric Affairs | News Analysis

Latin America Delivers a Swift Kick

By Conn Hallinan, Dispatches From The Edge | News Analysis

Latin Americas Anti-Intervention Bloc

By W. Alejandro Sanchez, Foreign Policy in Focus | News Analysis

Show Comments

http://www.truth-out.org/news/item/23377-the-politics-of-pachamama-natural-resource-extraction-vs-indigenous-rights-and-the-environment-in-latin-america?tm

5/5

Lakota Allies Gather to Stand Their Sacred Ground

by Natalie Hand and Kent Lebsock, Owe Aku International Justice Project (www.oweakuinternational.org)
We sought spiritual guidance and were told that the spirit of Unci Maka will awaken people to protect
her. For us it has always been about protecting sacred water, whether it's uranium mining or KXL.
Debra White Plume, Owe Aku, Moccasins on the Ground.

The grassroots people of the Kul Wicasa Oyate (Lower Brule) immediately put out a call to
action when they learned that their Tribal Council (1934 Indian Reorganization Act government)
agreed to allow the construction of a power station and power lines on treaty land necessary to
move tarsands oil through the KXL pipeline. Despite efforts of the grassroots leaders to obtain
documentation from the Lower Brule Sioux Tribe, their attempts were unanswered. The Lower
Brule Sioux tribal council is comprised of six people including President Michael Jandreau, who
has served in tribal government since 1973, with the most recent decades in the office of the
President. Inquiries to the Council by several tribal members resulted first in denial, then in
confirmation (without documentation) and finally an admission that the carrot to the Tribal
Council is the construction of wind turbines and free electricity for tribal members.
Lakota people from Rosebud Sioux and Cheyenne River Sioux reservations and surrounding
towns and urban areas, as well as members of Owe Aku's Moccasins on the Ground,
headquartered on the Pine Ridge Sioux Reservation, answered the call to action. The grassroots
people served the evening meal to the gathering of about 200 people and spiritual protocol was
followed with the offering of prayer and honor songs by Kul Wicasa singers. George Estes, a
member of the Kul Wicasa Oyate and world renowned Lakota flutist, shared a song for Mother
Earth to strengthen the growing spirit of collective action.
"We answered the call to action to stand in solidarity with our relatives who want to protect
sacred water and lands from Transcanada's HUGE power station needed to pump tarsands
through our treaty territory. According to everything we have learned, their tribal council is
taking action behind the peoples backs. We will stand with our relatives and, as one young man
said, lets take it right to them, stated White Plume.
Were up against a well-established council. They had to have signed an agreement, said
Kevin Wright, co-organizer of the meeting. Power line leases are entered into with local utilities
and power corporations (under South Dakota Public Utilities Commission regulations), in this
case Basin Electric who intends to provide electrical power to Keystone XL.
The grassroots people of Kul Wicasa oppose the development of the power line infrastructure
planned by Basin Electric. The Lower Brule substation is to be located two miles from the Big
Bend Damn. The thick, corrosive nature of tarsands oil (which in its natural state is the
consistency of peanut butter) requires a constant temperature of 150 degrees Fahrenheit and
necessary dilutants to liquify it enough to be slurried through the pipeline. This will require an
enormous amount of power. Basin Electric stated at a public utilities commission meeting in
Winner, SD the pipeline apparently moves oil under 1440 pounds of pressure per square inch. If
the line is to move 700,000 barrels of crude per day, each pumping station requires three 6500 hp

electric motors running on 17 megawatts of power night and day. If the flow rate is increased to
900,000 barrels per day, five 6500hp electric motors are required. That would use 25 megawatts
of power.
This increasing demand for electricity forces the need for the additional power station at Lower
Brule. Transmission studies indicate the current system has reached its load limit. Given the
location of the Lower Brule substation, 2 miles south of the Big Bend Damn, it is apparent
Missouri River water will be used to produce electricity.
The 230-kV transmission line would impact the landscape along the Missouri River. This area
provides a recreational and tourism based economy to the Lower Brule Sioux Tribe. According
to TransCanadas own Supplemental Environmental Impact Study, the 75-mile transmission line
would have a 125-foot-wide right of way; therefore, approximately 1,150 acres of land would be
affected by construction An average of 6.6 support structures per mile would be required. The
average height of the structures would be
110 feet, and each would span an average
of 800 feet.
Both TransCanada and Basin Electric admit
the impacts of the power lines would be
permanent, including destruction of soil and
vegetation along the right of access and
though TransCanada has agreed to mitigate
this damage, there are no guarantees. This
could negatively impact the Lower Brule
Sioux Tribes environmentally sound
economic development project called Lakota Foods, started seven years ago with popcorn,
kidney and pinto beans, including processing and packaging facilities. These products are grown
on the reservation and the enterprise provides jobs to the people most immediately affected by
the proposed KXL pipelines need for electrical expansion. (http://
www.americanindianfoods.com/products/lakota-foods/)
In June 2011, Canadas National Energy Board inspectors revealed pump stations in four
locations lacked a required alternate source of power capable of operating each stations
emergency shut-down system, finding TransCanada is non-compliant with board regulations.
Evan Vokes, a whistleblower who has challenged TransCanadas methods stated, an audit
based on paper and interviews only cannot catch non-compliance in the field. In my
experience, TransCanadas management failings are systemic and wont be fixed simply
by reviewing what TransCanada says its policies are on paper. These kind of reviews have
not fixed the problem in the past and they arent sufficient now. Time and again,
TransCanadas internal and third-party audit systems have failed to catch the repeated
substandard practice of engineering in the construction and maintenance of its
pipelines. (http://www.desmogblog.com/2014/03/07/whistleblower-s-evidence-againsttranscanada-whitewashed-regulators.)

Kevin Wright of the Kul Wicasa Oyate stated, even one inch is too much when it comes to
collaboration that leads to the construction of KXL tarsands pipeline on Lakota treaty territory.
The electric power necessary to move tarsands bitumen does not come close to the power of the
Lakota Oyate to protect our sacred water, stated Natalie Hand.
The Rosebud Sioux Tribe is in the same situation. Although Transcanada has carefully avoided
routing the pipeline across reservation land, they too are impacted by KXLs necessary
infrastructure. Russell Eagle Bear of the Rosebud Sioux Tribal Council, which has officially
opposed the Pipeline, stated that power lines are planned to cross the Rosebud reservation. He
said construction of a man camp is planned literally across
a narrow dirt road from the reservation. We told the
Bureau of Indian Affairs, do not let the transmission line
through our territory.
White Plume warned of the devastation that will be caused
by TransCanada infrastructure, whether its the pipeline,
the electrical infrastructure or the bad man camps that will
each house up to two thousand imported workers. In this
work weve learned a lot about the tarsands mines up north,
we have friends and allies who live in a spiritual way who
come from there. They've been displaced from their land
because some of their band members signed agreements
with corporations and the First Nations peoples had to move off the land; the land isn't even there
now; it's an oil mine; there was a lake there that was 200 miles long and 100 miles wide. Now,
the elders are saying, for the first time, the shoreline is receding and the rocks at the bottom of
the lake are exposed. Water is being taken from the rivers and lakes to support the destruction by
the tarsands mine. I'm shocked this tribal council has signed agreements with KXL since we are
supposed to be standing together as Oceti Sakowin (Seven Council Fires). Fat Taker never stops
and will run over anybody to feed themselves. As Kevin Wright of the Kul Wicasa Oyate
stated, if we do not stand up to the Black Snake, when our sacred
water is gone, all we will have left to drink is our tears.
The Kul Wicasa Oyate have partnered with Owe Aku to host an
educational and action meeting on March 30th, 2014 at Lower
Brule. For more information contact Kevin Wright at
605-220-0394 or Louis Grass Rope at 605-208-6151. The Kul
Wicasa have scheduled a Treaty Meeting for March 29, 2014.
The message of the grassroots meeting: we are one Lakota Oyate
and we will not permit the destruction of our lands and waters,
we will protect it for future generations.

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

85TH SESSION
AUGUST 13-14, 2014
EXAMINATION OF THE UNITED STATES 7TH, 8TH AND 9TH PERIODIC REPORTS
OF JUNE 2013
ALTERNATIVE REPORT REGARDING LACK OF IMPLEMENTATION OF CERD
CONCLUDING RECOMMENDATION 29 [CERD/C/USA/CO/6] REGARDING THE
UNITED STATES IN FEBRUARY 2008 AND ACTIVITIES NEGATIVELY IMPACTING
AREAS OF SPIRITUAL AND CULTURAL SIGNIFICANCE TO INDIGENOUS
PEOPLES
Jointly Submitted by the International Indian Treaty Council*, Indigenous World
Association, Native Village of Venetie (Gwichin Nation), Chickaloon Native Village and
Chickaloon Village Traditional Council, Western Shoshone Defense Project, Pit River
nation, Advocates for the Protection of Sacred Sites, Lipan Apache Women Defense,
Lakota Treaty Council, United Confederation of Tano People, Hickory Ground Tribal
Town, Muscogee (Creek) Nation, Gila River Alliance for a Clean Environment, Guahan
Coalition of Guam, Na Koa Ikaika KaLahui Hawaii, Koani Foundation, Aha Moku Council,
AmerndAIRFA (American Indian Religious Freedom Act), Oglala Lakota Nation,
Havasupai Tribe, Haskell Wetlands Walkers Student Organization and The Morning Star
Institute
The Co-Submitters of this Alternative Report thank the following for their significant
contributions to the content of this Report: the Gila River Indian Community Council, the Yurok
Tribe, and the Indigenous Youth Foundation.
July 25, 2014
Contact:
Danika Littlechild, Legal Counsel
International Indian Treaty Council
2940 16th Street, Suite 305
San Francisco CA 94103
Office Phone: (415) 641-4482
Cell Phone: +1 (780) 312-0246
Office Fax: (415) 641-1298
Email: danika@treatycouncil.org
Website: www.treatycouncil.org
*See attached for a list of IITC affiliated Tribal Nations, governments, organizations, networks,
societies and communities based in the United States

Executive Summary
The International Treaty Council (IITC) et. al.1 address the issues to be raised in the review of the
United States of Americas (US) compliance as a State Party to the International Convention
on the Elimination of all forms of Racial Discrimination (ICERD). The co-submitters of the
Indigenous Peoples Joint Alternative Report respectfully call the attention of the UN Committee
on the Elimination of Racial Discrimination (CERD) to critical human rights concerns that are
not addressed, adequately or at all, in the US Governments 7th, 8th & 9th Periodic Reports.
The co-submitters affirm the urgent need to address the crises facing Indigenous Peoples in the
US and its territories regarding the lack of full legal protection for their sacred areas, religious
practices, cultures and spirituality and the continuing desecration, contamination and destruction
of Sacred Areas. US federal and state laws often restrict access in private, or at all, to the sacred
areas essential for maintaining the religious, cultural and spiritual practices of Indigenous Peoples.
In many cases, the US has failed to implement its own laws as well as its international obligations
pertaining to freedom of religion and belief when it comes to Indigenous Peoples.
This Report and the twelve (12) submissions addressing examples of specific critical cases,
document a pervasive pattern of obstacles and denials regarding the realization of rights to
freedom of religious practice, access to Sacred Areas, and closely related rights to land and
resources, Treaties, Self-determination and FPIC. These include:
1) Failure by the US to recognize and respect Indigenous Peoples religious and spiritual beliefs
and practice on an equal footing with the religions brought by the non-Indigenous settlers;
2) Failure by the US to respect the unbreakable connection between Indigenous Peoples lands,
waters and Sacred Areas and their religious and spiritual practices and beliefs;
3) Consistent priority given to economic development activities rather than freedom of religious
practice for Indigenous Peoples as reflected in laws, policies and court decisions including
those by the US Supreme Court;
4) Failure by the US to fully implement Free Prior and Informed Consent regarding legislative
actions, military activities and development projects impacting or threating Sacred Areas;
5) Failure to honor, respect and implement Treaties, concluded between Indigenous Nations and
the US, which affirm Indigenous jurisdiction over sacred lands, waters and areas, and affirm
hunting, fishing and gathering essential for cultural and ceremonial practices
6) Failure by the US to recognize the rights of Indigenous Peoples to their traditionally owned
or otherwise occupied or used lands and territories, including those legally recognized by
ratified Treaties. These often include sacred and culturally important areas which now lie
outside of the reservation lands currently recognized by the US, negatively impacting
Indigenous Peoples rights and ability to protect and have access to Sacred Areas including
those used for culturally-important gathering, hunting and fishing;
1

See cover page of the Report for a complete list of the co-submitters and other contributors.

7) The especially problematic situation faced by Indigenous Peoples who are not federally
recognized and therefore have no federally-recognized lands, nor ability to access even the
limited protections provided by US federal Laws regarding their Sacred Areas or religious
practices.
We respectfully present the CERD with the following core question for the United States.
1) Please provide information on measures taken to guarantee the protection of

Indigenous Sacred Areas as well as to ensure that Indigenous Peoples are consulted
and that their free, prior and informed consent is obtained regarding matters that
directly affect their enjoyment of rights under the Convention in areas of spiritual
and cultural significance. (re-statement of conclusion and recommendation 29 of the
CERD/C/USA/CO/6)

Finally, we submit the following recommendations to the Committee for consideration in their
review and Concluding Observations regarding the United States report:
1. That the US implement the UN Declaration on the Rights of Indigenous Peoples fully
and without qualification, and use it as a guideline for interpretation and
implementation of the ICERD regarding Indigenous Peoples sacred areas, places
and sites, including those of Indigenous Peoples who are not federally recognized;
2. That the US bring its national policies and laws into conformity with the provisions
of the ICERD and UNDRIP regarding Self-determination, Rights to Lands and
Resources, Subsistence and Free Prior and Informed Consent;
3. That the US implement laws and policies that fully respect freedom of religious
practice, culture and spiritual belief for Indigenous Peoples in accordance with their
international human rights obligations, enforce an absolute legal prohibition of the
desecration of sacred areas, and provide provisions for their protection;
4. That the US establish a national-level body for oversight and implementation of the
US human rights obligations, including the provisions of International Human
Rights Treaties and Declarations, Treaty Body recommendations and Nation-to
Nation Treaties with Indigenous Peoples, with the full and effective participation of
affected communities, Indigenous Peoples and Nations.

Medicine Lake and Mt Shasta were gifts to our Peoples from the Creator,
the One Above. These places are part of our creation and our teachings
about how we leave this world.
--- Mickey Gimmell Sr., 1944 - 2006
Pit River (Iss-Awhi) and Wintu Spiritual Leader, Member of the
International Indian Treaty Council Board of Directors

Section I Indigenous Peoples Sacred Areas, Free Prior and Informed

Consent and the United Nations Committee on the Elimination of
Racial Discrimination (CERD) Review of the US Compliance with the
International Convention on the Elimination of All Forms of Racial
Discrimination
1. Introduction

The International Indian Treaty Council (IITC) et. al.2 welcome the opportunity to address the
issues to be raised in the review of the United States of Americas (US) compliance as a State
Party to the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD). The co-submitters of this Indigenous Peoples Joint Alternative Report
respectfully want to call the attention of the Committee on the Elimination of Racial
Discrimination (the CERD or the Committee) to critical human rights concerns that are not
addressed, adequately or at all, in the US Governments 7th, 8th & 9th Periodic Reports to the
Committee. In many cases the co-submitters will present very different points of view,
interpretations and analysis from those offered by the US Reports.
This is the second review of the US to be carried out by the CERD since the adoption of the UN
Declaration on the Rights of Indigenous Peoples (UNDRIP) by the United Nations (UN)
General Assembly on September 13th, 2007. The Committee, in its conclusions and
recommendations in the last review (2008) of the US, recommended that:
While noting the position of the State party with regard to the United Nations
Declaration on the Rights of Indigenous Peoples (A/RES/61/295), the Committee
finally recommends that the declaration be used as a guide to interpret the State
partys obligations under the Convention relating to indigenous peoples.3
The US, after its initial no vote along with only three other states became the last country to
reverse this position and express its support (although with some very problematic qualifications
discussed below) on December 16, 2010. However, we remain deeply concerned about the lack
of implementation, which is discussed in a separate Alternate Report to the CERD submitted by
International Indian Treaty Council and others to the 85th Session of the CERD. UNDRIP, as the
2
3

Ibid.
CERD/C/USA/CO/6 at page 10 para. 29

internationally accepted universal framework of minimum standards for the survival, dignity,
well-being and rights of the world's Indigenous Peoples, therefore provides a framework for the
CERDs review of the US compliance with the Convention in relation to the specific questions
raised by the CERD regarding Indigenous Peoples.
There is an urgent need to address the crises facing Indigenous Peoples in many regions of the
US and its territories regarding the lack of full legal protection for their sacred areas, religious
practices, cultures and spirituality. For Indigenous Peoples their cultural, spiritual and religious
practice, and the sacred responsibilities that provide them with life and identity, are inextricably
linked to places of ceremonial practice, emergence and renewal. For the purpose of this
submission, reflecting the understanding of the Indigenous Peoples who are jointly submitting
this report, Sacred Areas is understood to include but not be limited to landscapes, ceremonial
grounds and structures, burial grounds, waterways, sacred items and areas essential for the
collection of ceremonial and culturally important animal and plant foods and medicines.
The impacts of tourism, extractive industries, industrial development, toxic contamination and
urbanization continue to manifest in the desecration, contamination and destruction of these
Sacred Areas. US federal and state laws continue to restrict access in private, or at all, to the
sacred areas essential for maintaining the religious, cultural and spiritual practices of Indigenous
Peoples. In addition, in many cases the US has failed to implement its own national laws as well
as its international obligations pertaining to freedom of religion and belief when it comes to
Indigenous Peoples.
In its 2008 review of the US, the CERDs Concluding Observations addressed the US failure to
uphold the rights of Indigenous Peoples concerning the protection of their Sacred Places and
areas of cultural importance, and made strong recommendations in that regard:
29. The Committee is concerned about reports relating to activities such as nuclear
testing, toxic and dangerous waste storage, mining or logging carried out or planned in
areas of spiritual and cultural significance to Native Americans, and about the negative
impact that such activities allegedly have on the enjoyment by the affected Indigenous
peoples of their rights under the Convention. (Articles 5 (d) (v), 5 (e) (iv) and 5 (e) (vi)).
The Committee recommends that the State party take all appropriate measures in
consultation with Indigenous peoples concerned and their representatives chosen in
accordance with their own procedures to ensure that activities carried out in areas
of spiritual and cultural significance to Native Americans do not have a negative
impact on the enjoyment of their rights under the Convention.
The Committee further recommends that the State party recognize the right of
Native Americans to participate in decisions affecting them, and consult and
cooperate in good faith with the Indigenous peoples concerned before adopting and
implementing any activity in areas of spiritual and cultural significance to Native
Americans. 4
4

Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the
Elimination of Racial Discrimination: United States of America, 77th Sess., UN Doc. CERD/C/USA/CO/6 (2008) at
para. 29.

The far-reaching implications of these recommendations addressing the US obligations under the
Convention cannot be minimized. It bears repeating that the CERD recommended that the
UNDRIP be used as a guide to interpret [US] obligations under the Convention
notwithstanding the [US] position vis-a-vis the Declaration. We understand these
recommendations as encompassing Indigenous Peoples right to Free Prior and Informed Consent
(FPIC), constituting a central concern for Indigenous Peoples with regards to their ability to
protect their Sacred Areas. The failure of the US to fully respect and implement this minimum
standard in its relationship(s) with Indigenous Peoples is a consistent pattern presented by
Indigenous Peoples who have contributed to this Alternative Report.
In 2006, in an Urgent Action/Early Warning Decision, the CERD made recommendations to the
US regarding the Western Shoshones rights to their lands and resources, specifically calling
upon the US to Freeze any plan to privatize Western Shoshone ancestral lands for transfer to
multinational extractive industries and energy developers and desist from all activities planned
and/or conducted on the ancestral lands of Western Shoshone or in relation to their natural
resources, which are being carried out without consultation with and despite protests of the
Western Shoshone peoples. 5 The CERD highlighted the US failure to comply with this earlier
decision in its 2008 Concluding Observations and urged the US to implement its
recommendations. To date, the US has not complied with the CERDs recommendations.6
Despite numerous efforts by Indigenous Peoples in both domestic and international fora, the US
continues to deny them the substantive enjoyment of the rights contained in the ICERD and other
international instruments. This Report sets out unedited chapters of US history and the myriad
ways in which obstacles are placed for observance of these rights, including cultural rights,
freedom of religious practice, access to Sacred Areas, and closely related rights to land and
resources, Treaties, Self-determination and FPIC. Obstacles identified by the contributors to this
Report include the following:
1) Failure by the US to recognize and respect Indigenous Peoples religious and spiritual beliefs
and practice on an equal footing with the religions brought by the non-Indigenous settlers;
2) Failure by the US to respect the unbreakable connection between Indigenous Peoples lands,
waters and Sacred Areas and their religious and spiritual practices and beliefs;
3) Consistent priority given to economic development activities rather than freedom of religious
practice for Indigenous Peoples as reflected in laws, policies and court decisions including
those by the US Supreme Court;
4) Failure by the US to fully implement Free Prior and Informed Consent regarding legislative
actions, military activities and development projects impacting or threating Sacred Areas;

Committee for the Elimination of Racial Discrimination, Sixty- eighth session Geneva, 20 February 10 March
2006 Early Warning and Urgent Action Procedure, Decision 1 (68). United States of America, UN Doc.
CERD/C/USA/DEC/1.
6
See the enclosed submission from the Western Shoshone Defense Project, Case N in this Report, for specific
violations of sacred areas and cultural rights which continue to be carried out on their lands as a result. In addition,
see the separate alternative report submitted to the CERD 85th Session by Western Shoshone and others.

5) Failure to honor, respect and implement Treaties, concluded between Indigenous Nations and
the US, which affirm Indigenous jurisdiction over sacred lands, waters and areas, and affirm
hunting, fishing and gathering essential for cultural and ceremonial practices
6) Failure by the US to recognize the rights of Indigenous Peoples to their traditionally owned
or otherwise occupied or used lands and territories, including those legally recognized by
ratified Treaties. These often include sacred and culturally important areas which now lie
outside of the reservation lands currently recognized by the US, negatively impacting
Indigenous Peoples rights and ability to protect and have access to Sacred Areas including
those used for culturally-important gathering, hunting and fishing;
7) The especially problematic situation faced by Indigenous Peoples who are not federally
recognized and therefore have no federally-recognized lands, nor ability to access even the
limited protections provided by US federal Laws regarding their Sacred Areas or religious
practices.

2. Relevant Provisions of the International Convention on the Elimination of All

Forms of Racial Discrimination
A) Article 5 (d)(v) property, ownership, title, treaties and rights to lands and resources
5. (d) (v) In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial discrimination in
all its forms and to guarantee the right of everyone, without distinction as to race, colour,
or national or ethnic origin, to equality before the law, notably in the enjoyment of the
following rights:
(d) Other civil rights, in particular:
(v) The right to own property alone as well as in association with others;
For many Indigenous Peoples in the US, lack of access to Sacred Places and Areas is closely
linked to a history of dispossession of their lands. This history is recounted in all the case
submissions contained in this report. In addition, the violation of the over 400 Treaties
concluded between Indigenous Nations and the US by the State Party have had a direct role in the
dispossession of Indigenous Peoples lands, territories and resources, including sacred places.
The direct and pervasive impacts of the violation of Treaties on the desecration of Indigenous
Peoples Sacred Places is addressed in depth in the July 8, 2014 joint submission to this session
of the CERD by the International Indian Treaty Council (IITC), Oglala Lakota Nation, Western
Shoshone Defense Project and the Indigenous World Association (IWA) titled
ALTERNATIVE REPORT REGARDING LACK OF IMPLEMENTION BY THE
UNITED STATES OF RECOMMENDATION 29 OF THE COMMITTEES 2008
CONCLUDING OBSERVATIONS: While noting the position of the State party with regard
to the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295), the
Committee finally recommends that the declaration be used as a guide to interpret the State
partys obligations under the Convention relating to indigenous peoples.

We respectfully call the attending of the CERD members to this section in relation to the issues
raised in this report, in particular regarding the example it provides regarding the violations of the
1868 Ft. Laramie Treaty concluded between the Lakota Nation and the US and the development
of the Keystone XL Pipeline. 7 Submissions in this report by the IITC, Lakota Treaty Council,
and the Western Shoshone Defense Project also provide examples of ongoing Treaty violations
specifically impacting Sacred Areas and cultural rights in the US.
Moreover, we submit that this Article of the ICERD relates also to the issue of self-determination.
The CERD confirmed that it is competent to examine self-determination issues when it issued its
General Recommendation on Self-Determination (CERD/48/Misc.7/Rev.3 1996), which provides
a framework for interpretation of the principle and its relationship to the Committees scope of
concern.8 We draw the attention of the Committee to consider the Alternative Report submitted to
the 85th Session of the CERD by International Indian Treaty Council and others regarding the
issue of Non-Implementation, and which specifically addresses the matter of the US taking a
different approach to self-determination.
We also draw the attention of the CERD to your 2001 Concluding Observations of the US:
The Committee notes with concern that treaties signed by the Government and Indian
tribes, described as domestic dependent nations under national law, can be abrogated
unilaterally by Congress and that the land they possess or use can be taken without
compensation by a decision of the Government.9
The dispossession and extinguishment of aboriginal title was also noted and raised as a concern
by the Human Rights Committee in its 2006 Review of the US under the International Covenant
on Civil and Political Rights.10 In its Fourth Periodic Report concerning the implementation of
its obligations under the International Covenant on Civil and Political Rights, dated December 30,
2011, the US responded by recounting a very selective history of native land occupancy and
property rights but failed to heed the recommendations of the HRC.11
The ICCPR provides the fundamental right of self-determination: All peoples have the right of
self-determination. By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development. This includes the need to exercise
appropriate rights to lands, territories and resources, as the main issue at hand is that of sacred
sites, areas and places which are necessarily fixed in terms of geography and location, but which
can constitute the beating heart and core aspect of Indigenous identity and self-determination.
Indigenous religious practices, spirituality and ties to sacred sites, areas and places cannot be
categorized and minimized in the same way as non-Indigenous religions or spirituality.
7

See Alternative Report regarding lack of implementation by the United States of Recommendation 29 of the
Committees 2008 Concluding Observations, submitted jointly by the International Indian Treaty Council, Oglala
Lakota Nation, Western Shoshone Defense Project and the Indigenous World Association July 8, 2014 Available
online at:
http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_NGO_USA_17613_E.pdf
8
Anaya, James Indigenous Peoples in International Law 2nd Edition, 2004: Oxford University Press at page 232
9
A/56/18 at para 400
10
See Human Rights Committee, Concluding Observations, para. 37, United States of America, Eighty-seventh
session, 10-28 July 2006, UN Doc. CCPR/C/USA/CO/3, 15 September 2006 Para. 37.
11
See Fourth Periodic Report, United States of America, 22 May 2012 (CCPR/C/USA/4) Paras. 684-689.

Indigenous spirituality, knowledge, cultures, health, wellness, life-ways and identities are all
necessary aspects of the full realization of not only economic, social and cultural rights under
international law but also of self-determination.
The adoption of the UN Declaration on the Rights of Indigenous Peoples affirmed that
Indigenous Peoples are entitled to the right of self-determination. As this report will demonstrate,
actions taken by the US government which impede the ability of Indigenous Peoples to access
and protect their sacred areas, effectively prevent the full and meaningful recognition of
Indigenous Peoples right to freely pursue their cultural development.
B) Article 5 (e) (iv) - economic, social and cultural rights, in particular impacts on the right
to public health
Cultural development, religious practice, health and subsistence are inextricably linked for
Indigenous Peoples. Indigenous Peoples relationships with traditionally used animals and
plants in many cases go beyond use for food and physical wellness. They are a fundamental
basis of ceremonies, spiritual relationships with the natural world, lands and waters and are the
basis of Indigenous identity as evidenced by their role in creation stories, clan membership and
ceremonies for passage into manhood/womanhood, and into and out of life in this world. In the
US, centuries of government actions, including Treaty violations, imposed development and laws
restricting access and reducing habitats, have served to deprive Indigenous Peoples of this
essential part of their wellness and existence.
In 2002, at the First Global Consultation on the Right to Food, Indigenous Peoples affirmed this
sacred relationship:
[T]he Right to Food of Indigenous Peoples is a collective right based on our special
spiritual relationship with Mother Earth, our lands and territories, environment, and
natural resources that provide our traditional nutrition; underscoring that the means of
subsistence of Indigenous Peoples nourishes our cultures, languages, social life, worldview,
and especially our relationship with Mother Earth; emphasizing that the denial of the
Right to Food for Indigenous Peoples not only denies us our physical survival, but also
denies us our social organization, our cultures, traditions, languages, spirituality,
sovereignty, and total identity; it is a denial of our collective Indigenous existence, . 12
By the mid 1800s, settlers under the sponsorship of the US government had decimated the
Buffalo, which was the Plains Indians' primary food source and a primary source of spiritual.
This not only resulted in the destruction of their independent political life, but also devastation to
their primary source of spiritual power, connection and identity. In the words of the White Clay
Bison Restoration Project on the Ft. Belknap Reservation in Montana USA,
Without the Buffalo, the independent life of the Indian people could no longer be
maintained. The Indian spirit, along with that of the buffalo, suffered an enormous
loss.
In other areas of the US, Indigenous Peoples have been severely impacted by developments such
as imposed damming and mining that have affected the life cycles of the Salmon:
12

DECLARATION OF ATITLN, GUATEMALA, Indigenous Peoples Consultation on the Right to Food: A

Global Consultation, Atitln, Solol, Guatemala, April 17 - 19, 2002.

The cycles of our lives and the countless generations of our Peoples are merged with
the life cycles of the Salmon. Salmon is our traditional food but it also defines who we
are. Our spiritual and cultural existence and the survival of our future generations are
based on the survival of the salmon and the exercise of our sacred responsibilities to
protect the rivers, oceans, watersheds and eco-systems where they live. The health of
the Salmon is one with the spiritual, cultural, and physical health of our Peoples. We
declare that birthing places of all life are sacred places, including the great rivers and
small streams where the Salmon spawn and the oceans where they live.13
Submissions in this Report from the Venetie and Chickaloon Tribal Governments in Alaska
further document this profound and essential cultural and ceremonial relationship for many if not
most Indigenous Peoples.
C) Article 5 (e) (vi) economic, social and cultural rights, in particular the right to equal
participation in cultural activities
The Maastricht Principles on Violations of Economic, Social and Cultural Rights14 state that both
individuals and groups can be victims of violations of economic, social and cultural rights and
that certain groups suffer disproportionate harm in this respect, including of course Indigenous
Peoples, but also including Indigenous women, children, youth, disabled, LGBT, low-income,
occupied Indigenous Peoples, non-recognized Tribes and Indigenous Peoples, and internally
displaced Indigenous persons. It is clear from the work of the CERD that the consideration of
cultural rights is not only the violation of the non-discrimination pillar of the ICERD, but also of
the other obligations of the state.
If we examine these obligations through the lens of the UNDRIP, it requires the state to
understand the collective and individual aspects of the exercise of cultural rights under this
Article of the ICERD:
Although cultural rights have not always been called collective rights in international
instruments, it is logically and morally impossible not to recognize the collective elements
of cultural rights, when speaking of indigenous peoples. International instruments
recognize that individuals belonging to national, ethnic, religious or linguistic minorities
and indigenous peoples will enjoy their cultural rights, not only individually, but also with
other members of their group.15
In addition, there are not only negative aspects of the rights described under the ICERD in
terms of violations that are willfully exercised against rights holders; there are positive aspects
of the rights described, as understood under Article 5(e)(vi). The right to equal participation in
cultural activities requires positive action on the part of the state. There are examples from
another human rights bodies and procedures, such as the Committee on Economic and Social
Rights, which considered that providing subsidies for constructing places of worship for various
13

Consensus Outcome Document: Pel son mehl Ney-puy (Big Doings with the Salmon), Indigenous Peoples'
International Gathering to Honor, Protect and Defend the Salmon, June 21st- 23rd, 2013, Hehlkeek 'We-Roy (Klamath
River), Yurok Nation Territory, Northern California.
14
E/C.12/2000/13, Parts IV and V
15
Stamatopolou, Elsa, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human
Rights and Beyond 2007: Martinus Nijhoff Publishers at page 172-173

10

religions contributed to the realization of the right to participate in cultural life.16 In fact, the
Special Rapporteur on freedom of religion and belief has called for respect of land-based
religions of Indigenous Peoples which are closely linked to their identities.17
Further and of particular interest under Article 5(e)(vi) of the ICERD, is Article 18 clause 1 of the
ICCPR providing that Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching. Article 27 of the ICCPR
provides a corresponding right for Indigenous Peoples in the US, in community with the other
members of their group, to enjoy their own culture, to profess and practise their own religion, or
to use their own language.
Article 27 has been expressly linked to States' duty to guarantee Indigenous Peoples' right to
enjoy their cultures and to the protection of their ways of life, closely linked to territory and
resource use. The Committee, in its General Comment No. 23 on Article 27 in 1994, made the
following observation:
7. With regard to the exercise of the cultural rights protected under article 27, the
Committee observes that culture manifests itself in many forms, including a
particular way of life associated with the use of land resources, especially in the case
of Indigenous Peoples. That right may include such traditional activities as fishing or
hunting and the right to live in reserves protected by law. The enjoyment of those
rights may require positive legal measures of protection and measures to ensure the
effective participation of members of minority communities in decisions which affect
them. 18
The Inter American Commission on Human Rights and the Inter-American Court have also
applied General Comment 23 to interpret the American Convention in a case involving sacred
area protection.19
Article 18 of the ICCPR has been interpreted to provide protection for Native Americans access
to sacred places. In 1998 Mr. Abdelfattah Amor, then Special Rapporteur on Religious
Intolerance, and the first Special Procedure to address Native American spiritual concerns in the
context of international law, visited the US. In his report, he generally supported the idea of the
development of a coherent and comprehensive framework for interpreting and applying the two

16

See for example E/1999/22, para. 175 regarding the Netherlands.

See Report from the Visit to the United States by the Special Rapporteur, E/CN.4/1999/Add.1, paras. 52-69
18
General Comment No. 23 (1994): Article 27 (rights of minorities), 7, CPR/C/21/rev.1/Add.5 (1994) (footnote
omitted).
19
Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment,
Inter-Am. Ct. H.R. (ser. C) No. 172, 95 (Nov. 28, 2007):
95. The above analysis [contained in General Comment No. 23, 7] supports an interpretation of Article 21 of
the American Convention to the effect of calling for the right of members of Indigenous and tribal
communities to freely determine and enjoy their own social, cultural and economic development, which
includes the right to enjoy their particular spiritual relationship with the territory they have traditionally
used and occupied.
17

11

constitutional religion clauses [i.e., freedom of religion and non-establishment clauses]. 20 In

doing so he wholly endorse[d] the approach of taking into account the traditions of other
peoples as reflected in the main United Nations human rights instruments, namely, the
International Covenant on Civil and Political Rights (article 18) . 21
In his Conclusions and Recommendations, he highlighted his concern regarding freedom of
belief of Native Americans, as a fundamental matter and [which] requires still greater
protection.22 Even with the limitations provided in clause 2 of Article 18, he observed:
The expression of the belief has to be reconciled with other rights and legitimate concerns,
including those of an economic nature, but after the rights and claims of the parties have
been duly taken into account, on an equal footing (in accordance with each party's system of
values). As far as Native Americans' access to sacred sites is concerned, this is a
fundamental right in the sphere of religion, the exercise of which must be guaranteed in
accordance with the above- mentioned provisions of international law on the matter.23
(Emphasis added.)
Notably, Mr. Amor also concluded that the legislative framework that exists in the US for the
protection of Native America Freedom of Religion and belief (applied then as now only to
federally recognized tribes) was lacking:
80. As far as legislation is concerned, while noting advances in recent years in the
instruments emerging from the legislature and the executive which are designed to protect
Native Americans' religion in general (American Indian Religious Freedom Act) and in
particular (Native American Graves Protection and Repatriation Act, Executive Order on
Indian Sacred Sites, Executive Memorandum on Native American Access to Eagle
Feathers), the Special Rapporteur identified weaknesses and gaps which diminish the
effectiveness and hinder the application of these legal safeguards. Concerning the
American Indian Religious Freedom Act, the Supreme Court has declared that this law
was only a policy statement. As for the Executive Order on Indian Sacred Sites,
unfortunately, it does not contain an action clause, leaving the tribes without the needed
legal teeth. Higher standards or the protection of sacred sites are needed and effective
tribal consultation should be ensured.24

20

Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights
resolution 1998/18,Addendum, Visit to the United States of America, E/CN.4/1999/58/Add.1, 9 December 1998,
para.71
21
Ibid para 71
22
Ibid para. 82
23
Ibid para. 82. Mr. Amor was the second Special Procedure to visit the United States. Agreeing with earlier
observations made by Mr. Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions
(see, E/CN.4/1998/68/Add.3) in his 1997 visit to the United States, Mr. Amor observed the following: : In general,
it appears that international human rights law, including treaties ratified by the United States, is seen as belonging
solely to foreign affairs and not to domestic affairs and that domestic law de facto takes precedence over
international law. (Ibid. paras. 28 and 73)
24
Ibid, para. 80

12

Amor further recommended to the US that in the legal sphere Native Americans' system of
values and traditions should be fully recognized, particularly as regards the concept of collective
property rights, inalienability of sacred sites and secrecy with regard to their location.25
The enclosed submissions from Indigenous Peoples, including Tribal and Traditional
governments and communities, demonstrate that Mr. Amors recommendations have not yet been
implemented by the US.
Special Rapporteur on the Rights of Indigenous Peoples James Anaya, in his official country visit
to the US in 2012, heard from a number of Indigenous Peoples involved in current struggles to
protect their Sacred Areas and Cultural practices.
Professor Anaya in his final report to the UN Human Rights Council in September 2012 noted
Amors report and affirmed that the basic situation of desecration and lack of access for
Indigenous Peoples to sacred areas, mainly as a result of extractive activities or other types of
imposed development, had not been alleviated in the 13 years that separated their country visits:
With their loss of land, Indigenous peoples have lost control over places of cultural and
religious significance. Particular sites and geographic spaces that are sacred to
Indigenous peoples can be found throughout the vast expanse of lands that have passed
into government hands. The ability of Indigenous peoples to use and access their sacred
places is often curtailed by mining, logging, hydroelectric and other development projects,
which are carried out under permits issued by federal or state authorities. In many cases,
the very presence of these activities represents a desecration.26

3. The International Human Rights Framework

Fundamental rights contained in ICERD and other International norms and standards together
provide a framework by which the relevant rights for Indigenous Peoples can be understood and
interpreted by the Committee. These include the following:
A) Free, Prior and Informed Consent
For Indigenous Peoples, the Right of Free, Prior and Informed Consent (FPIC) is a requirement,
prerequisite and manifestation of the exercise of their fundamental right to self-determination as
defined in international law. It is also an essential right for the protection and defense of
Indigenous Peoples sacred areas in particular those threatened by imposed development.
With the Adoption of the UNDRIP, as well as other international standards such as General
Recommendation XXIII of the UN Committee on the Elimination of Racial Discrimination
(CERD) and the 2005 UN General Assemblys Plan of Action for the 2nd International Decade of
the Worlds Indigenous Peoples,27 FPIC is an undeniable operative international human rights
framework to which the US is accountable.28

25

Ibid, para. 81
Anaya, James, Report of the Special Rapporteur on the Rights of Indigenous Peoples, The situation of Indigenous
Peoples in the Unites States of America 30 August 2012, A/HRC/21/47/Add.1 at page 12.
27
One of the UN General Assemblys five objectives for the Programme of Action for the Second International
Decade of the Worlds Indigenous People is promoting full and effective participation of Indigenous peoples in
decisions which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as
26

13

FPIC has also been affirmed in the jurisprudence of the Inter-American Human Rights
Commission, the Inter-American Court and by a number of landmark Studies by UN Special
Rapporteurs.29
Consent is also a fundamental Treaty Principle, to which the US is obligated and which predates
its obligations under UN Conventions and Covenants. It is a foundation of the original
relationship between the US and Indian Treaty Nations which the US Constitution recognizes as
the Supreme Law of the Land. For example, the Ft. Laramie Treaty concluded on April 29th,
1869 with the Great Sioux Nation, 30 states in Article 16:
The United States hereby agrees and stipulates that the country north of the North Platte
River and east of the summits of the Big Horn Mountains shall be held and considered to
be unceded Indian territory, and also stipulates and agrees that no white person or
persons shall be permitted to settle upon or occupy any portion of the same; or without
the consent of the Indians first had and obtained, to pass through the same;(Emphasis
added.)
The UNDRIP affirms the Right to FPIC in a number of Articles which are directly relevant to the
protection and practice of Indigenous Peoples culture and religion. These include specifically
Articles 10, 11, 19, 26, 28, 29 and 32. The closely linked right to participate in decision-making
in matters which may affect them is also affirmed in Article 18. In addition the Right to SelfDetermination (Article 3) and the rights affirmed in Treaties (Article 37) also imply and affirm
Consent.
B) The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
The adoption of the UNDRIP by the UN General Assembly on September 13th, 2007, was an
historic step forward for Indigenous Peoples. A range of rights recognized by the ICCPR and
ICERD are affirmed and further defined by the provisions of the UNDRIP. These include, inter
alia, the closely related rights of Self Determination (Article 3); the recognition, observance and
enforcement of Treaties concluded with States (Article 37); rights to traditional subsistence
Indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior
and informed consent, GA Res 60/142, UN GAOR, 60th Sess., Supp. No. 49, UN Doc. A/60/49 (2006)
28
International Labor Organization Convention No. 169 on Indigenous and Tribal Peoples, which also affirms
consent, is not mentioned here because the US has not yet ratified it
29
Special Rapporteur Erica-Irene A. Daes, in her landmark studies on Indigenous land rights
(E/CN.4/Sub.2/2001/21), Indigenous peoples intellectual and cultural heritage (E/CN.4/Sub.2/1993/28), and
Indigenous peoples permanent sovereignty over natural resources (E/CN.4/Sub.2/2004/30 and Add.1) recognized
the historic and current violations of Indigenous Peoples' rights as result of the appropriations of their lands and
resources without their Free Prior and Informed consent, and the failure of states to insure that these rights are
protected. Madame Daes also emphasized the need to respect free prior and informed consent in any effective
redress and resolution as well as in legislative measures to redress violations or correct current policies. For example,
in her final recommendations in the Indigenous land rights study Madame Daes called upon states to implement
measures to recognize demarcate and protect the lands, territories and resources of Indigenous peoples
E/CN.4/Sub.2/2001/21 paragraph 145 . but she also stressed that such legislation must recognize Indigenous
peoples traditional practices and law of land tenure, and it must be developed only with the participation and free
consent of the Indigenous peoples concerned. (ibid, paragraph146, emphasis added).
30
TREATY WITH THE SIOUX -- BRUL, OGLALA, MINICONJOU, YANKTONAI, HUNKPAPA,
BLACKFEET, CUTHEAD, TWO KETTLE, SANS ARCS, AND SANTEE-- AND ARAPAHO 15 Stat., 635.
Ratified, Feb. 16, 1869. Proclaimed, Feb. 24, 1869.

14

(Article 20); rights to cultural and traditional knowledge (Article 31); rights and relationship to
land, territories and resources (Articles 25 and 26) and the right of Free Prior and Informed
Consent in various articles as mentioned above.
The CERD recommended in 2008 that the US use the UNDRIP as a guide to interpret the State
partys obligations under the [ICERD] Convention relating to Indigenous peoples.31
1) The UNDRIP and Rights to Culture, Religious Traditions and Protection of Sacred Areas
Of particular importance for this submission regarding the rights to and protection of Sacred
Areas, cultural and religious practices are the following articles in the UNDRIP:
Article 11
1. Indigenous Peoples have the right to practise and revitalize their cultural traditions and
customs. This includes the right to maintain, protect and develop the past, present and
future manifestations of their cultures, such as archaeological and historical sites, artefacts,
designs, ceremonies, technologies and visual and performing arts and literature.
2. States shall provide redress through effective mechanisms, which may include restitution,
developed in conjunction with Indigenous Peoples, with respect to their cultural,
intellectual, religious and spiritual property taken without their free, prior and informed
consent or in violation of their laws, traditions and customs.
Article 12
Indigenous Peoples have the right to manifest, practice, develop and teach their spiritual
and religious traditions, customs and ceremonies; the right to maintain, protect, and have
access in privacy to their religious and cultural sites; the right to the use and control of
their ceremonial objects; and the right to the repatriation of their human remains.
Article 25
Indigenous Peoples have the right to maintain and strengthen their distinctive spiritual
relationship with their traditionally owned or otherwise occupied and used lands, territories,
waters and coastal seas and other resources and to uphold their responsibilities to future
generations in this regard.
These rights apply equally and without distinction to places found within existing reservations or
territorial boundaries which the US recognizes legally, and those that are located on lands
traditionally owned or otherwise occupied or used by the Indigenous Peoples in question.32

31

See Concluding Observations of the Committee on the Elimination of Racial Discrimination on the United States
of America, Consideration of Reports Submitted by States Parties under Article 9 of the Convention, 8 May 2008
CERD/C/USA/CO/6, at para. 29
32
See, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya: Extractive industries
and Indigenous Peoples, July 1, 2013, para 35 (citing Inter-American Court of Human Rights, Sawhoyamaxa
Indigenous Community v. Paraguay, judgment of 29 March 2006, para. 128):

15

They are very closely tied to, and reinforced by, Article 26 which affirms the rights of Indigenous
Peoples to the lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
2) The UNDRIP and the International Right to Self-Determination for Indigenous Peoples
The significance of the UNDRIPs full and unqualified recognition of Indigenous Peoples as
Peoples for the first time in an international human rights standard has far-reaching implications.
The range of other instruments which are legally binding upon the US and contain rights which
accrue to all Peoples clearly also apply to Indigenous Peoples. Primary among those is the Right
to Self-determination, including the right to equal participation in cultural activities, as stated in
paragraph 5(e)(vi) of the ICERD.
C) The UN Human Rights Committee and the International Covenant on Civil and Political
Rights
In its 2014 review of the US, the Human Rights Committee Concluding Observations address
specifically the issue of sacred sites, areas and places:
29.The Committee is concerned about the insufficient measures taken to protect the
sacred areas of indigenous peoples against desecration, contamination and destruction as a
result of urbanization, extractive industries, industrial development, tourism and toxic
contamination. It is also concerned about the restriction of access of indigenous peoples to
sacred areas that are essential for the preservation of their religious, cultural and spiritual
practices, and the insufficiency of consultation with indigenous peoples on matters of
interest to their communities (art. 27).
The State party should adopt measures to effectively protect sacred areas of
indigenous peoples against desecration, contamination and destruction and ensure
that consultations are held with the indigenous communities that might be adversely
affected by the State partys development projects and exploitation of natural
resources with a view to obtaining their free, prior and informed consent for
proposed project activities
This observation and recommendation was one of very few directed at the US respecting
Indigenous Peoples. As such, the HRC obviously prioritized this issue as a matter of urgency,
couching it firmly in the framework offered by international law, also reviewed in this
submission. We hope that the CERD can take this recommendation further, in the sense of the
multi-faceted set of rights articulated under Article 5 of the ICERD which allows for multiple
views on the scope and content of economic, social and cultural rights to be exercised by
Indigenous Peoples as set out in this submission.

It should be recalled that under various sources of international law, Indigenous Peoples have property,
cultural and other rights in relation to their traditional territories, even if those rights are not held under a
title deed or other form of official recognition.

16

4. The US Domestic Framework: A History of Legal and Judicial Dispossession and

Disenfranchisement
A) The Doctrine of Discovery and Resulting Laws and Policies: Impediments to Enjoyment
of Rights under the CERD
Many, if not most, cases of desecration and lack of access to Sacred Places are linked to the
history of US dispossession of Indigenous Peoples lands. In many cases, sacred areas originally
within traditional aboriginal lands of Indigenous Peoples are now outside their federallyrecognized reservation or territorial boundaries, and therefore considered outside of their legal
jurisdiction and control under US law. Many sacred areas are located what is now considered
public or government-controlled lands, such as national forest areas, national and state parks,
wilderness or protected areas, and military reservations. This history of this dispossession is
recounted in many of the case submissions in the next section this Report.
In fact, discriminatory doctrines such as the Doctrine of Discovery and its resultant plenary
policy are still in full force and effect in the US. Due in large part to its continuing legacy in the
US and other countries, the Doctrine of Discovery was the theme of the 11th Session of the UN
Permanent Forum on Indigenous Issues.33 The UNPFII called upon States to repudiate
doctrines that serve as legal and political justification for the dispossession of Indigenous peoples
from their lands, their disenfranchisement and the abrogation of their rights. 34
Although it has shed its original religious justifications for appropriating Indigenous Peoples
lands on the surface, the Doctrine of Discovery continues as a foundational US legal principle
which has been employed many times since the initial articulation in the Marshall Trilogy of
cases (1823-1832). This includes Tee-Hi-Ton Indians v. United States, 348 U.S.272 (1955),
wherein the US government argued against compensation for a federal taking of Indian timber
lands on the basis of the Doctrine of Discovery found in US law. In 2005, in the case City of
Sherrill v. Oneida Indian Nation of New York,35 the US Supreme Court cited the doctrine of
discovery as law still prevailing in the US: "[u]nder the Doctrine of Discovery, fee title to the
lands occupied by Indians when the colonists arrived became vested in the sovereign first the
discovering European nation and later the original states and the United States.36
B) Continuing Legacy Land Dispossession and Treaty Violations: The Allotment Act and
the Indian Claims Commission
Land loss for Indigenous Peoples in the US has occurred not only under outright dispossession,
as under the Doctrine of Discovery, but through laws enacted under policies of assimilation and
genocide.
For example, between 1887 and 1934, under the Dawes Act,37 land owned by Native Peoples in
the US decreased from 138 million acres (560,000 km2) in 1887 to 48 million acres
33

"Doctrine of Discovery: Its continuing impacts on Indigenous Peoples and Redress for Past Conquests (articles 28
and 37 of the UN Declaration on the Rights of Indigenous Peoples)."
34
UNPFII Report on the eleventh session (7-18 May 2012) E/2012/43-E/C.19/2012/13, Recommendation 4.
35
544 U.S. 197
36
Id. at fn.1, citing Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661, 667 (1974) (Oneida I).
37
Act of February 8, 1887 (24 Stat. 388, Ch. 119, 25 USCA 331), Acts of Forty Ninth Congress, Second Session,
1887, also known as General Allotment Act.

17

(190,000 km2) in 1934. Before 1946, a Tribe had to first seek special legislation waiving the US
sovereignty to file a land claim in the US courts. Between 1881 and 1945, of 135 cases filed by
67 tribes under special legislation, 103 were dismissed.38 Dissatisfaction with the special
legislation approach resulted in the passage of the Indian Claims Commission Act of 1946,39 so
that the US could completely and finally dispose of all claims against it. It soon became apparent
that the ultimate purpose was to prepare Tribes for complete assimilation and terminate their
special status under US law. The Act created the Indian Claims Commission, which had authority
to hear and finally determine all Indian claims against the federal government that accrued before
August 13, 1946.40 Most claims brought before the Commission were based on aboriginal or
Indian title as well as Treaty rights.
Despite the implicit recognition of equitable claims, the Commission and the Court of Claims
interpreted the Act to limit relief to monetary compensation. Lawyers involved in the process,
including those purportedly representing the Tribes and Treaty Nation claimants, proceeded on
the assumption that the seizures of Tribal and Treaty lands were constitutional exercises of
eminent domain, implying that the Indigenous Peoples tribes had, at most, a right to monetary
compensation, not return of their lands even if they had been illegally taken. Some tribes,
realizing they could compromise their title, withdrew their claims from the process. As stated by
Professor Nell Jessup Newton: The determination that money damages can be the only remedy
for ancient wrongs inevitably shapes the kinds of wrongs that can be remedied. Ironically then,
the worst crimes against tribes were the least remediable. 41
Between 1946 and the termination of the Indian Claims Commission in 1978, 370 claims were
filed with the Commission; the US Congress dismissed the Commission with referral of 102
cases to the Court of Claims. Some of these cases remain in litigation.
A just, fair process in the US to address, adjudicate and correct Treaty violations and other land
rights abrogations with the full participation and agreement of impacted Indigenous Peoples has
never, to date, been established in the US. Cases submitted by the Western Shoshone, and the
IITC and Lakota Treaty Council provide examples of specific human rights violations resulting
from the Land Claims Commission process.

38

Of the 32 cases in which compensation was awarded, offsets exceeded the award and recovery was zero.
Moreover, the US government resisted paying interest on those judgments. In fact, litigation of claims based upon
violation of Indian treaties were specifically excluded from the jurisdiction of the Court of Claims, which was
created in 1855 to allow citizens to file claims against the United States, and amended in 1963. Act of March 3, 1863,
ch. 92, 9, 12 Stat. 765,767.
39
25 U.S.C. 70-70v
40
The Act (25 U.S.C. 70a) created five classes of claims, three of which encompassed land claims:
(3) claims which would result if the treaties, contracts, and agreements between the claimant and the United
States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral
mistake, whether of law or fact, or any fact cognizable by a court of equity;
(4) claims arising from the taking by the United States, whether as the result of a treaty of cession or
otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation
agreed to by the claimant; and
(5) claims based upon fair and honorable dealings that are not recognized by any existing rule of law or
equity.
41

Nell Jessup Newton, Indian Claims in the Courts of the Conqueror (1992) 41 Am. U.L. Rev. 753 at 784.

18

C) Lack of Protection for the Human Rights to Freedom of Religion and Culture for
Indigenous Peoples in US Jurisprudence
The First Amendment to the Constitution of the US includes the clauses, Congress shall make
no law respecting an establishment of religion or prohibiting the free exercise thereof. In
practice, the right to freedom of religion has been denied to Indigenous Peoples, and in the few
instances where the US government has tried to accommodate Indigenous Peoples religious
practices, these actions have been challenged by corporate and private interests.42 The US
government, as owner/manager of public lands, routinely has acted or has permitted private
actions that rendered Indian sacred places and areas inaccessible and unusable for religious
ceremonies. By flooding a valley or a canyon, for example, or by building a road through a high
alpine area, the US government has made it impossible in practice for Indigenous Peoples to
exercise their religions. In each case, however, a federal court held that such destructive
government activity was not an improper burden on the Indigenous Peoples freedom to exercise
their religious beliefs within the guarantees of the First Amendment.43
Special Rapporteur Amor took special note of US jurisprudence in this area in his 1999 report, at.
Paragraph 56. He noted in particular the case of Lyng v. Northwest Indian Cemetery Assocn,
485 U.S. 439 (1988), 451-452, involving a road through a sacred area in California. Lyng gave a
strong message to Indigenous Peoples in the US that they would not receive the same protections
of religious freedom as other citizens, insofar as the compelling interest requirement would not
be accorded to Indigenous Peoples exercise of their religion in public lands. In that case, a
proposed US Forest Service road through lands held sacred by many Northern California tribes
was allowed, in spite of the Forest Service and admission that the road would substantially
burden the spiritual practice, destroying the sanctity of the place.
The [US] government does not dispute, and we have no reason to doubt that the
logging road building project at issue in this case could have a devastating effect on
traditional Indian religious practice. Even if we assume that we should accept the
Ninth Circuits prediction, according to which the G-O Road will virtually destroy
the Indians ability to practice their religion, the Free Exercise Clause only
constrains the government from prohibiting religion, not taking actions which may
make it more difficult to practice religion, but which have no tendency to coerce
individuals into acting contrary to their beliefs. 44

42

See, e.g. Bear Lodge Multiple Use Assn v. Babbitt, 2 F. Supp. 2d 1448, 1449 n.1 (D. Wyo. 1998), aff'd, 175 F.3d
814 (10th Cir. 1999) and Rayellen Resources, Inc. et al. v. NMCPRC, et. al., No.33,497, NM Sup. Ct. In this regard,
please see the specific example of the Sacred Area of Mount Taylor: The Co-Submitters express their support for the
Joint Alternative Report submitted to the 85th Session of the CERD Review of the United States by the Indigenous
World Association and Laguna-Acoma Coalition for a Safe Environment: The Case of Mt. Taylor, a Sacred Cultural
Landscape, submitted on July 21, 2014.
43
See, e.g. discussion of these cases in George Lynge, Ensuring the Full Freedom of Religion on Public Lands:
Devils Tower and the Protection of Indian Sacred Sites, available online at
https://www.bc.edu/dam/files/schools/law/lawreviews/journals/bcealr/27_2/04_TXT.htm
44
Id. at 452.

19

The Supreme Court went on to say, Whatever rights the Indians may have to use the area,
however, those rights do not divest the Government of its right to use what is, after all its land.45
(Emphasis added).
One commentator described the implicit discrimination and violation of human rights in Lyng:
By focusing on the form of impact the challenged government action creates, rather than
the impairment of religious exercise, the Court has drawn a line that discriminates against
American Indian religious practitioners. As a result of the free exercise analysis
developed by the Supreme Court, persons practicing Western religious traditions are
protected from even relatively minor burdens on their religious practices, while American
Indians are not protected from government actions that essentially destroy entire religious
traditions.46
In the San Francisco Peaks case discussed in the Navajo Nation et. al. submission to the 85th
Session of the CERD47, this line of reasoning was repeated by the Ninth Circuit Court of
Appeals.48
In the US, sacred areas, which are ostensibly protected by a variety of laws and the US
Constitution, can be abrogated by lesser interests such as mere programs, policies or overarching
goals like economic development. Please see the enclosed submission on San Francisco Peaks,
Case L in this Report provides additional information regarding this case.
D) Shortfalls in Current US Laws for the Protection of Indigenous Peoples Sacred Areas,
Religious Practices and Cultural Property
The US stated the following in the Common Core Document paragraph 204, submitted to the
CERD for the purposes of their review at the 85th Session:
Within Indian Country, tribes generally have authority over areas of spiritual and cultural
significance, though certain laws of general applicability, such as environmental laws, may
apply. Those areas where tribes have jurisdiction are protected by tribal law and custom. In
addition, United States law provides numerous protections for the rights of Native Americans
as they pertain to areas of spiritual and/or cultural significance that are found on public lands,
including protection of tribal sacred sites under the National Historic Preservation Act,
protection of sacred and cultural sites under the Archaeological Resources Protection Act,
protection of Native American patrimony under the Native American Grave Protection and
Repatriation Act, protections under the American Indian Religious Freedom Act, protections
under the Religious Land Use and Institutionalized Persons Act, and a number of Executive
45

Id.
Scott Hardt, Comment, The Sacred Public Lands: Improper Line Drawing in the Supreme Court's Free Exercise
Analysis, 60 U.Colo.L.Rev. 601, 657 (1989)
47
Many of the issues raised in this report are also addressed in the Alternative Report submitted jointly to the
85th session of the CERD submitted jointly by the Navajo Nation, Havasupai Tribe, Navajo Nation Human Rights
Commission, and International Indian Treaty Council on July 1, 2014, entitled ALTERNATIVE REPORT
REGARDING THE CONTINUED DESECRATION OF THE SAN FRANCISCO PEAKS, A SACRED
AREA. The Co-submitters of this report express their support for the issues and concerns its raises and also
encourage the careful consideration of its recommendations by the CERD members at this session.
46

48

Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1025-26 (9th Cir. 2007).

20

Orders. In addition, the Secretary of Agriculture has statutory authority to accommodate a

range of traditional and cultural purposes of federally recognized tribes on National Forest
System lands, see, e.g., 25 U.S.C. 3051 et. seq.49
Indigenous Peoples confront a complex set of laws when attempting to assert their basic and
inherent human rights to religious freedom, spirituality and culture. Trying to relate multifaceted
Indigenous claims respecting sacred areas as well as the various practices, activities, uses and
deep spiritual relationships with these areas has proven difficult within the set of rigid institutions
and categories of the US legal and political system. The bright line boundaries placed around
legal definitions of "religion" and "culture" have proven nearly impossible to cross for
Indigenous Peoples. Existing laws are inadequate in addressing and accommodating Indigenous
belief, knowledge, spiritual and value systems based on very different world views,
understandings and relationships to sacred and spiritual landscapes from that of the dominant
society which defines the institutions and writes the laws. This section includes a review of laws
specifically enacted to protect Indigenous Peoples as well as other US laws that Indigenous
Peoples have attempted to use, often without success.
The 1978 American Indian Religious Freedom Act (AIRFA), (Pub.L.95-341, 92 Stat. 469, 42
U.S.C. 1996), reviewed in detail by Special Rapporteur Amor, has proven to be ineffectual as a
means of substantive protection for Indigenous Peoples. Suzan Harjo, President of The Morning
Star Institute described the manner in which AIRFA was curtailed at its inception in her
testimony before the Special Rapporteur on the Rights of Indigenous Peoples in 2012:
[W]hen the U.S. Congress was enacting the American Indian Religious Freedom Act
(P.L.95-341, August 11, 1978), the U.S. Agriculture Department and its Forest Service
were allowing a logging road to cross a Native ceremonial area in Northern California and
did not want AIRFA to create a cause of action for the Native religious practitioners to
defend the sacred place. USDA and FS officials approached the Chairman of the House of
Representatives Agriculture Committee and asked him to carry their water, which he did
by threatening to kill the bill, unless the Interior Committee Chairman stated that AIRFA
had no teeth to protect Native sacred sites; and the Interior Chairman made that statement
and AIRFA passed and was signed into law.
Ten years later when the resultant litigation reached the U.S. Supreme Court, [the Lyng
case] it cited that House floor colloquy as evidence that AIRFA was not a cause of action
to protect Native American sacred places and declared that the U.S. Constitutions 1st
Amendment freedom of religion clauses do not provide a right of action for sacred places;
the high court further stated that, if Congress wants one, it would have to enact a special
statute for that purpose. Congress has not enacted such a statute and no Administration
has asked it to do so.50

49

Common core document forming part of the reports of States parties, United States of America [30 December
2011] HRI/CORE/USA/2011 (12 September 2012) at page 49
50
Statement of Suzan Shown Harjo, President, The Morning Star Institute, on the significance of the United Nations
Declaration on the Rights of Indigenous Peoples in the Areas of Language, Culture and Sacred Sites, for the
Conference and Consultation with the United Nations Special Rapporteur on the Rights of Indigenous Peoples,
university of Arizona Rogers College of Law, Tucson, Arizona, April 27, 2012, p. 1

21

In response to another well-known case denying religious freedom protection, Employment

Division, Department of Human Resources v. Smith,51 Congress enacted the Religious Freedom
Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb to 2000bb-4. The Act was supposed to
reverse the Smith decision, restoring a standard whereby the government cannot burden a
persons exercise of religion even if the burden results from a rule of general applicability unless:
(1) that burden is in furtherance of a compelling government interest and (2) is the least
restrictive means of furthering that compelling interest. The effectiveness of this Act was also
curtailed in a case that made it inapplicable to state actions, so that it applies only to US
government actions. In the San Francisco Peaks case it proved ineffectual as well.52
In 1990, in response to years of lobbying and pressure from Indigenous Peoples and their
representatives, the US Congress passed the Native American Graves Protection and Repatriation
Act, 25 U.S.C. 3001 et seq. (Nov. 16, 1990). It prohibits trade, transport or sale of Native
American human remains and directs federal agencies and museums to take inventory of any
Native American or Native Hawaiian remains and, if identifiable, the agency or museum is to
return them to the tribal descendants. Enforcement of the Act has been problematic, to say the
least. Indigenous Peoples have responded strongly and demanded legal protection against
desecration of sacred grounds and human remains. Suzan Harjos testimony before Special
Rapporteur Anaya also addressed the US failings in implementation of NAGPRA:
This sorry record is documented by the U.S. Government Accountability Office in its July
2010 Report, the title of which reveals the GAOs conclusion, Native American Graves
Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have
Not Fully Complied with the Act. The GAO Report details federal agencies high rates
of failures to provide inventory notices, consult with tribes or actually repatriate human
remains or funerary items. For more than a decade, the national NAGPRA office would
not provide inventories and other material to Native Nations, particularly with respect to
the culturally unidentifiable human remains, most of which were identifiable by tribal
researchers with access to the relevant documents that were being withheld.
The NAGPRA rule on culturally unidentified human remains and associated funerary
objects mandates return of human remains, but purports to allow museums and other
holding repositories to keep funerary objects associated with those remains, thus
separating the deceased person from the items he or she was buried with, which are the
property of the deceased in cultures and laws throughout the world. What the NAGPRA
office has done is to tell Native Peoples that we can rebury grandma, but her moccasins,
clothes, jewelry and other precious items that should be reburied with her now belong to
the repositories that received the contraband directly or indirectly from the very thieves
who robbed her grave.53
In May 1996, President Clinton signed Executive Order 13007: Indian Sacred Sites. This
Executive Order directs federal agencies to protect American Indian sacred sites, including to
accommodate access to and ceremonial use of Indian sacred sites by Indian religious
51

Smith, supra.
See discussion on origins of RFRA in Joshua A. Edwards, Yellow Snow on Sacred Sites: A Failed Application of
the Religious Freedom Restoration Act, 34 Amer. Ind. L. Rev. 1, pp. 151-169 (2010).
53
Ibid at pp.4-5. This rule, adopted on May 12, 2010, is codified at 43 CFR 10.11(c)(4)
52

22

practitioners on federal land. The order also directs agencies to avoid adversely affecting the
physical integrity of such sacred sites by providing notice of proposed activities that may impact
sacred sites identified by a tribe or authorized individual representing an Indigenous religion.
However, similar to AIRFA, the US government has limited its applicability and impact. Section
4 of the Order states:
This order is intended only to improve the internal management of the executive branch and is
not intended to, nor does it, create any right, benefit, or trust responsibility, substantive or
procedural, enforceable at law or equity by any party against the United States, its agencies
officers, or any person.54
(E) Consultation Under the US Legal Framework does not include Free, Prior and Informed
Consent
It is consistently clear that the range of supposed protections for sacred areas in US law and
policy do not afford Indigenous Peoples the right of free prior and informed consent when it
comes to activities that threaten their sacred areas and therefore do not ensure their rights under
Article 5 of the ICERD.
US limitation relegation of the right to Free Prior and Informed Consent to a process of
consultation is discussed in section E of this Report. Despite US claims to the contrary,
including in its current report to the Committee and response to the Committees question re:
FPIC in paragraph 27, implementation of Executive Order 13175 on Consultation and
Coordination with Tribal Governments has not effectuated the provision of substantive
protections to Indigenous Peoples required to ensure effective protection of Sacred Areas. While
it mandates agencies to put in place plans and processes for input from federally recognized tribes
where they are impacted by policy development, it also contains limitations: the parties are
limited to federally recognized tribes and federal agencies (who may or may not have appropriate
plans in place); the role of tribes in a consultation process is limited to timely input; and
consultation is limited to policy development.
(F) Other Relevant US Laws Continue the Pattern
Beyond US legislation directly related to Indigenous Peoples, other laws are designed to preserve
and protect historic places and areas in general. While some Indigenous sacred areas and places
have been designated as traditional cultural properties under these laws at the US federal and
state level, they have consistently been challenged by private interests. Consultation required
under these laws has also fallen far short of the standard provided by Free Prior and Informed
Consent.
These include the National Historic Preservation Act, the National Environmental Protection Act,
the Archaeological Resources Protection Act, the Endangered Species Act, the Clean Water Act,
and the Clean Air Act. 55
The National Historic Preservation Act (NHPA)56 provides some measure of protection for areas
of historical significance on public lands, and the National Environmental Protection Act
54

61 Fed. Reg. 26,771 (1996).

The US includes some of these laws in its response to Issue No. 27 presented by the Committee. For the purposes
of this Report, only the first two of these laws are discussed in detail. The submissions refer to all of these laws.
56
16 U.S.C. 470 to 470x-6, 1966.
55

23

(NEPA)57 provides a process for evaluation of potential adverse effects on public lands when a
federal undertaking is proposed. NHPA Section 106 requires agencies to consult with potentially
affected parties prior to commencing a federal undertaking that may affect National Registereligible property and to consider the undertakings effect on such property. With regard to sacred
places and areas on public lands, Section 106 require that federal agencies, including the Bureau
of Land Management, consult with Indian tribes and Native Hawaiian organizations prior to
granting permits for activities that may affect properties of traditional religious or cultural
significance to Indigenous Peoples.58
Like NHPAs Section 106, NEPA requires federal agencies to consult with parties that may be
affected by proposed federal projects, except that NEPA applies to the environment rather than
historic sites. NEPA requires agencies to evaluate environmental and social impacts, and this
assessment includes analysis of ecological . . . aesthetic, historic, cultural, economic, social, or
health [impacts] whether direct, indirect, or cumulative.59
As noted earlier in this Report, a major shortcoming in all of these Acts is that they apply only to
federally recognized Tribes, thereby leaving out protection for many Indigenous Peoples in the
US. Moreover, Indigenous Peoples and expert commentators have expressed dismay at the lack
of protections these two acts in particular offer for Indigenous sacred sites, areas and places:
Critics have therefore denounced NHPA as mere window dressing for Native Americans
trying to save their sacred sites because it includes no provisions which Native
Americans can use to stop the imminent destruction of their land and sacred sites, or to
force the abandonment of a project which threatens significant historic property.
Likewise, critics point out that NEPA does not require agencies to adopt the least
environmentally or culturally harmful alternative. Therefore, although challenges to
the sufficiency of an agencys environmental impact assessment may lead a court to
invalidate agency actions all that is required is a thorough reevaluation of environmental
impacts before the challenged actions are able to resume.60
In a very current example, the US government is in effect forcing consent of Tribal governments
for the Keystone XL Pipeline project. Under NHPA, section 106, the consulting agency is
responsible to determine what sorts of parties must sign a Programmatic Agreement (PA), and a
permit for the project will be subject to any conditions in the PA. If Tribes do not sign on as
concurring parties, they will not have standing to object during the time when the PA is carried
out. The right to object under this provision is reserved for signatory parties and concurring
parties, so Tribes are being forced to sign on as concurring parties or risk losing all rights to
address compliance with the PA including the protection of sacred areas and dispute resolution.
Yet, by signing on to the PA, they would indicate their consent to its terms, which were
developed without their consultation.61
57

42 U.S.C. 43214370 (2006).

42 U.S.C. 470a(d)(6)(B)(2006) and 36 C.F.R. 800.2(c)(2) (2011).
59
40 C.F.R. 1508.8 (1977).
60
Kinnison, A. J. (2011). Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N.
Declaration on the Rights of Indigenous Peoples. Arizona Law Review, 1301-1332.
61
This information was provided by Jennifer Baker, Contributing Attorney
58

24

(G) Conclusion: A Way Forward

It may be helpful for the Committee, and the US, to recall that the US has been provided with the
elements for a very different framework in order to move past the historic pattern of injustice,
disenfranchisement and discrimination which runs through the history of US law and
jurisprudence regarding Indigenous Peoples. The UN Rapporteur on the Rights of Indigenous
Peoples recommended the following way forward for the US:
Measures of reconciliation and redress should include, inter alia, initiatives to address
outstanding claims of treaty violations or non-consensual takings of traditional lands to which
Indigenous peoples retain cultural or economic attachment, and to restore or secure Indigenous
peoples' capacities to maintain connections with sacred sites, areas and places of cultural or
religious significance, in accordance with the United States international human rights
commitments.62

5. Proposed Questions and Recommendations for the United States

We reiterate and the support the very relevant question already presented to the US by the
Committee in its paragraph 27 63and urge the Committee to revisit this question in light of the
information presented in this Indigenous Peoples Joint Alternative Report:
1. Please provide information on measures taken to guarantee the protection of
Indigenous Sacred Areas as well as to ensure that Indigenous Peoples are
consulted and that their free, prior and informed consent is obtained regarding
matters that directly affect their enjoyment of rights under the Convention in
areas of spiritual and cultural significance. (re-statement of conclusion and
recommendation 29 of the CERD/C/USA/CO/6)
Finally, we submit the following recommendations to the Committee for consideration in their
review and Concluding Observations regarding the United States report:
1. That the US implement the UN Declaration on the Rights of Indigenous Peoples
fully and without qualification, and use it as a guideline for interpretation and
implementation of the ICERD regarding Indigenous Peoples sacred areas, places
and sites, including those of Indigenous Peoples who are not federally
recognized;
2. That the US bring its national policies and laws into conformity with the
provisions of the ICERD and UNDRIP regarding Self-determination, Rights to
Lands and Resources, Subsistence and Free Prior and Informed Consent;
3. That the US implement laws and policies that fully respect freedom of religious
practice, culture and spiritual belief for Indigenous Peoples in accordance with
their international human rights obligations, enforce an absolute legal
prohibition of the desecration of sacred areas, and provide provisions for their
protection;
62

Conclusions and recommendations, Report of the Special Rapporteur on the Rights of Indigenous Peoples, The
situation of Indigenous Peoples in the Unites States of America, 30 August 2012, A/HRC/21/47/Add.1, para 90.
63
List of issues in relation to the fourth periodic report of the United States of America (CCPR/C/USA/4 and Corr.
1), adopted by the Committee at its 107th session (1128 March 2013), April 29, 2013, para 27.

25

4. That the US establish a national-level body for oversight and implementation of

the US human rights obligations, including the provisions of International
Human Rights Treaties and Declarations, Treaty Body recommendations and
Nation-to Nation Treaties with Indigenous Peoples, with the full and effective
participation of affected communities, Indigenous Peoples and Nations.

26

Section II: Case Submissions (in alphabetical order)

Case A: Amend the American Indian Religious Freedom Act and the Haskell Wetlands Walkers
Student Organization
AmendAIRFA.org/Contact: Millicent Pepion, Founding member and Petition Oversight
Coordinator/ Admin@AmendAIRFA.org
Issue: To Protect a Sacred Place from future highway construction projects
The sacred Wakarusa Wetlands are located just south of Haskell Indian Nations Universitys
campus in Lawrence, Kansas. Since Haskells inception, as an off reservation Indian boarding
school, the school has accommodated students from over a 100 different Nations each year. In
its earliest years Haskell students were forced to forgo their religious practices and languages and
to learn the Christian way. The Wakarusa Wetlands has always served as a spiritual sanctuary
for Haskell students to pray, perform ceremonies, practice their languages, harvest traditional
medicinal plants, and meditate.
The area was the original homeland of the Kaw Indigenous Nation. The Kaw were forcibly
removed to Indian Country (modern day Oklahoma) by the US government under the Indian
removal Act in the early 1800s. The Haskell students of today also hold this place to be sacred
in their honor, as well as in honor of the Indian students who were forced to attend Haskell in the
previous two centuries, many whom are still missing from that time period and are believed to be
buried in the wetlands.
These wetlands are not just sacred to humans either. There are over 435 different plants and
shrubs that have been documented and studied by Haskell students over the years. In addition,
over 235 different migratory birds counted that have passed through the wetlands annually since
the late 1980s. Finally, because these wetlands are clay based they are able to absorb and store
large quantities of water produced by floods when the Kansas River or Wakarusa River spill over.
This area is sacred to people, plants, animals, and water systems.
Sadly, in October of 2013 these sacred wetlands will be destroyed in order to make way for a
bypass freeway local lawmakers feel is needed to accommodate the growing population. This
comes after a twenty year court battle with the City of Lawrence, Douglas County, and the
Kansas Department of Transportation put forth by Haskell students in an effort stop the freeway
from being built.
This is a spiritual issue. AmendAIRFA.org members believe that Congress needs to address
specific legislation to protect sacred places in an inclusive manner for all people whom those
places affect. We declare that mutual respect and dignity be given to Native peoples in concerns
that affect our home communities. We respectfully request that the U.S. government adhere to
our cultural, social, medical, environmental, and spiritual interests of which AmendAIRFA.org
members seeks to protect.
Haskell wetlands walkers evolve in to AmendAIRFA.org pioneers
Last year, a group of Haskell students, and students from other universities, walked from the
Wakarusa Wetlands to Washington DC to raise awareness about the need to protect the Wakarusa

27

Wetlands, and all sacred places across Indian Country. Sadly, it was during an election year and
no one from Congress would come near this issue. With construction of the freeway underway
those same students feel now is a good time to bring this issue back up with Congress to protect
future scared places form being desecrated.
The students have in possession a draft piece of legislation that can amend the American Indian
Religious Freedom Act to provide a right of action for the protection of Native American sacred
places. The spirit of the United Nations Declaration of the Rights of Indigenous Peoples
encourages Native communities to stand up for what they believe in. We believe that a balance
between Native science and Western science can be achieved for the betterment of all life.
We believe now is the time to amend the American Indian Religious Freedom Act to include the
protection of Native American sacred places. Our past may be lost but our future is continuing on
and will continue on forever. Holy sites such as the Wakarusa Wetlands should be saved for
future generations of all peoples, plants, animals, and water systems to thrive.
Case B: The Sacred Black Hills (Paha Sapa) And The 1868 Ft. Laramie Treaty,
Submission by the Birgil Kills Straight (bkillsstraight@yahoo.com), Lakota Treaty Council, and
the International Indian Treaty Council: Bill Means (bill.means73@live.com) and Danika
Littlechild (danika@treatycouncil.org)
The sacred meaning and significance of the Black Hills (the Paha Sapa) to the Lakota can best be
expressed in the traditional understandings and teachings of the elders. Following is the
explanation of their sacredness presented to IITC for this submission by Lakota elder Birgil Kills
Straight on August 27th, 2013, on behalf of the Lakota Treaty Council:
"What I have to say about the Black Hills will be easy but I will make it short. This is a
part of Lakota Creation Story:
In the beginning, inyan (stone) gave life to wi (sun); we have winyan (woman) and
everything that we see on earth today, came from that woman. We call her the "sacred life
giver." In the First World it is the Spirit World. The Second World is "Wahutekan Oyate
makoce" (Root Nation world) where our spirits were in the vegetation when no other form
of life existed. In the Third World, we lived as "Wahu Topa oyate" (Four-legged Nations),
we were the buffalo people. Today, we live in the Fourth World which is the "Wahu Nupa
makoce" (Two Legged Nations/world). After this world, we will return to the Fifth World
(the Spirit World) where we came from.
When the Black Hills first appeared, it is within the Sun Dance Sea or some say Pierre
Sea when water extended from the Arctic to the Gulf of Mexico. We came out of the Black
Hills, from a hole in the ground, as Buffalo people in the Third World. We as Lakota
originated in the Black Hills. Even among pre-Christian white people, the Black Hills is
the entry way into heaven. For these and other reasons, Lakota call the Black Hills
Sacred."
The Black Hills (He Sapa) are the sacred place of Creation for the Lakota. The protection of the
Black Hills is an ancient, inherent and sacred responsibility for the Lakota, and was the central
component of the Treaty the Lakota Nation made with the US settler government in 1868 known
as the Ft. Laramie Treaty. Bills Means, Oglala Lakota, IITC Board member and co-founder
28

explains that the Black Hills means as much to the Lakota as the Vatican means to Roman
Catholics or Jerusalem means to Christians, Muslims and Jews.
The sacred Black were confiscated by in response to the discovery of gold only 6 years after they
were recognized by the United States ratification of the Fort Laramie Treaty with the Lakota
Nation as belonging to the Lakota (Sioux) in perpetuity.
In his Final Report, the Special Rapporteur on Treaties, Agreements and other constructive
arrangements between States and Indigenous Peoples Miguel Alfonso Martinez found the
following with regard to obvious and serious violations of the legal obligations undertaken by
State parties:64
Probably the most blatant case in point is the United States federal Governments taking
of the Black Hills (in the present day state of South Dakota) from the Sioux Nation during
the final quarter of the nineteenth century.
The lands which included the Black Hills had been reserved for the Indigenous nation
under provisions of the 1868 Fort Laramie Treaty. It is worth noting that in the course of
the litigation prompted by this action, the Indian Claims Commission declared that A
more ripe and rank case of dishonorable dealing will never, in all probability, be found in
our history and that both the Court of Claims, in 1979, and the Supreme Court of that
country decided that the United States Government had unconstitutionally taken the Black
Hills in violation of the United States Constitution.
However, United States legislation empowers Congress, as the trustee over Indian lands,
to dispose of the said property including its transfer to the United States Government.
Since the return of lands improperly taken by the federal Government is not within the
province of the courts but falls only within the authority of the Congress, the Supreme
Court limited itself to establishing a $17.5 million award (plus interest) for the Sioux. The
Indigenous party, interested not in money but in the recovery of lands possessing a very
special spiritual value for the Sioux, has refused to accept the monies, which remain
undistributed in the United States Treasury, according to the information available to the
Special Rapporteur.65
In 1980, the United States Supreme Court found that the US Government was guilty of "... a
pattern of duress ... in starving the Sioux to get them to agree to the sale of the Black Hills" 66
also noting the finding of the Court of Claims that a more ripe and rank case of dishonorable
dealing will never, in all probability, be found in the history of our nation.67
Despite clear acknowledgement of illegal wrongdoing by the US Supreme Court over 30 years
ago, these illegally-confiscated Treaty lands have not been returned, and gold mining continues in
64

Study on treaties, agreements and other constructive arrangements between States and Indigenous populations,
Final report by Miguel Alfonso Martnez, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1999/20, 22 June 1999,
paragraph 275.
65
Id, at para. 276
66
United States v. Sioux Nation, 207 Ct. Cl. 234 at 241, 518 F.2d 1298 at 1302 (1975), cited in United States v.
Sioux Nation of Indians, 448 U.S. 371 at 388 (1980).
67
Ibid.

29

the Sacred Black Hills in violation of the Lakota Nations religious practice, cultural rights and
Treaty recognized right to Consent.
Case C: Chickaloon Native Village
Contact: Lisa Wade, Council Member and Health & Social Services Director P.O. Box
1105 Chickaloon Village Traditional Council
There are three primary sacred sites presently impacted by coal mining activities of three distinct
corporations within our sacred, traditional and customary use areas.68
The first is at Tsidek'etna' 'Grandmother's Place Creek' or Moose Creek and Chidaq'ashla Bena
'Lake of Grandmother's Little Place' or Wishbone Hill. The second area is Ts'es Taci'ilaexde
'Where Fish Run Among Rocks' or Eska Creek in Sutton. The third area is Hnu Ch'k'el'iht 'where
we do work' or Castle Mountain in Chickaloon. All of these sacred sites are within the Matanuska
River watershed in southcentral Alaska.
Our Tribal identity is intrinsically bound to, and inseparable from, our relationship with the areas
impacted by these coal leases including the water, the animals, plants, air, soil and sun. Hunting,
fishing, picking berries, and other cultural and traditional activities are not just techniques for
surviving the harsh climates of the north, they are part of a spiritual, symbiotic relationship that is
our Indigenous way of life. They are ceremony for us and only possible with abundant clean
water and healthy habitat for the moose and salmon to thrive. These are sensitive areas where
traditional and customary activities have taken place for thousands of years. These include
potlatch hunting and gathering, rights of passage, and burial places of our ancestors.
Presently, two of the sacred areas are gated off restricting access to Tribal citizens. Exploration
activities, vast roadways are being constructed through berry picking areas and cultural resource
areas without consultation or consent of Chickaloon Native Village. Drilling activities are taking
place during the prime hunting season even after Riversdale Alaska indicated that they would not
be drilling at this crucial time for our hunters. Rites of passage for our young hunters are being
delayed or they are being rerouted to less familiar areas putting our young men at risk.
Three coal leases cover more than 20,000 acres of land along the base of the Talkeetna
Mountains paralleling the Matanuska River watershed in south central Alaska approximately one
hour northeast of Anchorage, Alaska's largest city. These leases are immediately adjacent to
numerous residential communities including our low income Tribal housing. Also impacted is
our Tribal school, traditional and cultural use hunting and gathering areas, and salmon streams
for which the Tribe has invested more than $1,000,000 and thousands of hours to restore after
past coal mining activities. Those past activities extend to the early 1900s, when the discovery of
coal brought hundreds of miners with one of the main beneficiaries being the US Navy.69
68

In April of 2012, Professor James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous
Peoples visited Alaska and Chickaloon Native Village to hear testimony from Tribal citizens and Council Members
describing these issues. A special Communication to the UN Special Rapporteur on the Rights of Indigenous Peoples
was introduced. This Communication provides more detail and should be read along with this submission. See:
Chickaloon Village Tribal Council Communication to the UN Special Rapporteur on the Rights of Indigenous
Peoples, Mr. James Anaya, dated April 19, 2012, Found online at: http://cdn6.iitc.org/wpcontent/uploads/12.4.19-CVTC-Coverletter-and-communication-to-SR-Anaya-web2.pdf
69
Ibid., at pages 1-5

30

Threats to our way of life are cumulative in nature as approximately 20,000 acres of land in our
customary and traditional use areas have been leased for coal exploration and extraction.
Damages to this vast land base could be reduced to barren rubble as some previous coal mine
sites in the area already demonstrate. These are sensitive areas where traditional and customary
activities have taken place for thousands of years. These include potlatch hunting and gathering,
rites of passage, and burial places of our ancestors.
Threats to human health are numerous. Already Tribal citizens are experiencing increased rates
of stress, depression, and anxiety over access to sacred sites being denied, over the community
divide created by coal mine politics created by Usibelli Coal Mine Inc., Riversdale Alaska, and
Ranger Alaska, and racial discrimination towards Tribal citizens voicing their concerns.
Another threat to our sacred sites is the failure of the State of Alaska as well as the U.S. Federal
government to protect our sovereign rights and interests, and the failure of consultation
guaranteed by the U.S. Federal government70, based upon the government-to-government
relationship, the self- determination of recognized Indian Tribes, and the Trust Relationship.
With Statehood, Alaska received title to large tracts of Chickaloon Native Village traditional
lands in the heart of their community. The Alaska Mental Health Trust Authority (AMHTA)
received surface and subsurface title to much of these lands, including lands near the Native
Villages of Chickaloon and Tyonek, as well as surrounding Wishbone Hill. Although the
enabling statute promised not to interfere with pre-existing rights and title, Alaska Native rights
including subsistence, water and occupancy have not be given any consideration by the AMHTA
or DNR. With the passing of the Alaska Native Claims Settlement Act (ANCSA), Chickaloon
Native Village was left completely stripped of aboriginal title from all its traditional lands.
Chickaloon Native Village was left to the mercy of the State of Alaska and AMHTA, neither of
which even recognized Chickaloon Native Villages existence or right of self-determination.71
As such, the federal construct of consultation, limited as it is, and the requirements of good faith
consultations, the government to government relationship and the trust relationship are
apparently not required of Alaska in spite of the fact that Alaskas authority to regulate coal
mining is delegated from the federal government. Since Alaska does not recognize the existence
of Chickaloon Native Village, it refuses to consult, or exercise even a minimal duty of care. By
delegating power to Alaska, the United States federal government has virtually washed its hands
of its trust responsibility to Tribes.
Human rights are at serious risk of being diminished by State of Alaska leaders and legislative
initiatives. Not only has Governor Parnell challenged laws supporting rural subsistence hunting
and fishing, several bills in the House of Representatives and Senate have recently been
introduced which will have dire consequences for Alaskas indigenous peoples.

70

Ibid. at pages 7-9, in reference to the requirement for Free, Prior and Informed Consent under the UN Declaration
on the Rights of Indigenous Peoples; Executive Order 13175 (2000) Consultation and Coordination with Tribal
Governments; Section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. Section 470f requiring
federal agencies to consult with any Indian Tribe attaching religious or cultural significance to historic properties.
71
Ibid. at pages 1-2

31

On January 8, 2013, Alaska State Governor Sean Parnell introduced legislation related to the
Alaska Land Act.72 The legislation was aimed specifically at streamlining State of Alaska
Department of Natural Resources (DNR) permitting processes. It was drafted without formal
government consultation with the 229 federally recognized Tribal Governments in the State of
Alaska. Furthermore, it was designed in such a manner as to reduce public participation in
permitting actions and strip away vital existing public rights resulting in potentially devastating
impacts to subsistence food sources and cultural and spiritual practices.
Provisions of the legislation grant the Commissioner of the DNR ultimate authority to ignore
any other provision of law and to grant general permits authorizing any activity on state land
that the commissioner decides is unlikely to result in significant AND irreparable harm to state
land or resources. It neglects to adequately clarify and describe irreparable harm. Other
provisions narrow how the public can participate in, and appeal, DNR decisions as well as
requires that the public bare the burden of showing how they have been substantially and
adversely impacted by DNR permitting decisions in order to take legal action. Two other pieces
of legislation are pending designed which would limit public participation on large industrial
projects and require bonds for challenging these projects.
One provision of great concern to Chickaloon is the stripping away of the existing right of Tribes
to file for in-stream flow or water reservations. Chickaloon has had an existing application on file
with the State of Alaska for Moose Creek since 2009. This application is part of Chickaloons
ongoing remediation efforts to enhance and protect vital salmon rearing habitat in our traditional
and customary use area after previous coal mining operations damaged critical salmon habitat.
Should this legislation pass the Senate, our application on file would be thrown out and we would
loose the ability to ensure that our sacred salmon and moose have adequate water reserves in
which to survive.
House Bill 77 passed the House of Representatives on March 4, 2013; however, it stalled in the
senate after Tribal and public opposition. It is presently being considered in the current legislative
session. If passed, this legislation is an assault on the human rights of Alaskas indigenous
peoples and our Tribe. The impacts would manifest as resource extraction projects were
expedited with limited recourse for protecting our traditional and customary use areas and our
people from these projects.
House Bill 77 stalled out during the legislative session due to the overwhelming opposition by
federally recognized Tribes in the state of Alaska who produced more than 40 resolutions in
opposition to this legislation. Unfortunately, it is very likely that this legislation will be
repackaged and introduced again during the next session once again without free prior and
informed consent/adequate consultation with Tribal governments.
In June, the State of Alaska approved an air quality permit for Wishbone Hill utilizing outdated
monitoring equipment from the 90s and modeling data from more than 30 miles away from the
coal lease area. These practices were called into question by numerous experts and went largely
ignored by the State of Alaska. The information including the impacts to access of sacred sites for

72

The Alaska State Legislature http://www.legis.state.ak.us/basis/get_bill.asp?bill=HB%20%2077

32

potlatch hunting and subsistence uses also went ignored by the State of Alaska as presented by
Chickaloon Village Traditional Council.
The State of Alaska continues to deny Tribal sovereignty to the extent that they neglect
consultation on issues impacting the health and human rights of Tribal citizens. There have been
no steps taken by the State of Alaska to remedy these concerns.
Case D: Gwichin Nation Native Village of Venetie Tribal Government
Contact: Faith Gemmill, 456 N.Alaska St. Palmer, AK 99645 Tel: 907-750-0188 Email:
redoil1@acsalaska.net
Located in the Northeast Corner of Alaska73, is the 1002 area: Coastal Plain of the Arctic
National Wildlife Refuge, Iizhik Gwatsan Gwandaii Goodlit, understood by the Gwichin
Nation as The Sacred Place Where Life Begins.
The Gwichin Nation is composed of fifteen villages strategically located along the migratory
route of the Porcupine Caribou Herd in Northeast Alaska and Northwest Canada. The
relationship with the Caribou has existed since time began. For the Gwichin, a long-term
decline in the herds population or a major change in its migration would be devastating. The
Porcupine Caribou Herd provides the Gwichin Nation with their food security and represents
80% of their traditional diet. For thousands of years, the Gwichin have depended on the animal
for Physical, Cultural, Spiritual, Social and Economic means. The Gwichin creation story tells
of a time when animals had human characteristics, then there was a split between the animal and
human...humans came to be. In the story it is said that Gwichin came from the Caribou. There
was an agreement between the two, from that time on the Caribou would retain a part of the
Gwichin heart and the Gwichin would retain a part of the Caribou heart. In a spiritual sense the
Gwichin and Caribou are one, if there is harm to one, the other will also be harmed. Reliance on
traditional and customary use (now termed subsistence) of the Porcupine Caribou Herd is a
matter of survival. Beyond the importance of our basic needs, the caribou is central to our
traditional spirituality. Our songs and dances tell of the relationship that we have to the caribou.
The caribou is a part of us.
When the herd nears a village on its annual migration to the Coastal Plain, the entire Gwichin
community prepares to harvest food for the year. During the harvest, the Caribou are also central
to the social fabric of the Gwichin. The Gwichin use their vast store of traditional knowledge
and take the opportunity to pass on that knowledge along with Gwichin cultural values to the
younger generation.
This is the time when the life lessons are taught to the younger generation of the Gwichin people.
The women and grandmothers teach the younger women and girls very important traditional
skills. The girls are taught the proper names of the animal parts and proper methods of taking
care of the meat. They also learn the techniques for tanning the hides for clothing, what part of
the animal is used for certain tools, such as needles, hooks, tanning tools and sinew. The elder
women tell the younger ones of the family lineage and ties. It is an important time of learning the
functions of the women of the tribe.

73

See Special Attachments: Map

33

The men and grandfathers teach the hunting skills needed: the methods of stalking and taking the
animal, the value of sharing what is taken, the names and memory of the hunting lands and
lessons of timing. The young are taught to handle the kill with great care and respect, and to give
proper thanks to the Creator for the gift. This teaches the young men of their responsibility to the
tribe as a provider.
The connection between the Gwichin and the caribou continues today, as the Porcupine Caribou
Herd continues to provide the Gwichin with basic necessities.
Today, Gwichin community members continue to rely on the caribou to meet both their
subsistence and spiritual needs. The hunting and distribution of caribou meat also enhances their
social interaction and cultural expression. Caribou skins are used for winter boots, slippers,
purses, bags, and other items of Native dress. Bones continue to be used as tools. Songs, stories,
and dances, old and new, reverberate around the caribou further strengthening Gwichin spiritual
ties to the Caribou.
There is also a spiritual belief of the people, the elders stated that the Gwichin must seek
protection of the calving and post calving grounds of the Porcupine Caribou Herd, they must Do
It In A Good Way and they will be successful. They were also told by the elders that as they go
forward protecting The Sacred Place Where Life Begins: 1002 area, Coastal Plain of the Arctic
National Wildlife Refuge, they must relay that this fight is for all humanity. If ever the area is
opened up for development it will begin a cycle of destruction for all humanity. In essence the
Gwichin struggle is for all life to continue.
In the 1950s, post-war construction and accelerating resource development across Alaska raised
concerns about the potential loss of this region's special natural values. In 1952-53, government
scientists conducted a comprehensive survey of potential conservation areas in Alaska. Their
report, "The Last Great Wilderness," identified the undisturbed northeast corner of Alaska as the
best opportunity for protection. Two major consequences followed:
1. In 1957, Secretary of Interior Fred Seaton of the Eisenhower Administration revoked the
previous military withdrawal on 20 million acres of the North Slope of Alaska to make it
available for commercial oil and gas leasing. This was in addition to the previously
established 23 million acre Naval Petroleum Reserve.
2. In 1960, Secretary Seaton designated 8.9 million acres of coastal plain and mountains of
northeast Alaska as the Arctic National Wildlife Range to protect its "unique wildlife,
wilderness and recreation values."
These two actions laid out a general land use pattern for northern Alaska by setting aside about
43 million acres for multiple land uses including oil and gas development, while the northeastern
corner was protected for wildlife and wilderness conservation.
The U.S. House of Representatives passed legislation in 1978 and 1979 designating the entire
original Range, including the now contested arctic coastal tundra, as Wilderness. The Senate's
version, however, required studies of wildlife and petroleum resources, and the potential impacts
of oil and gas development within the northern part of the Range. It postponed the decision to
authorize oil and gas development or Wilderness designation. Differences between the House and
Senate were not worked out by a conference committee in the usual manner. Instead, following
34

the 1980 election, the House accepted the Senate bill and President Carter signed Alaska National
Interest Lands Conservation Act (ANILCA) into law. ANILCA doubled the size of the Range,
renamed it the Arctic National Wildlife Refuge, and designated most of the original Range as
Wilderness.
The part of the original Range that was not designated Wilderness was addressed in Section 1002
of ANILCA, and is now referred to as the "1002 Area." Section 1002 outlined additional
information that would be needed before Congress could designate the area as Wilderness, or
permit oil development. Studies of the 1002 Area included a comprehensive inventory and
assessment of the fish and wildlife resources, an analysis of potential impacts of oil and gas
exploration and development on those resources, and a delineation of the extent and amount of
potential petroleum resources. In Section 1003 of ANILCA, Congress specifically stated that
the "production of oil and gas from the Arctic National Wildlife Refuge is prohibited and
no leasing or other development leading to production of oil and gas from the [Refuge] shall
be undertaken until authorized by an act of Congress."
Since then, the 1002 area of the Arctic National Wildlife Refuge has been a hot button issue,
highly controversial when a bill comes forward in the House of Representatives or the US Senate.
The Gwichin seek permanent protection of the 1002 are of the Arctic National Wildlife Refuge.
This political position was affirmed at the Gwichin Nintsyaa Gathering in 1988, and re-affirmed
at the most recent Gwichin Gathering in 2012 by resolution:
NOW THEREFORE BE IT RESOLVED: That the United States President and Congress
recognize the rights of the Gwichin People to continue to live our way of life by prohibiting
development in the calving and post-calving grounds of the Porcupine Caribou Herd; and
BE IT FURTHER RESOLVED: That the 1002 area of the Arctic National Wildlife
Refuge be made Wilderness to protect the sacred birthplace of the caribou.
Every year there is an effort in the State of Alaska or in the US Congress to access the Coastal
Plain of the Arctic National Wildlife Refuges by pro-drilling forces. The most recent effort is by
Alaska Governor Sean Parnell who on May of 2013 escalated his fight with the Obama
administration over potential oil drilling in the Arctic National Wildlife Refuge by formally
submitting a plan to conduct seismic research in the region.74
No Free Prior and Informed consent has been ensured in the case of the Gwichin and The Arctic
National Wildlife Refuge. As cited above, the laws that govern the land now rest in an act of the
United States Congress to either open the area to oil and gas development or protect it
permanently as wilderness. The Gwichin have consistently called upon the US to affirm
permanent protection, despite this, there is always new pressure to gain access to the 1002 area of
the coastal plain of the Arctic National Wildlife Refuge.
Case E: Gila River Arizona Freeway (South Mountain Loop 202)
Gila River Alliance for a Clean Environment (GRACE) Submission on the Issue of the Arizona
Freeway (South Mountain Loop 202) Through Sacred Mountains that would cause Major and
Disparate Cultural Impacts to the Gila River Indian Community (GRIC) Tribal Members of
74

See: http://www.adn.com/2013/05/20/2909179/state-pushes-offer-to-help-pay.html See also:

http://www.adn.com/2010/12/06/1591148/battle-over-anwr-begins-heating.html

35

Arizona and Violate their Rights to Self-Determination, to Maintain their Distinct Cultural
Identities and Connections with their Traditional Lands, and their Free Prior and Informed
Consent.
As an Akimel Oodham woman, I regard Muhadeg (South Mountain) as a place of
spiritual significance to the Oodham tribes. The mountain is central to the Oodham
creation story and continues to be a place to hold ceremonies by and for the Oodham
people. The mountain is also sacred to us because of the plant life we use for medicinal
and ceremonial purposes and also because of the wildlife we hunt to sustain ourselves.
The construction of this freeway would greatly harm the wellbeing of the mountain and
therefore will bring harm to the Oodham. Also, as an advocate for my children, I
wish to state my opposition to the Loop 202 expansion, aka, the South Mountain
Freeway as I see it as a threat to their religious freedoms being that Muhadag is
considered our most valued place of worship and must be protected for our future
generations.
-Testimony by Renee Jackson of Akimel Oodham
The Gila River Alliance for a Clean Environment75 (GRACE) is a grassroots organization of the
Akimel Oodham76 (River People) and Maricopa77 (Pee Posh) Indigenous Peoples of the Gila
River Indian Community (GRIC). Founded in 2002, it advocates for the protection of the
environment and the sacred and cultural sites of the GRIC and its Peoples. Established in 1859
as the first reservation in part of what later became Arizona in 1912 and located 17 miles south of
downtown Phoenix, the GRIC covers 372,000 acres and is the seventh largest federally
recognized reservation in Arizona.78
Located in the immediate exterior of the north end of the GRIC on city park preservation land,79
the Ma Ha Tauk, Gila, and Guadalupe mountain ranges, together popularly known as the South
Mountain, figures prominently in oral traditions of both the Akimel OOdham (River People)
and the Pee Posh (Maricopa).80 The Akimel Oodham believe that South Mountain is where
their creator emerged and as a traditional land, it is where burial sites, archeological sites, and
shrines are housed. Tribal members use the South Mountain for many activities. South
Mountain is where tribal members prayfastpreparegatherstrength.81 It is part of a

75

GRACE Contact: Lori Riddle; P.O. Box 11217; Bapchule, AZ 85121; 520-610-3405;
contaminatedinaz@yahoo.com.
76
The Akimel Oodham are native to central and southern Arizona and are descendants of the Hohokam, whose
artifacts have been dated as far back as 10,000 years ago. (The Gila River Indian Community, History: the Gila River,
http://www.gilariver.org/index.php/about-tribe/profile/history (last visited July 6, 2013)).
77
The Maricopa are a Yuman tribal people and started migrating from their lower Colorado River area homes in the
mid-1700s. (The Gila River Indian Community, History: the Gila River, http://www.gilariver.org/index.php/abouttribe/profile/history.
78
ADOT, South Mountain Study Team, Chapter 2 Gila River Indian Community Coordination
http://www.azdot.gov/south-mountain-loop-202-docs/eis/chapter2/chapter2.pdf (last visited July 6, 2013).
79
The preservation land is called the South Mountain Park Preserve and it is one of the largest city parks in the U.S.
80
Gila River Indian Community Resolution NO. GR-41-07, designating the South Mountain Range (Muhadag,
Avikwaxos) as a Sacred Place and Traditional Cultural Property of the Gila River Indian Community.
81
YouTube, South Mountain Freeway Proposal - Public Comments /Part 2 Dec. 21, 2009,
https://www.youtube.com/watch?v=zGW3LwbaI5Y

36

heritage that goes back hundreds and thousands of years.82 Rituals and ceremonies are
performed there and tribal traditionalists pick and harvest traditional cultural foods and medicines.
In 2007, the GRIC Tribal Council adopted a tribal resolution affirming that the South Mountain is
a sacred place/traditional cultural propertythatmust be kept inviolate.83 The resolution
states the GRIC Community Council strongly opposes any alteration of the South Mountain
Range for any purposeand any alterationwould be a violation of the cultural and religious
beliefs of the Gila River Indian Community and would have a negative cumulative effect on the
continuing lifeways of the people of the Gila River Indian Community.84 Because of its
association with cultural practices and beliefs of a living community that (a) are rooted in that
communitys history and (b) are important in maintaining the continuing cultural identity of the
community, the South Mountain is a traditional cultural property eligible to be included in the
National Register of Historic Places (NRHP)85 and with this status, use or alteration would
require federal consultation.86
However, without ensuring adequate consultation, on April 26, 2013, the Arizona Department of
Transportation (ADOT) released a Draft Environmental Impact Study (DEIS)87 identifying its
proposal and preferred alternative for building a major highway the South Mountain Loop 202that would cut and blast through the southwestern edge of South Mountain88 and is taking action
to complete the proposal and get the project implemented despite being fully aware of and
acknowledging the sacredness and spiritual and cultural significance of the mountain.89
If this project is implemented, there would be profound negative impacts on the cultural and
spiritual well-being of the Indigenous Peoples of the GRIC.
GRACE believes that all people should be able to access, participate and contribute to their
cultural life in a continuously developing manner without discrimination. GRACE argues that by
funding this project, the United States is discriminating against them as an Indigenous People by
approving destruction of GRIC heritage and culture that is central and fundamental to their
continued practice and development of GRIC culture. GRACE also argues that the GRIC tribal
members inherent rights to their cultural and spiritual traditions, and history and philosophy
have been violated. It asserts that the United States is in the process of violating the GRIC tribal
82

Id.
Gila River Indian Community Resolution NO. GR-41-07.
84
Id.
85
National Park Service, National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional
Cultural Properties 1990, available at www.cr.nps.gov/nr/publications/bulletins/nrb38/htm. Tribal lands includes all
lands within the exterior boundaries of any Indian reservation. (16 U.S.C. 470w (14)).
86
106 of the NHPA requires that federal agencies having direct or indirect jurisdiction over a proposed undertaking
are required, before granting a license or permit, to take into account the effect of the undertaking on any district,
site, building, structure or object that is included in or eligible for inclusion in the National Registry using a
reasonable and good faith effort. 16 U.S.C. 470f.
87
ADOT, Loop 202 (South Mountain Freeway) http://www.azdot.gov/southmountainfreeway/. The DEIS comment
period begin on 4/26/2013 and ended 7/24/2013).
88
ADOT, South Mountain Study Team, South Mountain Freeway Draft EIS Summary, 13 available at
http://www.azdot.gov/Highways/Valley_Freeways/Loop_202/South_Mountain/PDF/FHWA-AZ-EIS/00-SMDEISSummary-Chapter.pdf.
89
The DEIS states that the mountains are considered sacredplaying a role in tribal cultures, identities, histories,
and oral traditionsMany traditional religious and ceremonial activities continue on the mountains. (ADOT, South
Mountain Study Team, Summary at 39.)
83

37

members right to self-determine (i.e. right to maintain and strengthen their distinct cultural
institutions), right not to be subjected to destruction of their culture; right to protect and develop
past and future manifestations of their culture; right to maintain and strengthen their distinctive
spiritual relationship with their traditionally owned lands; right to protect and develop their
cultural heritage and oral traditions; and right to determine priorities for use of their lands.
GRACE argues that the United States has violated its obligation to consult and cooperate in good
faith with the tribal members in order to obtain free and prior informed consent. Executive Order
13175, Consultation and Coordination with Indian Tribal Governments, requires proper
consultation. The federal governments consultation requirement is based on the trust
relationship that it has with all Tribes. Here, this trust relationship is broken by the federal
government not making a reasonable and good faith effort to include the Tribal public in
consultation and to ultimately support an unnecessary project that will desecrate sacred land.
The GRICs treatment is a telling example of the federal governments rampant disrespect of
Indigenous Peoples cultural and religious practices and economic development being prioritized
over Indigenous Peoples fundamental human rights.
Case F: Havasupai Tribe and Destruction of Sacred Areas by Uranium Mining
Issue: Uranium Mining in Grand Canyon, Submitted by Carletta Tilousi, Havasupai Tribal
Member and former Havasupai Tribe Council Member
The Havasupai Tribe is comprised of 776 members and is located at the bottom of the Grand
Canyon, in the State of Arizona. The Havasupai Indian Reservation is approximately 188,000
acres and its surrounding lands and waters, many of which are now located on federal lands in
and around the Grand Canyon National Park, are of immense cultural, religious, spiritual and
historic importance to the Havasupai Tribe. However, due to dispossession of many of their
aboriginal lands, myriad places, plants, and animals that possess cultural, religious, spiritual and
historic importance for the Havasupai Tribe are situated on US federal public lands. This
includes sacred sites, burial grounds, and locations of religious practices. Given this situation, the
Tribe relies upon the federal and state governments responsible management and protection of
these lands. At present, these lands and sacred areas are under threat of further destruction from
extraction of uranium.
In 1986, the Arizona Department of Environmental Quality (ADEQ) approved the issuance of
several air quality and water quality draft permits for three uranium mines in Northern Arizona:
Canyon Mine, the EZ Mine, Pinenut Mine, and also a Water Discharge Authorization Permit for
EZ Mine. Energy Fuels, Inc., a Canadian corporation, owns these mines. The ADEQ failed to
consult with Havasupai tribe and its tribal members before ADEQ made a decision to the
issuance of the permits.
Formal ADEQ public hearings were held to receive public comments in Fredonia and Flagstaff,
Arizona, which are both at leas two-days travel (one way) from the Havasupai Reservation, in
December 2010 and January 2011. Havasupai Tribe leadership attended a hearing in Flagstaff in
early January and provided testimony opposing the issuance of permits, explaining that the Tribe
strongly opposed the issuance of the permits due to the adverse impact uranium mining would
have on air and water quality, tribal health and sacred sites located within close proximity to the

38

mining area. The Havasupai Tribe and tribal members continue to oppose the issuance of any of
the above-referenced permits regarding air and water quality.
In particular, the Havasupai Tribe relies upon the water quality of Havasu Creek and its
surrounding springs, which are connected to the Redwall-Muav aquifer, to sustain the physical,
cultural and religious needs of its people. As such, any uranium contamination of the air and/or
ground and surface waters would adversely and disproportionately affect the health, cultural
integrity and religious practices of the Havasupai Tribe and other surrounding Native American
Tribes who rely upon the air and water quality of the nearby springs for drinking water and for
numerous ceremonial practices.
The Havasupai people have sacred sites, burial grounds, and religious practices in and around the
proposed mining areas. In particular, Red Butte has recently been designated as eligible for
listing as a Traditional Cultural Property by the federal government under the National Historic
Preservation Act, and designated as a Traditional Cultural Property under Arizona State law.
Canyon Mine is situated directly on this Traditional Cultural Property. Nevertheless, the ADEQ
has failed to take this into account in its permitting process. The issuance of air and water quality
permits that would allow mining in this area, and the areas surrounding EZ Mine and Pinenut
Mine, would disproportionately, directly and adversely affect the Tribe in its religious, spiritual
and cultural practices. Because the Tribe will not disclose the exact locations of its burial
grounds, sacred sites or locations of religious practices, it has been deprived of its rights to
freedom of religious practice and religious protection. Special Rapporteur Amor documented this
lack of understanding and consequent discriminatory treatment in his report on the US:
60. In general, the charge is often made that legislation derived from a western legal
system is incapable of comprehending Native American values and traditions. Native
Americans are being asked to "prove their religion", and in particular the religious
significance of sites, most of which are situated on land belonging to the federal, state or
local Governments and some on private land; but the need to provide "proof" conflicts
with certain values, because the sacred site has to remain secret; furthermore, to reveal its
location would allow the authorities to interfere in matters of religion.90
Uranium extraction is an incredibly invasive activity that has a multitude of effects on the
surrounding environment. In 1986 the Environmental Impact Statement (EIS) concluded that
uranium mining would have no significant cultural or religious impacts to sacred places in
around Red Butte and Canyon mine. The Havasupai Tribe maintains that the EIS did not
effectively and meaningfully evaluate the effects of uranium mining on air and water quality.
Significant climatic and geological events such as the occurrence of earthquakes, increased winds,
and several serious flooding events have impacted both the air and waters surrounding Canyon
Mine and Red Butte. In particular, the Village at Supai has been impacted by increased
quantities of silt and waste that have descended from the top of the Canyon to the bottom due to
the increased flooding. These major events have not been taken into account in determining
whether to issue any of the above-mentioned permits, in particular, the Canyon Mine permit.

90

Report submitted by Mr. Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights
resolution 1998/18,Addendum, Visit to the United States of America, E/CN.4/1999/58/Add.1, 9 December 1998.

39

In the case of Canyon Mine, the Havasupais watershed is directly at issue. The Redwall-Muav
aquifer is situated below the Canyon Mine. It is that aquifer that the Tribe relies upon to sustain
the physical, cultural, spiritual and religious wellbeing of the Havasupai. The Havasupai rely on
Havasu Creek for drinking water, agricultural uses and ceremonial purposes. If the Tribes water
supply is contaminated from the uranium mining, the Tribe has no other water supply upon which
to rely.
Since the EIS was completed over 25 years ago, statutory and regulatory changes in the Clean Air
Act and Water Act have been enacted; they relate specifically to radiation, radon, particulate
matter and dust emissionsall of which were not taken into consideration in 1986. The
Havasupai Tribe has requested that a new Environmental Impact Statement (EIS) for Canyon
Mine be prepared. This is allowed under federal law and regulations, especially where there is
new information that would significantly alter the initial decision.
Additionally, the US Forest Services 1986 approvals did not analyze the Canyon Mines
potential effects to Red Butte as a historic property under the NHPA. The Forest Service recently
commenced consultation with the Havasupai Tribe concerning the Canyon Mines impacts to
Red Butte, and claims that it intends to continue consultation. The Forest Service is refusing to
undertake and complete a NHPA Section 106 Process relating to adverse impacts to the Red
Butte TCP, including consulting with the Tribe for the purposes of developing a Memorandum of
Agreement, prior to allowing Canyon Mine to restart mining operations, as required under NHPA
and its regulations.91 In failing to do so, the Havasupai Tribe is being denied its right to free,
prior and informed consent, among other violations.
Case G: Indigenous girls, Self-determination, Religious Freedom and FPIC
Contact: Margo Tamez, Lipan Apache Women Defense - Email: margo.tamez@ubc.ca
This case raises the emerging issue/case of adolescent Nd girls who have been striving to
receive and to practice thier Nd cultural and spiritual traditions through the Isanaklesh Gotal
ceremony. The ceremony involves an 8-day process guided by a Nadekleshen, her Godmother,
who is a respected traditional knowledge keeper. Pervasive barriers exist in the traditional and
customary homelands of the Nd (Lipan Apache), currently under the jurisdictional control of
Texas and the United States.
Militarization, the lack of FPIC, the negation of Treaties, Convenios, Crown grants, and a deep
patter of non-recognition are interlocking forces which operate together to maintain racism and
discrimination against Indigenous peoples locally and regionally. When the Nd act collectively
to practice sacred traditions, acts which reaffirm Nd world views, history, philosophies, and
continued existence, these then act as serious barriers to the exercise and enactment of collective
spiritual/religious observances of the Isanaklesh Gotal ceremony.
The Nd are a historical Tribe of North America who are experiencing distinctly different
treatment by Texas and the United States with regard to recognition, Free Prior and Informed

91

16 U.S.C. 470f, 36 C.F.R 800.13(b)(1).

40

Consent, access to justice, access to juridical personality, and accountability for the serious
structural barriers imposed on the exercise of religious expression by Nd female youth.
The racism and discrimination experienced by a certain Nd female youths quest to receive her
Isanaklesh Gotal ceremony raises concerns about the situation of U.S. unrecognized Indigenous
Peoples, the States passivity with regard to Nd Aboriginal Title existing in Texas, both of
which are well understood and accepted in international law as inherently tied to Indigenous
peoples right to self-determination with lands and territories and Indigenous peoples rights to
repair, recovery, recuperate and to revitalize Indigenous knowledge systems.
By foregrounding this unique situation of an Nd female teen, her situation alerts the members of
the CERD about severe structural, social, and political barriers which prevent Indigenous peoples
from exercising inherent rights to Indigenous religious, cultural, and land-based expressive
practices in customary and traditional homelands.
This situation points to negative indicators for the collective exercise of rights by current-day
Nd adolescent girls. However, this is especially concerning for Nd girls with maternal ties to
the militarized lands in the Texas-Mexico region, and specifically those whose family members
are actively defending traditional lands from the states dispossession, vis--vis the border wall
and related policies. The racial and gender dimensions of discrimination are imposing a
significant burden upon Nd female teens, preventing them from practicing land-based, culturally,
and spiritually-based Indigenous identity, which is a violation against Indigenous selfdetermination, and a serious concern.
Nd girls choose to practice the traditional Isnklesh Gotal ceremony, a foundational initiation
held sacred to Nd peoples. This is an urgent, time sensitive matter especially as officials in
Texas and the U.S. have publically iterated plans to militarize a seamless border in the TexasMexico region.92
This case suggests that the rhetoric, discourses, legislation, and implementation of the U.S. war
on terror, war on drugs, and anti- Mexicans and Mexico immigration has a strong tendency to
obscure the severe impacts of these types of policies on Indigenous peoples, especially
Indigenous female youth.
Further, the patterns of post-9/11 militarization and low intensity conflict methods deployed in
the Texas-Mexico region now reveal that Indigenous girls and women experience serious
discrimination in the exercise of spiritual-religious beliefs. This situation is giving voice to an
extremely marginalized sector of Indigenous peoples girlsand their true experiences on the
ground alongside their families who attempt to enact traditional interactions and relationships
with their customary homeland. This case gives insight into the forced, destructive and
92

The CERD is well familiar with this situation under the special Early Warning/Urgent Action procedure submitted
by Ariel Dulitzky, Director, Human Rights Clinic, School of Law, The University of Texas at Austin and Professor
Margo Tamez at the University of British Columbia. In addition, an Shadow Report was submitted for the 85 th
Session of the CERD on The Situation at the Texas Mexico Border and the Racially Discriminatory Impact of the
Boarder Wall on the Lipan Apache Peoples in Texas, submitted by Human Rights Clinic at the University of Texas
at Austin School of Law, the Lipan Apache Band of Texas and the Lipan Apache Women Defense, Margo Tamez
University of British Columbia (February 2014).

41

assimilative impacts of militarization on Indigenous female youth in the Texas-Mexico region, a

place heavily privatized by state and corporations, and bifurcated by international borders.
However, in this case, Nd peoples never ceded nor extinguished their inherent rights to their
lands and hold numerous legal instruments as evidence of a robust history of territorial defense
and intimate relationships with a homeland.
Discrimination is compounded by the inter-locking dynamics of Indigenous peoples land
defense in the region. The prominent roles of Nd women and male relatives in land defense also
amplifies the vulnerability of a teen girl within a larger nexus of local, regional, and national
racism which targets Indigenous peoples in the front lines of the defense against current-day
forms of repression and destruction.
The structural constraints imposed on the Nd obstruct the need to celebrate and transmit a
crucial component of the oral tradition which connects present-day realities to creation stories,
history, food systems, ecology, and kinship relations in Knits gokyaaNd customary and
traditional lands. The denial of recognition, respect, and accountability by the state in this
situation is having serious impacts on the transmission of Indigenous knowledge between Nd
generationsspecifically between elder women and female teens.
The structural impediments to knowledge transfer from the Nadekleshen (Elder Female Sponsor)
to Nd girls, reduces the girls capacity to disseminate crucial ceremonial knowledge to her own
future generations, which is a critical and urgent issue confronting Nd survival of U.S. and
Texas programs of progress in the region. The case of an adolescent Nd girl seeking to
receive the Isnklesh Gotal in the traditions of Nd sacred knowledge customs, is a serious
concern.
Context:
In the aftermath of 9/11, the war on terror, the U.S. border wall construction, the humanitarian
crisis spawned by failed democracy and run-away corruption in the U.S.-Mexico border region,
and the escalating crisis stemming from discriminatory legislations enacted against Mexican and
Indigenous migrants, it is the Nd peoples who have consistently raised a collective voice to the
international arena and have been raising awareness about the impacts of structured violence on
Indigenous peoples from the Texas-Mexico region.
Since 2006, when the United States passed legislation to construct the border wall, Nd peoples
have been attempting to exercise the right to self-determination on fundamental levels at the
country level.
The state negates the juridical personality of Nd, even though the U.S. has an extensive record
of treaty-making with Nd leaders.
The states construction of walls, edifices and other architectural and technological systems
across Indigenous lands are occurring without the Indigenous Peoples free, prior and informed
consent. The containment and the process of decision-making by powerful elites in Texas and the
U.S. are working in a manner which impedes, intimidates, reduces and often completely
dissolves Indigenous Peoples capacity to practice sacred ceremonial traditions. Indigenous
spiritual practices holistically impart Indigenous world-views, philosophies, epistemologies,
science, and grounding to Indigenous youth, who are at tremendous risk for assimilation and loss
42

of culture and at risk for many related psychological, mental, physical, and emotional illnesses
related to inter-generational colonization and associated trauma.
The revitalization of the Isanaklesh Gotal ceremony occurring in the Nd society is crucial to
rebuilding Nd self-governance and self-reliance. The female youth, adults, and elders are
working against incredible obstacles to recuperate and to strengthen Nd knowledge systems,
which develop holism through relationships of balance, sustainability, and respect. In order to
reconstruct and rebuild Nd society, and to transition to a decolonization and justice-focused
paradigm, it is crucial for Nd to strengthen Indigenous knowledge systems, memory and
significant cultural, historical and educational pedagogies that are core to the Isanaklesh Gotal
ceremony, also known as the Apache Puberty ceremony. In a region experiencing significant
erosion of rule of law and democracy, the CERD must determine the extent to which the Nd are
obstructed from being Nd, as this is evident in the case of a young female Nd seeking her rite
of passage ceremony.
The Nd have experienced racism, discrimination, and serious patterns of genocide in Texas and
the United States, however the militarization of the Texas-Mexico region takes this history to a
new extreme. Physical mega-wall structures are a built world reflecting a historical pattern of
racism, genocide, and punitive policies toward Nd and Nd sites of memory. How do Nd
exercise the right to be Nd? Militarization, as an overt policy of state denial and nonacknowledgement of Nd, also naturalizes the broader domestic policy of legislated erasure of
legal claims to Aboriginal Title and obfuscates the states responsibility to alter its dangerous
course.
This particular case briefly relates an Nd adolescent girls struggle to achieve/receive her
ceremonial rite of passage, Isnklsh Gotal, the transformative ritual which structures the
celebratory change from youth to womanhood. This section briefly summarizes the barriers the
Nd are facing to ensure this ceremony occurs for Nd girls, though illustrates the layers of
procedural erasures and administrative exclusions that impede Nd from exercising fundamental
rights to religion, identity, and membership in the Apache Nation. There is a critical importance
and urgency, all Apache Peoples know and place this ceremony as a crucial act of being
connected to ancestral and ongoing forms of intimate bonding in the space between earth and
sky.
Being obstructed from holding her ceremony in her maternal territory, and from participating in
the processes of being inducted into the larger Apache world, and being held in high regard as
an exemplary Apache woman the states obstructions to the continuance of the Nd peoples
existence and being in the Texas-Mexico border takes on particularly painful tones as is in limbo
from being a link in the continuance of the Nd origin story, oral history and knowledge for her
clan and future generations.

Questions:
The issue here is, how does an Nd adolescent girl, currently preparing to undergo the most
important ceremony of her life as an Apache girl, undertake gaining access to the sacred
43

watershed, land, elements, and family membersin the shadow of the bordera highly
militarized zone? Nd are forbidden from participating in acts of aggression and hostility, or
other forms of conflict, when preparing for ceremony, yet to defend their homeland in Texas and
the U.S., the states non-recognition of the Nds inherent self-determination and sovereignty
forces an adversarial, combative and eminently violent process.
How do the Nd exercise self-determination as a highly vulnerable group, in the racist climate of
south Texasand gain the ability to access customary lands which the state literally has control
over, and refuses to acknowledge the Nd juridical existence and inherent rights to those lands?
How does an Nd girl maintain her will, when her maternal grandmothers lands are currently
bifurcated by the U.S. border walland her grandmother is a litigant against the authoritarian
state? How can the CERD begin to implement the structuring of transitional justice with these
mitigating factors which put Indigenous Peoples in a stand-off with the state? Nd girls future
capacity to disseminate the traditional ceremony to her future generations is severely threatened
by her and her Clans in-access to sacred lands to which her Nadekleshen and traditional history
are inextricably linked
Multiple borders and Nd rights to exist across and beyond international borders:
There is the example of Cheek Ikk ejaga, an Nd girl currently living in Canada as a result
of economic forces which pushed her family to migrate north for economic employment. Yet
another Euro-American physical and cultural border puts a burden upon her from accessing to
traditional knowledge and the exercise of being Nd.
On the one hand, the lands of Cheek Ikk ejagas maternal grandmother are inaccessible and
heavily militarized by the wall, drones, boots on the ground, Border Patrol. The governments
plans to build more layers of the border wall across her maternal customary lands is part of the
states plan to operationalize immigrant reform laws. On the other hand, the Lipan Apache
Band of Texas, seeking to address the bureaucratic administrative maze of Texas and the United
States to gain access to Nd sacred maternal lands in the Lower Rio Grande region, has as of this
writing been refused permission to access customary and traditional homelands due to a ban
on fire.
To perform the ceremony on lands identified as historically and culturally significant to Lipan
Apaches/Nd, and specifically relevant to the Celcahn Nd (Tall Grass People Clan). Cheek
Ikk ejaga is a clan member of the Celcahn and has rights to these lands traditionally.
However, the Lipan Apache Band of Texas is being impeded from exercising their rights to
perform the ceremony for Cheek Ikk ejaga, and to exercise self-determination in customary
lands (currently under jurisdiction of Texas State Parks). The ceremony requires the use of fire
for eight days, and the State of Texas is neglecting to support Nd Peoples needs for a sacred fire
for the ceremony. While there is a fire ban in effect due to the drought, Daniel Castro reports that
an official of the state indicated that private property owners next door to the sacred site, under
the states jurisdiction, are allowed to make controlled and contained fires. That is
discrimination.
Responsibility and Accountability:

44

The Lipan Apache Band of Texas position is that the USA has a responsibility to uphold the UN
ICERD, and to promote the implementation of access to sacred and spiritual sites of significance,
which are inherently still the property of the Nd and were never surrendered to the state
voluntarily.
This is a crucial case to examine the access to justice for full enjoyment of Nd to exercise:

Indigenous continuity through the transmission of Indigenous womens knowledge;

the crucial protection of Indigenous oral history and memory;
the vital preservation of Nd identity through collective and shared communal celebration
of retracing, recovering, and reclaiming Nd origin stories;
Nd histories of women as dynamic shapers of cultural adaptation and change in
modernity and industrialization;
Nd philosophies under significant periods of repression;
transmission of self-determination and being to another generation of Nd women.

The current discriminatory climate in southern Texas and the Texas-Mexico border region
emboldened by non-recognition of Nd by the USA and the State of Texas impedes the
enactment of this crucial ceremony for Cheek Ikk ejaga, her Clan, and her Nadekleshen, her
sponsor, an elder of 84 years of age.
This has deep and broad implications and applications for Nd girls, families, and clansmany
of whom experience displacement, urbanization, and forced economic migration away from
Knits gokyaain the United States, Mexico and now Canada.
Xenophobia, anti-Indigenous, anti-Mexican, and anti-Latino discourses, rhetoric, and policy have
exacerbated the barriers which exist for Cheek Ikk ejaga, her Nadekleshen, and the
Celcahn Nd and Goschich Hadadidla Nd clans.
The Nd are actively seeking the decisive action, support and critical insights of the ICERD to
help them conduct the Isnklesh ceremony in the maternal lands which are undergoing serious
threat and dramatic change in the post 9/11 period.
For Cheek Ikk ejaga, and the Nd peoples, the inherent right to conduct this crucial rite of
passage in Knits gokyaa, in the literal lands of her mother, grandmothers, and maternal
grandmotherswhich are currently divided by the border wall and a heavily militarized
climatehas been a three-year odyssey, with many ruptures in the process due to barriers that at
times overwhelm the Nd capacity to be more than merely survivors in a perpetual state of
limbo.
Cheek Ikk ejaga and her Nadekleshen are constrained by the need to conduct ceremonial
time in accordance with the relevant Nd cultural protocols; however, many of these traditional
protocols are impeded by discriminatory barriers to Nd which exist at many levels of Texas and
U.S. societyin state schools, in religious organizations, in civic procedures, in state governance,
and in the federal governments one-size-fits all approach to federally unrecognized Tribes
negation. The USAs negation of Nd self-determination, Treaties and other relevant
Mechanisms connected to inherent Nd Aboriginal Title. Cheek Ikk ejagas situation

45

requires the urgent attention of the CERD in order to interrogate the structural barriers which
impede her from receiving the traditional ceremony in her maternal homeland.
The United States of America, a powerful and wealthy state with an entrenched history of settler
colonialism, is allowing pervasive and gross violations against Nd peoples, Nd land Title
holders, Nd extended clans, and Cheek Ikk ejaga. Gross neglect is an understatement for
the states seemingly willful and painful denial of ICERDs most fundamental principles.
Conclusion:
This report has highlighted Nd peoples background, histories, current challenges, ongoing
human rights cases, and an emerging case, all which reveal nuanced and profound dimensions of
the USAs non-compliance with the principles and tenets of the International Covenant on the
Elimination of Racism and Discrimination as it applies to Indigenous Peoples.
Without the states recognition of Nd and being held to account to a long history of Nd Treaties,
Convenios, Crown grants, and other agreements related to inherent Nd sovereignty and selfdetermination, the Nd have serious misgivings and doubts about the U.S. ratification of the
ICERD. Ratification without contemporary action, historical clarification, redress, truth, and
transitional justice has no positive effect for Indigenous peoples in the Texas-Mexico region.
In other words, although the ICERD is binding upon the U.S. in international law, on the
groundin Texas and in the U.S.in reality, the pervasive racism which is normed in the U.S.
mainstream dictates a rigid resistance toward meaningful integration of the ICERD into domestic
law and policy. The state fails to shape domestic laws and policy-making to the minimum human
rights standards as articulated in the Convention.
In a word, the U.S. is non-compliant, and has not been held to account to en masse violations
against Nd Peoples. This domestic policy of denial and abuse has opened the doors for other
Peoples to violate Nd rights and inherent self-determination. Cumulative effects of the racist
and discriminatory policies enacted through militarization, globalization, industrialization,
extractive capitalism, and dispossession are stripping away the future for Nd teen girls who are
aspiring to be exemplary Apache womenand preventing them from becoming the core leaders
who will address the Nd future in a thoughtful, productive and meaningful way.
Case H: Muscogee (Creek) Nation and Hickory Ground Tribal Town
Issue: The United States Governments Failure to protect Hickory Ground Sacred Area
Contact: Brendan Lutwick, Attorney brendan@lutwick.com
On behalf of the Muscogee (Creek) Nation (MCN), a federally-recognized Indian tribe, please
accept this request to call upon the United States to protect the religious and cultural rights of the
MCN and sacred land known as Hickory Ground, a property listed on the National Register of
Historic Places. Hickory Ground includes a ceremonial ground, burial sites and individual
Muscogee graves. Hickory Ground was obtained with federal funds under the pretense of
historic preservation. However, to date, 57 known sets of human remains and sacred funerary
objects have been allowed by the US to be intentionally exhumed in violation of US federal law
and international human rights standards including Article 5 of the ICERD.

46

The MCN historically occupied millions of acres of territory throughout the Southeastern United
States, including the present-day US state of Alabama. The Creek Nation was a confederacy
consisting of semi-autonomous tribal towns, each led by a traditional chief called a Mekko.
Each town possessed a ceremonial ground where a sacred fire was kept. The traditional Creek
religion was practiced and the deceased were buried with sacred funerary objects. Hickory
Ground Tribal Town (Oce Vpofa in the Muscogee language) is a tribal town that formerly was
located at present-day Wetumpka, Alabama, which also served as the last capital of the National
Council of the Creek Nation prior to their forced removal by the United States (the infamous
trail of tears) to Indian Territory (present-day Oklahoma) in the 1830s.
The Creek tribal towns, including Oce Vpofa, continue to exist as distinct tribal entities within the
MCN, carrying on the traditions of their ancestors. Tribal town affiliation is matrilineal; thus the
members of Oce Vpofa in Oklahoma are the lineal descendants of the ancestors buried at the
historic Hickory Ground in Wetumpka, Alabama.
Hickory Ground was listed as an historic property on the National Register of Historic Places
under the National Historic Preservation Act in 1980, based on its significance as the last capital
of the Creek Nation prior to removal and undisturbed archeological remains located there. In
1980, the Alabama Historic Commission nomination included the following:
Hickory Ground or Oce Vpofa is primarily significant as the last capital (1802-1814) of the
National Council of the Creek Nation in the Creeks original homeland. It is one of the few
Creek Indian sites known to have been inhabited as late as1832 and one of the few remaining
such sites which has not been extensively disturbed or destroyed. The site is prime
development property. The present owner has delayed plans to sell to developers while a historic
preservation discretionary fund application for acquisition by the Creek Nation is being prepared.
However the Creek Nations plans did not materialize and this sacred area was given to another
group by the US government with a false promise to the MCN that this sacred ground would be
preserved and protected. A neighboring tribe was federally recognized in 1984, and the US
Secretary of the Interior accepted 8 parcels of land into trust for the new tribe. Seven of these
parcels were in an area where members of the newly-recognized tribe were located; the eighth
parcel, Hickory Ground, was located over 100 miles away, and taken into trust by the US for the
new tribe even though there was no significant population of that tribe in that immediate area.
The new tribe applied for a federal historic preservation grant to acquire the property, which was
awarded by the U.S. Dept. of Interior to fund the acquisition. In its applications, the new tribe
promised to preserve the land for the benefit of all Creek Indians, including the existing Hickory
Ground tribal town in Oklahoma, and to protect the remains without excavation.
Members of the MCN who are lineal descendants of the exhumed ancestors requested the
remains to be reinterred at the ceremonial ground in accordance with Muscogee spiritual beliefs.
Disregarding the rights of MCN and lineal descendants, the US made a series of policy and legal
decisions that failed to protect and preserve the sacred area. In April 2012, the burials were
relocated in order to construct a $246 million casino resort on the sacred burial ground.
In 1999, the National Park Service entered into an agreement with the new tribe granting them
authority over Hickory Ground without consulting with or obtaining the consent of the MCN; this

47

made MCNs aboriginal lands and place of religious and cultural significance subject to another
tribes authority under its Tribal Historic Preservation Office. This was done in total disregard of
Executive Order 13175, which ensures the US must obtain meaningful and timely input from the
MNC, and Executive Order 13007, which required federal agencies to avoid adversely affecting
the physical integrity of Hickory Ground as a Native American sacred place.93
Starting in 1991, human remains were removed from Hickory Ground, in direct violation of
federal laws and without consent of the MCT or the linear descendants. The US government,
through the Department of the Interior and the National Park Service, has consistently failed to
consult with the MCN and have failed to respect international human rights obligations regarding
protection of sacred sites. Remains were excavated without obtaining an ARPA permit. The
Archaeological Resources Protection Act (ARPA) 470cc (b)(2) governs excavation on federal
lands. However US government officials limited their investigation to one location and
concluded that ARPA had not been violated. 94 Despite a number of official objections by the
MCN, including to the US Department of Interior and the United States Senate Committee on
Indian Affairs, the US issued a permit for further excavation at Hickory Ground in 2003.
Excavations proceeded without any consultation with the MNC. In 2006, archaeologists reported
that approximately 425 human features had been excavated, and warned that proposed
development of the property would be expected to encounter additionalhuman remains.[and]
construction in these areas would be extremely harmful to these items.
The US refuses to require compliance with federal laws designed to foster accountability and
prevent harm to sacred areas. Under the mandates of the National Historic Preservation Act
(NHPA),(2)(A), the National Park Service must review a tribes historic preservation office at
least every 4 years. This has never been done in the case of the tribe currently excavating human
remains. In the case of Hickory Ground, not only does the US fail to comply with federal laws
designed to protect sacred sites, but it also fails to accord the Muscogee (Creek) Nation rights
affirmed in the ICERD and other human rights instruments.
It has been more than one year since the Hickory Ground Tribal Town and the Muscogee (Creek)
Nation in Okmulgee, Oklahoma, have filed for an injunction to stop the development and
desecration of the historic, ceremonial and burial ground, Hickory Ground, in Wetumka,
Alabama, from which the Muscogee Peoples were forcibly moved to Indian Territory. To date,
the federal district court has not rendered a decision. In the interim, Poarch Band of Creek
Indians opened its casino expansion on Dec. 17, 2013.
Muscogee Nation Chief Tiger wrote to Members of the Oklahoma congressional delegation on
Dec. 16, 2013, to remind you of the ongoing violation of federal laws and public policy
concerning the excavation of Muscogee (Creek) Nation ancestors and human remains in
Wetumpka, Alabama. It is also to request your oversight and action on behalf of approximately
77,000 Muscogee (Creek) citizens and your constituents in Oklahoma.Over the past decade the
Poarch Band excavated at least 57 sets of human remains of Muscogee ancestors from Hickory
Ground in order to build a hotel and casino. To the shock of Muscogee (Creek) people, the
93

Executive Order 13007, issued in 1996 by President Clinton, provides at Sec. 1(a) that In managing Federal
lands, each executive branch agency with statutory or administrative responsibility for the management of Federal
lands shall . (2) avoid adversely affecting the physical integrity of such sacred sites.
94
Note that the Alabama Historical Commission disagreed with the US investigators conclusions.

48

Poarch Band casino was rushed to completion without proper respect for traditional or cultural
standards, federal laws and public policies. Non-native and Native nations, including ours, have
built many casinos, but not one of them is built on top of a sacred place and certainly none on top
of a human burial site.The Poarch Band also denies access to the site by Muscogee (Creek)
Nation citizens who are direct lineal descendants of Hickory Ground, who wish to memorialize
our ancestors and to conduct ceremonies there. When other tribal leaders have attempted to use
our national organizations to address this issue, the Poarch Band representatives have claimed
this is an Indian-against-Indian matter and that no one else should intercede. Actually, this is a
developer- against-Indian matter, and one that no non-Indian developer could get away with.
On Dec. 30, 2013, Chief Tiger wrote to President Barack Obama imploring him to protect our
historic ancestral burial and ceremonial grounds in Wetumpka, Alabama, known as Hickory
Ground. In our language, this hallowed ground is OceVpoka Cvko Rakko, Hickory Ground
Ceremonial Ground/ Tribal Town of the Mvskokvlke, Muscogee Nation. We urgently request
that you proclaim Hickory Ground to be a national monument under the American Antiquities
Act.
Muscogee Nation and Hickory Ground await response to these requests, as well as to the federal
district courts decision.95
Case I: NaKoa Ikaika KaLahui Hawaii - Papahnaumokukea Sacred Area Northwest Hawaiian
Islands (NWHI) USA Nomination as a UNESCO World Heritage Site
Contact person: Mililani Trask, Convener NaKoa Ikaika KaLahui Hawaii, Inaugural member of
the UN Permanent Forum on Indigenous Issues Tel: (808) 990-0529 mililani.trask@gmail.com
Papahnaumokukea is of great spiritual and cultural importance to Indigenous Hawaiians with
significant cultural sites found on the islands of Nihoa and Mokumanamana. Mokumanamana has
the highest density of sacred sites in the Hawaiian Archipelago and has spiritual significance in
Hawaiian cosmology.
The traditional Code of Conduct for the Aha Moku districts, No laila oiai oe e komo ana I
keia wahi kapu nou keia Kuleana e hooko. Therefore, as you enter this sacred place, this
responsibility is place upon you. The significance of this traditional saying by our kupuna or
elders is that it applies to every one of us who are responsible for the well-being of our islands,
including the NWHI.
The Papahnaumokukea Marine National Monument is the single largest conservation area in
the USA, and one of the largest marine conservation areas in the world. It encompasses 139,797
square miles of the Pacific Ocean (362,073 square kilometers) - an area larger than all the
country's national parks combined. On July 30, 2010 Papahnaumokukea was inscribed as a
mixed (natural and cultural) World Heritage Site by the delegates to the United Nations
95

In a recent news story (Publication: Indian Country Today May 30, 2014) an account of events on the 13th of May
2014, Save Hickory Ground activists tried to hold a rally on the sidewalk outside a convention center during the a
conference (the National Indian Gaming Associations Annual Tradeshow & Conference - NIGA), but security
guards forced them to leave and it is unclear who ordered that removal. As such, even a peaceful demonstration
regarding the issue has been prevented. Read more at http://indiancountrytodaymedianetwork.com/2014/05/30/savehickory-ground- rally-shut-down-niga-155088?page=0%2C2

49

Educational, Scientific and Cultural Organization's (UNESCO) 34th World Heritage Convention
in Brasilia Brazil.
When the US nominated this area for inscription on the list of World Heritage Sites, the
supporting documentation submitted to UNESCO acknowledged that the area was considered
sacred not only to Hawaiians but to other Polynesians as well. The US report states:
Native Hawaiians explored and settled the archipelago, inhabiting the main Hawaiian
Islands and venturing into the region to the northwest, now known as
Papahnaumokukea. This chain of far-flung islands and atolls, and the waters
surrounding them, continue to be respected a sacred zone, a place containing the boundary
between Ao, the world of light and the living, and P, the world of the gods and spirits, of
primordial darkness, from which all life comes and to which it returns after death.
Papahnaumokukea is as much a spiritual as a physical geography, rooted deep in Native
Hawaiian creation and settlement stories. Many oral traditions say that Native Hawaiians
are genealogically related not only to the living creatures that make up the land and ocean
ecosystems, but to the islands and atolls themselves. In relatively recent times, the islands
of Papahnaumokukea have become known as the Kpuna (Revered Elders or
Ancestors) Islands, in part because they are geologically older than the main Hawaiian
Islands, and because, according to Hawaiian oral tradition, these islands themselves are
ancestors to Native Hawaiians. Thus, Hawaiians not only look to their Kpuna Islands for
ike (knowledge), but they also have a deeply embedded kuleana (privilege and
responsibility) to care for their kpuna.
Each island is a teacherthe most famous Hawaiian creation chant, the Kumulipo, tells
of the birth of the world from the darkness of P, beginning with the simplest known form
of life, the coral polyp, and progressing to the more complex forms As time passes, life
begins created in sibling pairs, a land creature or plant for every sea creature or plant.
These twins almost always share similar names; they are often also linked in real-life
cycles, with one blooming on land as the other becomes fertile or abundant in the sea.96
During the lengthy hearing & nomination process, over 200 public hearings were held, but no
Indigenous consultations were conducted. Hawaiians joined with the Guahon Coalition of Guam,
opposed the nomination based on cultural and subsistence reasons, and requested that the Obama
Administration conduct consultations. Communications setting out such objections and calling
for appropriate Indigenous consultations were sent to the U.S .Ambassador to UNESCO Mr. H.E.
David Killion97, White House Senior Policy Advisor for Native American Affairs Kimberly
TeeHee, the International Union for Conservation of Nature, the International Council on
Monuments and Sites, and Mr. Francesco Bandarin of UNESCO.
No response was received from the United Sates. Discussions held with the White House Indian
Affairs staffers attending the United Nations Permanent Forum on Indigenous Issues (9th Session)
96

Native Hawaiian Culture and Papahanaumoku, page 20-21, US Nomination Documents to UNESCO,
http://papahanaumokuakea.gov/management/ web site of the US NOAA
97
Letter from Rowena Akana, Office of Hawaiian Affairs to David Killion, Permanent Delegation of USA to
UNESCO dated July 12, 2010; and, NaKoa Ikaika KaLahui Hawaii - ECO-SOC Affiliate to the Indigenous World
Association, The Koani Foundation, The Guahan Coalition for Peace and Justice & numerous other Indigenous
NGOs of Guam to David Killion, Permanent Delegation of USA to UNESCO dated July 19, 2010

50

in New York revealed that the Obama Administration did not support consultations with
Hawaiians and the Indigenous of Guam because we are not federally recognized Indians.
According to the White House, Obama staffers and Kimberly TeeHee, the United States has no
obligation to consult with Hawaiians or Indigenous Peoples of the US Trust Territories because
the Executive Order 13175 on Consultation and Coordination with Tribal Governments only
requires consultation with federally recognized American Indian Tribal Governments.
Hawaiians and Chamorro Peoples are not federally recognized and are therefore not Indians for
the purposes of consultation under the Executive Order.
The result of this World Heritage inscription and the complete absence of consultation in the
process leading up to it, is that Indigenous Hawaiians are not allowed free cultural access to the
area for spiritual and cultural purposes unless approved by the US National Oceanic and
Atmospheric Administration (NOAA) pursuant to the US criteria which states that only
Hawaiians who are PONO (righteous) may access the area for cultural practice, and then only
through the NOAA procedures. In 2013 the US sequestered all funding for the UNESCO site for
research, culture and tourism. The area is now used exclusively use for US military exercises.
Case J: Pit River Nation & the Advocates for the Protection of Sacred Sites
The Medicine Lake Highlands, California USA A Sacred Place Radley Davis Email:
RadleyDavis09@gmail.com
Submitted by the Pit River Nation & the Advocates for the Protection of Sacred Sites
To our People and many other tribal Nations, Medicine Lake is a very beautiful and
special place. Medicine Lake and Mt Shasta were gifts to our Peoples from the Creator,
the One Above. These places are part of our creation and our teachings about how we
leave this world.
There is only one place like that for us, where if you bathe in the water in the Lake,
and follow the rules the Creator set down for that place, there can be healing for
anyone. It is sacred to the tribes from all directions that traveled hundreds of miles to
come there. It is a place of peace and healing, where you can both see and feel the
spirits that are there. Our Spiritual People and healers received knowledge and power
there, and it was a place of meditation and training where they went to receive these
gifts to protect all life.
Captain Jack and the Modoc People fled to Medicine Lake as a stronghold when the
armies came after them in 1872. There were 3000 soldiers against 50 Indian men,
women and children. In that battle, the armies could not defeat the Modocs, and only
one Indian lost their life. The place protected them that way. That is how strong this
place is.
Statement made in June 2004 by the late Mickey Gemmill Sr. Pit River (Iss-Ahwi) and
Wintu Spiritual Leader, Member of the IITC Board of Directors from 2000-2006
The Medicine Lake Highlands (Highlands) consist of roughly 73,000 acres of forests, lakes and
unique volcanic geological formations in the Modoc, Klamath, and Shasta-Trinity National
Forests in Northern California, USA. Since time immemorial, the Pit River Tribe and other
51

Indigenous Peoples have used the Highlands for religious purposes and cultural ceremonies. As
Pit River elder Willard Rhoades disclosed regarding Medicine Lake,
In creating this world, when it was moist, the maker of life stopped here to rest and
drink and wash and imparted himself into this water. Through this sacred water we are
connected to healing and thats why we respect this place deep in our heart.
In April 2013, through their Declaration to the world, the Advocates for the Protection of Sacred
Sites (APOSS) and Pit River Tribe defined threats to sacred Indigenous territories, lands, waters,
ceremonial places, rights and ways of life and in particular, the threats of hydraulic fracturing,
geothermal development and related wide-ranging destructive impacts on the Highlands. In
February 2013, the Pit River Tribal Council reaffirmed the importance of protecting the sacred
Highlands by issuing a resolution strongly opposing geothermal development and any other
industrial activities there.
In the 1980s, The United States Bureau of Land Management (BLM) issued over two dozen
geothermal leases in the Highlands, set to expire in 10 years unless the leaseholder identified and
diligently pursued commercial production. Although no geothermal power has ever been
produced or identified in the subsequent 30 years, BLM has continued to extend the leases. The
Pit River Tribe and its Allies have litigated the illegal lease extensions since 2004, and the 9th
Circuit has twice affirmed that a previously-approved development plan violated federal law.
Nevertheless, BLM and Calpine Corporation, which now holds all the leases, continue to
advocate developing the Highlands.
In particular, the lessee proposes to develop up to five power plants and their associated cooling
towers, wellfields, production and injection pipeline system, access roads, and electricity
transmission lines across the Medicine Lake landscape. The development of such industrial-scale
projects will, as the BLM and Forest Service have already concluded, have significant adverse
impacts on the areas cultural uses and environment values. Moreover, it has become clear that
any development will require hydraulic stimulation, known as enhanced geothermal systems or
EGS, to extract heat from the rocks. Similar to fossil fuel fracking, EGS requires the continuous
use and subsequent disposal of large amounts of acids and water, potentially threatening the
areas pristine water quality and resources.
This case is another clear example of an energy corporation and federal government entities not
respecting a tribes culture and traditions to protect a sacred place and to disregard its own
evidence that building these power plants will cause irreparable harm to all in its path.
To prevent the destruction of the sacred Highlands by industrial development, the Pit River Tribe,
APOSS and their Allies respectfully requests consideration of the following recommendations:
1.
Recommend the United States Secretary of Interior fulfill the trust
responsibility to the Pit River Tribe by directing BLM to exercise its authority to cancel
the leases for noncompliance with the Geothermal Steam Acts due diligence
requirements.
2.
In the alternative, recommend the State introduce legislation to buy-back
the geothermal leases from Calpine. Models for funding such a buy-back include the
Soldedad Canyon High Desert California Public Lands Conservation and Management
52

Act introduced in 2011, and the highly successful Santini-Burton Act, funding land
purchases to protect Lake Tahoe from the sale of surplus federal land around Las Vegas.
3.
Recommend the State introduce legislation to designate the Highlands as a
National Monument or seek and support a presidential designation under the Antiquities
Act of 1906. In addition to well-documented historic and cultural values, the Highlands
support outstanding environmental resources and unique natural volcanic features.
Case K: The Taino Peoples of Borikn (Puerto Rico) with regard to sacred areas: Caguana
Ceremonial Center, Utuado, Puerto Rico; Jcanas (PO29), Ponce, Puerto Rico
Contact: R. Mkaro Borrero, President, United Confederation of Tano People (UCTP) Email:
mukaro@uctp.org, Office of International Relations and Regional Coordination, P.O Box 4515,
New York City, NY 10163
Issue: Lack of recognition and racially discriminatory exclusion denies and consequently
violates the human rights and fundamental freedoms of Indigenous Peoples in Insular
Areas where the United States is currently exercising jurisdiction.
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
Article 5 stipulates that State parties guarantee the right to everyone, without distinction as to
race, colour, or national or ethnic origin, to equality before the law notably in the enjoyment of
the following rights (d)(vii) the right to freedom of thought, conscience and religion, and
(e)(vi) the right to equal participation in cultural activities, is directly applicable in this case.
1) To date, the United States has failed to adequately address the special situation of

Indigenous Peoples in Insular Areas such as Puerto Rico, where the United States
is currently exercising jurisdiction. The Co-Submitters therefore request the
Committee question the United States as follows:
a. Why do consultations and listening sessions conducted by the United
States fail to include Indigenous Peoples in Insular Areas where the
United States is currently exercising jurisdiction.
b. Why does the United States fail to report on or implement free, prior and
informed consent of Indigenous Peoples in Insular Areas where the United
States is currently exercising jurisdiction.

The Fourth periodic report of the United States of America to the ICCPR, on pg. 4, notes that the
United States continues to exercise sovereignty over a number of Insular Areas, each of which is
unique and constitutes an integral part of the U.S. political family. Within this framework of
U.S. Insular Areas, the Fourth periodic report identifies, for instance, the island of Puerto Rico as
a Commonwealth that is self-governing under its own constitution... While the report stress the
effort of the U.S. to ensure that Puerto Ricans are able to express their will about status options
and have that will acted upon, as well as concern for job creation, education, healthcare, clean
energy, and economic development, the lack of recognition of the Tano People in Puerto Rico
ensures that their voices and will are silenced about all issues related to their rights as Indigenous
Peoples, including the right to self-determination and free prior and informed consent.

53

Affirming Indigenous Peoples as distinct within the pluri-cultural Commonwealth of Puerto Rico,
the 2010 U.S. Census reveals over 35,000 people residing in Puerto Rico recognized themselves
as American Indian, alone or in combination with some other race. Only 350 of these
individuals identified themselves as connected to recognized U.S. mainland American Indian
Tribes while others recognized themselves specifically as Taino. The Tano People are verifiably
pre-Columbian inhabitants of Puerto Rico and other Caribbean Islands, and were the first
Indigenous Peoples in the Americas to be called Indians (American Indians, Amerindians).
Despite this well-known history, the Tano are not formally recognized by the United States.
Indeed, the core and the heart of the issue is the United States failure to formally recognize the
Taino People and other Indigenous Peoples within Insular areas. This denies their human rights
and fundamental freedoms in all respects including access to Sacred Areas, Burial Sites,
Ceremonial Centers, Ancestral Remains and Funerary Objects. In contrast to the inequity of the
specific situation of the Tano People and Indigenous Peoples within insular areas, other
American Indians, Native Alaskans, and Native Hawaiians, for example, can exercise their rights
under the Native American Grave Protection and Repatriation Act (NAGPRA) and the National
Historic Preservation Act. This legislation includes, inter alia, provisions for American
Indigenous Peoples to take part in the discussions and decisions regarding their sacred sites.
At minimum, the Tano People have a right to the same protective provisions created for other
American Indians, Native Hawaiians, and Alaskan Natives.
The discriminatory treatment of the Tano People was presented to the CERD in 2008, the UN
Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and
Related Intolerance (2008), and the 2009 Universal Periodic Review in official submissions, yet
these international mechanisms have not only ignored the specific issue as it relates specifically
to the Tano People, but also the broader issue of the denial of Human Rights and fundamental
freedoms and related situations of Indigenous Peoples in all Insular areas under the jurisdiction
of the United States.
The United States claims plenary power over Puerto Rico and its native inhabitants based on
Article IX of the 1898 Treaty of Peace between the United States of America and the Kingdom
of Spain (The Treaty of Paris): The civil rights and political status of the native inhabitants of
the territories hereby ceded to the United States shall be determined by the Congress. The Tano
People of Puerto Rico justly claim their right to be secured in the free exercise of their religion as
affirmed under Article X of the same Treaty of Paris, which explicitly provides that The
inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be
secured in the free exercise of their religion.
With respect to the right of the Tano People to freely exercise their religion, Tano Peoples call
for (1) the removal of ancestral remains from museum and institutional displays, throughout
Puerto Rico and Vieques, used to promote or generate tourism; (2) Tano access, administration
and management of Sacred Sites, Burial Sites, Ceremonial Centers and places, Funerary and
Ceremonial Objects, and Ancestral Remains throughout the Island, must be respected through the
implementation of proper spiritual protocols; and (3) that all governmental projects, laws,
regulations that impact upon Tano Rights including tourism projects be carried out with the free
prior and informed consent of the Tano People, in order to protect and safeguard the integrity of
local Tano culture, traditions, customs and spirituality.
54

In particular, the United Confederation of Tano People (UCTP) draws attention to racially
discriminatory violations of human rights and fundamental freedoms with respect to the Caguana
Ceremonial Center and Jcanas (P029 archeological site) Caguana Ceremonial Center is a
National Historic Landmark under the management of the United States National Park Service
(NPS) located in Utuado, Puerto Rico. Additionally, Puerto Ricos Department of Natural
Resources deferred decision making at Jcanas in Ponce, Puerto Rico to U.S. federal agencies,
and denied the right of the Tano People to free prior and informed consent, and selfdetermination. Consequently, the Tano People continue to be denied entry into Jcanas for
religious purposes. The right to consultation with regard to access to this Sacred Site, including
Burial Site, Funerary Objects and Ancestral Remains located at and removed from Jcanas to an
unverified location in the U.S. mainland by the U.S. Army Core of Engineers, was consciously
violated by said agency. The specific exclusion of Tano Peoples by the Army Corp of Engineers
in the consultation process with regard to Jcanas violates the National Historic Preservation Act
with respect to notice and consultation with the Tano People, interested parties as defined by
the Act.
Additionally, Tano have been denied entry into the Caguana Ceremonial Center and community
members forced to pay admission to enter and pray, then denied the right to sing their ceremonial
songs and dance, and play their drums. Among other violations, the UCTP has duly noted the
mismanagement and endangerment of the Sacred Stones that line the Ceremonial Batey (plazas)
at Caguana, the failure to make provisions for Indigenous community access, and the violation of
Tano spiritual protocols.
Access to sacred and ceremonial places in Borikn (Puerto Rico) are vital to Tano identity,
freedom of thought, conscience and religion, as well as the right to equal participation in cultural
activities. ICERD Article 5, for instance, is directly applicable in this case. Indeed, the ICERD
and the Treaty of Paris make it clear that the United States must be compelled to recognize its
human rights obligations to the Tano Peoples and all Indigenous Peoples within Territories and
Insular areas over which the U.S. continues to exert sovereignty. These Insular Areas include
the Commonwealth of Puerto Rico; Guam, an unincorporated, organized territory of the United
States; American Samoa, an unincorporated, unorganized territory of the United States; the U.S.
Virgin Islands, an unincorporated, organized territory of the United States; and the Northern
Mariana Islands, a self governing commonwealth in political union with the United States.
Case L: Western Shoshone Nation
Contact: Western Shoshone Defense Project, 242 2nd Street, Crescent Valley NV 89821 Tel:
(775) 468-0230
This summary of the Western Shoshone Nation case has been provided for illustrative purposes.
The Co-Submitters of this Alternative Report express their support for the submission of another
Alternative Report to the 85th Session of the CERD regarding Western Shoshone and the Review
of the United States, by the Western Shoshone Defense Project.
In 1863, the Western Shoshone Nation signed the Treaty of Ruby Valley with the United States,
relinquishing no land whatsoever but permitting peaceful transit of settlers across their lands on
the way to settle and mine gold in neighboring California. By the turn of the century, the US had
claimed jurisdiction over nearly all Western Shoshone lands, now known as Nevada, in blatant
violation of the Treaty of Ruby Valley. The Indian Claims Commission (ICC), established by the
55

US in 1946 to adjudicate Treaty violations and other land claims by Indigenous Peoples, heard
the Western Shoshone case in 1974, with the US government representing the Shoshone in a case
against their own government. No Shoshone were allowed to testify. The US claimed that they
had acquired Western Shoshone lands through gradual encroachment beginning in the 1870s.
A monetary settlement was awarded to the Western Shoshone by the ICC at the price of 15 cents
an acre, the estimated land value in 1872, for mineral-rich land that was never for sale in the first
place.
Because the ICC authorized this payment, which was then accepted unilaterally by the US
government as trustee for the Western Shoshone, the United States has continued to claim that
the case was settled. The US makes this claim, despite the fact that Western Shoshone people
continue to dispute it and have pending actions both at the United Nations and the Organization
of American States human rights systems.
In 1992, the Western Shoshone submitted their case to the Inter-American Commission which
examined the relevant land title claims as well as the settlement process used by the ICC and
the US courts. The Inter-American Commission concluded that these processes were not
sufficient to comply with contemporary international human rights norms, principles and
standards that govern the determination of Indigenous property interests.
After the US refused to abide with this outcome or to change their policies whatsoever as a result,
the Western Shoshone moved forward on their urgent action submission to the UN Committee on
the Elimination of Racial Discrimination (CERD). The CERD also expressed concern that the
United States position was made on the basis of processes before the Indian Claims
Commission, which did not comply with contemporary international human rights norms as
stressed by the Inter-American Commission:
The Committee is concerned by the State partys position that Western Shoshone peoples legal
rights to ancestral lands have been extinguished through gradual encroachment, notwithstanding
the fact that the Western Shoshone Peoples have reportedly continued to use and occupy the
lands and their natural resources in accordance with their traditional land tenure patterns. The
Committee further notes with concern that the State partys position is made on the basis of
processes before the Indian Claims Commission, which did not comply with contemporary
international human rights norms, principles and standards that govern determination of
Indigenous property interests, as stressed by the Inter-American Commission on Human Rights
in the case Mary and Carrie Dann versus United States (Case 11.140, 27 December 2002).
Despite the CERDs concerns expressed on this and other occasions to the US regarding the
ongoing violations of Western Shoshone human rights, activities being carried out on Western
Shoshone lands in violation of their Free Prior and Informed Consent and Treaty rights have
continued and in fact have increased in intensity and scope.
For example, the Western Shoshone have continued to suffer the impacts of mining carried out
by Barrick Gold Corporation, based in Toronto Canada, and permitted by the United States. Of
particular concern to the Western Shoshone has been the destruction and desecration of the
sacred mountain Mt. Tenabo where a massive open pit gold mine is continuing to move forward
despite their clear and consistent opposition.

56

As Western Shoshone grandmother Joyce McDade stated at a protest by the Western Shoshone
on January 18th 2009, Denabo has special significance for Western Shoshone, it means the
writing on the rocks walls of the mountain put there by our Creator. We go to pray to our
Creator to give us strength to keep us going. How can we pray to our creator when the place is
being blown up?
Barrick has been engaged in gold mining operations in Western Shoshone Treaty Territory
known as Nevada USA since 1965, producing massive environmental and cultural destruction.
In November 2008, nearly two years after the CERD issued the recommendation to Canada
regarding preventing human rights violations by Canadian Corporations, Barrick carried out a
massive clear cut of pine trees to make way for a huge open pit gold mine known as the Cortez
Hills Expansion Project. This took place on one side of Mt. Tenabo, a mountain in the centre of a
sacred area called Newe Sogobia by the Western Shoshone used for sweat lodges and other
ceremonies, as well as traditional food and medicinal plant gathering.
Western Shoshone Elder Carrie Dann who visited the site after these pine trees (an important
source of the traditional food called pinon nuts) were clear cut and viewed the destruction
including piles of uprooted trees and unfenced polluted ponds. She called it a war zone against
the trees by the Barrick Gold Company.
In a written statement submitted to the International Indian Treaty Council on January 9th 2012,
Larson Bill of the Western Shoshone Defense Project affirmed that this struggle is continuing and
that no improvement has yet been seen in the behavior of Barrick Gold corporation or the US
government that permits these operations in spite of their Treaty and human rights obligations to
the Western Shoshone Nation. Mr. Bill further stated that: Under the shadow of the U.S.
policies and laws, the Canadian mines will continue to overlook the sacred connection of the
Shoshone People to their lands and all living things upon it.

57

International Indian Treaty Council (IITC) Affiliates in Lands and Territories currently
part of or under the jurisdiction of the United States:
Indigenous Tribal and Traditional Nation Governments: Pit River Tribe (California), Wintu
Nation of California, Redding Rancheria (California), Tule River Nation (California), Muwekma
Ohlone Nation (California), Coyote Valley Pomo Nation (California), Round Valley Pomo
Nation (California), Independent Seminole Nation of Florida (Florida), Native Village of Venetie
Tribal Government/Arctic Village Traditional Council (Alaska), Chickaloon Village Traditional
Council/Chickaloon Native Village (Alaska), Stevens Village Traditional Council (Alaska),
Native Village of Eklutna (Alaska).
Indigenous Organizations, Networks, Communities and Societies: National Native American
Prisoners' Rights Coalition, White Clay Society/Blackfoot Confederacy (Montana), Indigenous
Environmental Network (National), Columbia River Traditional Peoples (Washington/Oregon),
Rural Coalition Native American Task Force (Minnesota), Yoemem Tekia Foundation, Pascua
Yaqui Nation (Arizona), Tohono O'odham Nation Traditional community (Arizona), Oklahoma
Region Indigenous Environmental Network (Oklahoma), Wanblee Wakpeh Oyate (South
Dakota), IEN Youth Council, Cactus Valley/Red Willow Springs Big Mountain Sovereign Dineh
Community (Arizona), Leonard Peltier Defense Committee, Eagle and Condor Indigenous
Peoples' Alliance (Oklahoma), Seminole Sovereignty Protection Initiative (Oklahoma)
Mundo Maya (California), Los Angeles Indigenous Peoples Alliance (California) American
Indian Treaty Council Information Center (Minnesota), Vallejo Inter-Tribal Council (California),
Three Fires Ojibwe Cultural and Education Society (Minnesota), California Indian
Environmental Alliance (CIEA), Wicapi Koyaka Tiospaye (South Dakota), Indigenous Peoples
Working Group on Toxics (National), North-South Indigenous Network Against Pesticides
(multi-regional based in US), the International Indian Womens Environmental and Reproductive
Health Network (multi-regional based in US) and United Confederation of Taino People: Borikn
(Puerto Rico/United States), Kiskeia, (Dominican Republic), Barbados, Guyana (Arawaks),
Bimini (United States), Jittoa Bat Natika Weria (Yaqui Nation, US and Mexico.

58

Case E: Gila River Attachment

Attachment*to*Case*I:*Muscogee*Nation*Update

Case K: Pit River Nation & the Advocates for the Protection of Sacred Sites
Attachments

10

Military Sexual Assault: Advocacy in Reporting Assaults and Countering Retaliation

Sexual assault is a problem of epidemic proportions in the military. Despite educational
campaigns and recent policy changes, the military has been unable to bring the problem under
control. Rape and assault figures remain high, with many servicemembers afraid to report them out
of fear of retaliation. This workshop will describe the military culture in which assaultive behavior
flourishes, and provide information on representing assault survivors in reporting assaults,
weathering investigations, and challenging all-too-frequent reprisals for reporting. Law students
and legal workers, as well as attorneys, are encouraged to attend, since advocacy in this area can
be provided by non-attorneys.
The CLE will begin with an examination of military culture and the profound sexism which
underlies military sexual assaults, with veterans providing practical discussion of the atmosphere
in which assaults take place, and the problems encountered by servicemembers who seek to
report them. The workshop will include an overview of the Department of Defenses sexual assault
policy and the regulations governing reporting assaults and the rights of survivors. It will include
practical training on representing members making reports and participating in investigations and
prosecutions, and on advocacy when survivors experience informal harassment or formal reprisals
for making reports.
Presenters:
Kathleen Gilberd is a legal worker in San Diego, CA, working primarily in the area of discharge
upgrades and discharge review. She is the executive director of the Military Law Task Force, and a
member of the board of directors of the national GI Rights Network. With Marjorie Cohn, she is
co-author of Rules of Disengagement: The Politics and Honor of Military Dissent, and she has
written extensively on military personnel policies. Most recently, she authored Military Sexual
Violence: A Guide to Sexual Assault and Sexual Harassment Policies in the US Armed Forces, a
mini-handbook for servicemembers.
Erica Slone was born in Southeastern, Ohio. Disenchanted with her conservative hometown, in
2002 she joined the U.S. Air Force. Serving six years, Slone deployed multiple times in support of
the Global War on Terror. After separating in 2008, she studied art at The Ohio State
University. Through her own difficulties readjusting into civilian life, Slone became concerned
with the lack of support for returning veterans and civilian societys lack of understanding
surrounding service and our nations wars. She became involved in OSUs newly developed
Veterans Learning Community in which veterans transform their experiences into relevant
research. In January 2010, Slone received a grant through OSUs Urban Arts Space to co-curate
the Visualizing the Experiences of War (ViEW) exhibition. ViEW broadened the narrative of the
current wars by having original artworks expressing personal stories of war created through
veteran and artist collaborations. In 2012, Slone curated Overlooked/Looked Over, a group
exhibition of women veterans art for the National Veterans Art Museum, Chicago, IL. Currently,
Erica Slone is an independent artist, organizer with Iraq Veterans Against the War, and curator at
the National Veterans Art Museum, where most recently she has coordinated the Not About
Bombs exhibition and Art and Identity Beyond Conflict panel discussion.
Sabrina Waller served 5 years of honorable active duty service in the United States Navy (19982003). She deployed in support of NATO operations during the Kosovo conflict in 1999, where

she was 1 of 500 females aboard an aircraft carrier of 5000 sailors. She made the conscious
decision to get out of the military at her EAOS/ETS in 2003, a few months after the invasion of Iraq.
In 2011, she organized with Iraq Veterans Against War and National Nurses United to win major
improvements at the Chicago VA medical center, including better care for women veterans and an
increase in nursing staff.
Kerry McLean is a human rights lawyer and consultant. She has worked with organizations around
the world including NGOs in Cambodia, Hungary, Liberia, Kenya and South Africa.
Ms. McLean has various areas of expertise, including women's rights, racial discrimination,
elections, United Nations advocacy, capacity building and human rights training. Ms. McLean has
served as an election observer in four countries.

SUMMARY OF SEXUAL ASSAULT PROVISIONS

IN THE 2014 NATIONAL DEFENSE AUTHORIZATION ACT
The new National Defense Authorization Act (NDAA) of 2014, enacted on Dec. 26, 2013 contains a
number of significant changes to the UCMJ and court-martial procedure, some but not all are focused on
military sexual assault cases. These changes are summarized below; their implications for court-martial
practice will be discussed in future issues of On Watch.
Section 1701 of the NDAA amends UCMJ Article 6 by adding 6b, Rights of the victim of an offense
under this chapter. This amendment, not limited to victims of sexual assault, provides for the right to be
reasonably protected from the accused; the right to notice of confinement hearings, court-martial
proceedings, public proceedings of the service clemency and parole board, and the release or escape of
the accused; the right not to be excluded from such hearings unless the judge or investigating officer
determines on clear and convincing evidence that the victims testimony would be materially altered by
hearing other testimony; the right reasonably to be heard at confinement hearings, sentencing hearings
and the clemency and parole board; the right reasonably to confer with government counsel in these
proceedings; the right to restitution; the right to proceedings free from unreasonable delay; and the right
to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under
this chapter. Appropriate changes to the Manual for Court-Martial are to be recommended, and
appropriate regulations are to be prescribed, within one year of enactment of the NDAA.
Section 1702 provides for revision of Article 32 and Article 60. Article 32 hearings, now to be termed
preliminary hearings, are to determine probable cause and court-martial jurisdiction, consider the form of
charges and recommending disposition of the case. Formerly, the purpose of the hearing was to determine
the truth of the matter, giving much more scope for discovery by the defense. Except in exceptional
circumstances, preliminary hearings should be conducted by Judge Advocates, and where practical this
JAG will be equal to or senior in grade to government and defense counsel. Victims may not be required
to testify; if they decline to do so, they will be deemed not available. Article 32 amendments will become
effective one year after the NDAAs enactment.
This section also limits command prerogative and discretion, amending Article 60 of the UCMJ. Except
for qualifying offenses (those where maximum punishment of confinement is less than two years, and the
sentence adjudged does not include a punitive discharge or confinement for more than six months, but
excluding sexual assault offenses), convening authorities may not disapprove, commute or suspend all or
part of the sentence of a court-martial without a written explanation to be made part of the record of trial.

They may not disapprove, commute or suspend all or part of a sentence of confinement for more than six
months or a punitive discharge, except upon the recommendation of trial counsel for the accuseds
assistance in investigation or prosecution, or pursuant to a pre-trial agreement. These provisions take
effect 180 days after enactment of the NDAA.
Section 1703 eliminates the five-year statute of limitations for certain sex-related offenses - rape or sexual
assault, or rape or sexual assault of a child for offenses committed on or after the NDAAs enactment.
Section 1704 provides that defense counsel will make any request to interview the victim of a sex-related
offense through trial counsel. If the victim requests it, the interview may take place only in the presence
of trial counsel, counsel for the victim, or a Sexual Assault Victim Advocate. (Sex-related offenses here
include violations or attempted violations of Articles 120, 120a, 120b, 120c or 125.) This provision
apparently takes effect immediately.
Section 1705 amends Article 56 to include trial by general court-martial and mandatory dishonorable
discharge or dismissal for violation of Article 120(a) or (b)and for forcible sodomy under Article 125, as
well as attempts to commit these offense. These amendments are to take effect 180 days after enactment
of the NDAA for offenses committed on or after that date.
Section 1706 amends Article 60 to allow victims of offenses an opportunity to submit matters for
consideration by the convening authority in clemency proceedings, and to limit the convening authoritys
consideration of victims character unless such matters were allowed as evidence at trial.
Section 1707 repeals consensual sodomy as an offense, changing Article 125 to include only forcible
sodomy and bestiality.
Section 1708 modifies the discussion section of Rule 306 of the Manual for Courts-Martial to eliminate
the character and military service of an accused from the matters a commander should consider in his or
her initial decision on disposition of an offense. The Rule itself is not altered. This change is to take effect
no later than 180 days after the NDAAs enactment.
Section 1709 requires promulgation of regulations prohibiting retaliation against an alleged victim or
another for reporting a criminal offense, making retaliation a violation of Article 92. Here, retaliation is
defined to include:
taking or threatening to take an adverse personnel action, or withholding or threatening to withhold a
favorable personnel actionbecause the member reported a criminal offense; and

ostracism [sic] and such acts of maltreatment as designated by the Secretary of Defense, committed by
peers of a member of the Armed Forces or by other persons because the member reported a criminal
offense.
Implementing regulations are to be promulgated no later than 120 days after enactment of the NDAA.
This section also requires that the Secretary of Defense submit a report within 180 days of the NDAAs
enactment setting out recommendations on whether or not retaliation should be the subject of a new
punitive article of the UCMJ.
Section 1711 adds a new section 657 to chapter 37 of Title 10, prohibiting enlistment or commissioning
of persons for rape or sexual assault, forcible sodomy, incest, and attempts at these offenses. (This repeals
a similar section in the 2013 NDAA.)
Section 1712 changes 10 USC 673(b) to include the Coast Guard in regulations on requests for transfers
by victims of sexual assault.
Section 1713 would add a new 10 USC 674, temporary administrative reassignment or removal of a
member on active duty accused of committing a sexual assault or related offense. Under DoD and
service guidance, commanders would have authority to temporarily reassign or remove members accused
of offenses under Article 120, 120a, 120b, 120c, 125 or attempts at these offenses. The section notes that
transfers would not be a punitive measure, but rather have the purpose of maintaining good order and
discipline.
Section 1714 amends 10 USC 1034, the Military Whistleblower Protection Act, in several places. It now
covers individuals who are being perceived as making or preparing a complaint, as well as those who
make or prepare to make complaints. Complaints of wrongdoing, etc., made in court-martial proceedings
are now covered under the Act. This will include testimony, or otherwise participating in or assisting in
an investigation or proceeding related to a covered communication. The definition of reprisals is
expanded to include making or threatening to make a significant change in the duties or responsibilities
of a member of the armed forces not commensurate with the members grade. Communications will not
be excluded from protection because the information had previously been disclosed, the communication
was not made in writing or while on duty, or because of the members motive in making the disclosure,
nor if the member reasonably thought that the person to whom the disclosure was made was participating
in a covered activity (for instance, participating in an investigation). The time to submit complaints of
violation of the Act is changed from 60 days to one year. The section also includes action to be taken by
the service Secretary on receipt of an IG investigation, including disciplinary action against the person

responsible for the reprisal. Finally, the possibility of a Board for Correction of Military Records
evidentiary hearing for a victim of reprisals is to be available when it would benefit the victim, not only
when the case is unusually complex.
Section 1715 also amends 10 USC 1034, to add complaints of rape, sexual assault or other sexual
misconduct in violation of Article 120 through 120c to the section protecting complaints about sexual
harassment.
Section 1716 provides for Special Victims Counsel (SVC) for victims of sex-related offenses who are
eligible for legal assistance under 10 USC 1044. Victims of sex-related offenses will be entitled to the
assistance of JAG counsel whether their reports are restricted (confidential) or unrestricted. In addition to
consultation about sexual assault policy, the potential for civil litigation against other parties (other than
the DoD), and the like, this assistance includes consultation on potential criminal liability of the victim
for collateral misconduct. SVCs will also accompany victims to any proceedings regarding reporting,
investigation and prosecution of the offense. The section makes it clear that this is an attorney-client
relationship. Victims will be offered the option of SVC assistance when they make a report or seek
assistance from a Sexual Assault Response Coordinator, Victim Advocate, military criminal investigator,
victim/witness liaison, trial counsel, health care provider and any others designated by the service
secretary. Declining the help of SVCs does not preclude subsequent requests for their assistance. For this
section, sex-related offenses include Articles 120, 120a, 120b, 12c or 125, as well as attempts.
Section 1721requires the service Secretaries to track commanding officers compliance in conducting
climate assessments as required by 10 USC 1561, subsection (a)(3).
Section 1722 requires the Independent Panel on Assessment of Military Response Systems to Sexual
Assault to submit a report in 12 rather than 18 months.
Section 1723 mandates retention of restricted sexual assault reports for 50 years or the length of time
required to save unrestricted reports; formerly, these were kept only at the request of victims.
Section 1724 requires the services to ensure timely access to Sexual Assault Response Coordinators for
members of the reserve and guard who are assaulted during performance of duties or assaulted by a
member of the guard or reserves.
Section 1725 deals with qualifications and selection of sexual assault prevention and response personnel,
and requires reports on their training, qualification and experience. It also requires the assignment of
sexual assault nurse examiners at military medical facilities with full-time emergency departments, and

the availability of nurse examiners to victims treated at facilities lacking full-time emergency
departments. The Secretary of Defense is to prepare a report on the training and certification of personnel
no later than 120 days from enactment of the NDAA.
Section 1726 gives the DoD Sexual Assault Prevention and Response Office additional duties, including
data collection with metrics to measure effectiveness of and compliance with training objectives, serving
as a liaison between DoD and other federal and state agencies on sexual assault prevention and response,
and overseeing development of strategic program guidance and making recommendations on
modifications to policy, law and regulations for resources in support of the SAPR program.
Section 1731gives additional responsibilities to the previously-established DoD response system panel
to assess the impact of removing UCMJ disposition authority from the chain of command; to assess
whether SVCs role should be expanded to include legal standing to represent victims during
investigation and disciplinary proceedings in connection with the prosecution of the offense; to assess the
feasibility and appropriateness of extending to victims of UCMJ crimes the right afforded a civilian crime
victim under 18 USC 3771; to evaluate the means by which names and identifying information of
offenders collected in restricted reports could be compiled into a protected database available only to
military criminal investigators, SARCs, etc., to identify individuals who are multiple offenders; to
examine the military and civilian clemency systems, including whether clemency could be reserved until
the completion of military appeals; to assess whether DoD should publish a formal statement of what
accountability, rights and responsibilities a member of the Armed Forces has with regard to matters of
sexual assault prevention and response.
Under the same section, DoDs judicial proceedings panel is to assess the likely consequences of
amending Article 120 to cover commission of a sexual act upon another by abusing ones position in the
chain of command of the other person to gain access to or coerce the other person; to assess 10 USC
1044e and recommend any appropriate modifications; to assess the implementation and effect of
mandatory minimum sentences under Article 56b of the UCMJ as added by section 1705 of the Act, and
consider the appropriateness of mandated minimum sentences for other offenses; to assess the adequacy
of provisions for compensation and restitution of victims of UCMJ offenses and make recommendations
on providing forfeited wages of incarcerated offenders to victims as compensation.
Section 1732 calls for a review of the criminal investigative services practices in responding to UCMJ
offenses, including the extent to which they make recommendations as to whether offenses are founded or
unfounded. Following this review, which is to be done no later than 180 days after enactment of the
NDAA, DoD is to develop a uniform policy for the investigative services, in which it will consider the

feasibility of using case determinations (such as the uniform crime report) used by civilian law
enforcement agencies.
Section 1733 requires that the Secretary of Defense review the adequacy of training on sexual assault
prevention and response, with a report of the review to be made no later than 120 days after enactment.
The review will identify common core elements to be included in all training and recommend other
appropriate modifications for training.
Section 1734 requires a review of the progress made in developing comprehensive policy on retention of
and access to sexual assault evidence and records (as required by section 586 of the 2012 NDAA), and a
report back to the Committees on Armed Services no later than 180 days after the NDAAs enactment.
Section 1735 mandates review of the Office of Diversity Management and Equal Opportunity to
determine whether sexual harassment cases should be evaluated or addressed within this office; evaluate
how DMEO works with SAPRO to address harassment; identify any resource and personnel gaps in
DMEO that affect this work; and assess its capability to track incidents of sexual harassment.
Section 1741 provides enhanced protection for prospective and new members of the military during entrylevel processing and training. This section addresses both recruitment and initial training. The service
secretaries are to develop policies that define and proscribe inappropriate and prohibited relationships,
communication, conduct or contact (including consensual actions) between servicemembers who
exercise authority or control over, or supervise prospective members and members in entry-level
processing or training. The section specifically mentions recruiting personnel, MEPS personnel, and
members working at entry-level training facilities. Violators will be subject to disciplinary action, and to
administrative separation processing in response to the first substantiated violation of this policy, if the
member is not punitively discharged. Separation will be based on the full facts of the case, not merely a
court-martial conviction. Substantiated violations are defined as those with court-martial convictions or
imposition of nonjudicial punishment. Implementing regulations are to be published no later than 180
days after enactment of the NDAA. The Secretary of Defense will also prepare a report containing his
recommendations regarding the need to create a UCMJ article for violations of this policy.
Section 1742 requires commanders who receive a report of a sex-related offense in their chain of
command to act immediately by referring the report to the military criminal investigative organization for
that service.
Section 1743 requires preparation of eight-day incident reports in response to unrestricted reports of
sexual assault, to be provided to the installation commander, if appropriate, the first officer in the grade of

0-6 and the first general or flag officer in the victims and alleged offenders chains of command. The
reports must detail action that has been or is being taken on the case to provide the victim support, refer
the case to the appropriate investigative service and provide initial notification of a serious incident, if
that has not already been done. Implementing regulations are to be promulgated within 180 days of
enactment of the NDAA.
Section 1744 mandates review of decisions not to refer charges to court-martial in sex-related offenses,
with review policies set out by the secretaries of the services. The policies are to include requirements that
consideration be given to the victims statement provided during the criminal investigation, and that
determinations be made as to whether the victims statement and views concerning disposition of the
offense were considered by the convening authority in making the referral decision. For this section, sexrelated offenses include Article 120(a) or (b), forcible sodomy under Article 125, and attempts to commit
these offenses.
The section also provides that, in any case where a staff judge advocate recommends that charges of a
sex-related offense be referred to court-martial and the convening authority declines to do so, the
convening authority will forward the case file to the service secretary for review. Where staff judge
advocates recommend against referral, and the convening authority concurs, the case file will be reviewed
by the next superior commander with general court-martial convening authority. The case file will
specifically include the victims statements, such as statements to the chain of command and to the
convening authority; a written statement explaining the convening authoritys reasons; and a certification
that the victim was informed of the convening authoritys decision. The victim will be notified of the
results of such review.
Section 1745 requires that, when members are convicted at court-martial or receive nonjudicial
punishment for a sex-related offense, a notation to that effect will be placed in their service record,
regardless of rank, to reduce the likelihood that repeat offenders will escape notice by subsequent
commands. Commanders will be required to review files for such notations upon members transfer or
permanent assignment. Members will have the right to challenge such entries.
Section 1746 focuses on prevention of sexual assault at military academies, requiring that a section on
assault be included in the curriculum section dealing with honor, respect and character development. This
training will include the history of the problem of sexual assault, reporting procedures, victims rights,
mandatory punitive discharge or dismissal, etc., and must be provided within two weeks of recruits
arrival at the academies.

Section 1747 requires that members completing Standard Form 86 of the Questionnaire for National
Security Position be notified that they may answer no to the question about consulting a health care
provider if they are victims of sexual assault and the consultation occurred with respect to an emotional
or mental health condition strictly in relation to the sexual assault.
Section 1751 is a sense of Congress provision holding that commanding officers are responsible for
command climates in which sexual assault allegations are properly managed and victims can report all
criminal activity without fear of retaliation, including ostracism and group pressure from other members
of the command. The section suggests that maintenance of such a command climate is a proper subject
for evaluation in regular evaluation systems, and that failure to maintain this command climate can be an
appropriate basis for relief from command.
Section 1752 is another sense of Congress provision, that offenses under Article 120(a) and (b), forcible
sodomy under Article 125, and attempts to commit these offenses should be disposed of by court-martial
rather than nonjudicial punishment. Where nonjudicial punishment or administrative action is used
instead of court-martial, the disposition authority should include a justification for the action in the case
file.
Section 1753 states that it is the sense of Congress that discharges in lieu of court-martial should be
exceedingly sparing in cases of rape, sexual assault, forcible sodomy or attempts at these offenses, and
used only when the facts of the case clearly warrant such discharge. Victims should be consulted prior to
determinations to discharge offenders in lieu of court-martial. The section states that such discharges
should be characterized as other than honorable.

MILITARY LAW TASK FORCE OF THE NATIONAL LAWYERS GUILD

Military Sexual Violence

A Guide to Sexual Assault and Sexual Harassment
Policies in the U. S. Armed Forces
for Servicemembers, MSV Survivors and Their Advocates
By Kathleen Gilberd

Introduction

Table of Contents
Sexual Assault Policy

Sidebar: Useful Regulations on Sexual Assault

Reporting Sexual Assault

Investigations and Prosecutions

Reprisals and Retaliation

Sexual Harassment Policy

10

Sexual Harassment Complaint Procedures

10

Sidebar: Useful Regulations on

Sexual Harassment

11

Retaliation

12

Other Complaint Procedures

14

Additional Resources

16

For
and
Kathy
Johnson,
Jim Klimaski, Jon Pinkus
a mobile-device-friendly
version
of Btrad
his
s well tahis
s additional
Thomason document
assisted in eaditing
publication. Rena
resources/updates,
Guay contributed
proofreading and vdisit
igital production.

MilitaryLawHelp.com

While sexual assault and sexual harassment have long

been serious problems in the armed forces, in recent
years they have become epidemic. DoDs own reports
estimate that over 26,000 servicemembers, both men
and women, were assaulted in 2012. The reports also
show that many members are afraid to report assaults
or harassment -- often out of fear of command
retaliation -- and that when reports are made, they
are often ignored or retaliation does, in fact, occur.
This publication gives an overview of the policy for
reporting sexual assault and harassment, along with
remedies for retaliation and harassment -- critical
information everyone in the military should have
before they need it. It is written for assault and
harassment victims/survivors, but it is just as useful
for lay counselors or attorneys assisting victims in
securing their rights.
Because of the increasing attention to this problem,
public outrage, and congressional scrutiny, this area
of military law is currently changing. Before taking
action, we recommend consulting one of the groups
listed under the Resources section, or visit our
website for any recent policy changes. The groups
weve listed can also provide referrals to military
counselors or attorneys to assist a victim in making a
complaint and avoiding reprisals. Updates on military
sexual assault policy are also posted on our website at
nlgmltf.org

Sexual Assault Policy

Basics of the Policy

DoD policy requires that all commands take
action to prevent sexual assaults, to punish
offenders and to treat survivors with dignity and
with respect for their privacy. Several years ago
a DoD-level Sexual Assault Prevention and
Response Office (SAPRO) was established, with
parallel offices in each of the service branches.
These offices are supposed to oversee service-
wide education programs to prevent assaults.
Each local command must have a Sexual Assault
Response Coordinator (SARC) and a Sexual
Assault Victims Advocate (SAVA or VA) to
respond to reports of sexual assault. Largely
because of Congressional pressure, the policy
has been updated and expanded repeatedly.

All servicemembers, men and women, should

become familiar with the sexual assault policy,
whether or not theres an immediate need. By
becoming familiar with the policy, the correct
military procedures, and some sources of help,
you can protect not only yourself but other
servicemembers.
The Department of Defense defines sexual
assault as follows:
For the purposes of this Directive and
SAPR [the Sexual Assault Prevention and
Response Program] awareness training and
education, the term sexual assault is
defined as intentional sexual conduct,
characterized by use of force, threats,
intimidation, abuse of authority, or when
the victim does not or cannot consent.
Sexual assault includes rape, forcible
sodomy (oral or anal sex), and other
unwanted sexual conduct that is
aggravated, abusive, or wrongful (to
include unwanted and inappropriate sexual
contact), or attempts to commit these acts.
Consent means words or overt acts
indicating a freely given agreement to the
sexual conduct at issue by a competent
person. An expression of lack of consent
through words or conduct means there is
no consent. Lack of verbal or physical
resistance or submission does not
constitute consent. A current or previous
dating relationship by itself or the manner
of dress of the person involved with the
accused in the sexual conduct at issue shall
not constitute consent. (DoD 6495.01,
Encl. 2, sec. E2.1.13.)

Despite these policies and programs, assaults are

still commonplace, with many commands
ignoring or downplaying them. Some commands
use creative methods to claim that assaults
didnt really occur, and some harass or punish
those who report assault.

Sexual assault is punishable under the Uniform

Code of Military Justice (UCMJ). Article 120
covers rape, aggravated sexual assault and
similar offenses. Forcible sodomy (oral or anal
sex) is punishable under Article 125. Some
offenses are crimes under Article 134, the
general article. Congressional and DoD policy
encourage courts-martial of assaulters, but
convening authorities have a great deal of
discretion in deciding whether, and how, to
punish them. As a result, some assaulters just
receive non-judicial punishment under Article 15
of the UCMJ (called captains mast in the Navy
and office hours in the Marine Corps), some are
given administrative discharges, and some
receive administrative reprimands instead of
disciplinary action. Some, of course, receive no
punishment at all.

MLTF

Military Sexual Violence

The sexual assault policy has been improved in

the last few years, but it still has weaknesses,
and commands are not consistent in enforcing it.
The Military Law Task Force (MLTF) urges
anyone who has been assaulted to consider
reporting the assault and to get legal assistance
and personal support as soon as possible if
you are safe, even before making a report to the
military. Help is available from the Task Force
and other groups listed in the resource section
of this document. These groups can help you use
the militarys assault reporting system and
military services more effectively, and can help
to protect you against reprisals or harassment
for making reports. Support is also available
from local rape crisis centers.

Useful Regulations on Sexual Assault

Department of Defense: DoD Directive
6495.01 (PDF), Sexual Assault Prevention
and Response (SAPR) Program and DoD
Instruction 6495.02 (PDF), Sexual Assault
Prevention and Response Program
Procedures

Army: AR 600-20 (PDF), Army Command
Policy, Chapter 8, Sexual Assault Prevention
and Response Program

Navy: SECNAVINST 1752.4A (PDF), Sexual
Assault Prevention and Response

Marine Corps: MCO 1752.5B, Sexual Assault
Prevention and Prevention Program

Air Force: Air Force Policy Directive 36-60
(PDF), Sexual Assault Prevention and
Response Program and Air Force Instruction
36-6001 (PDF), Sexual Assault Prevention
and Response Program

Reporting Sexual Assault

The current policy on sexual assault is designed
to encourage survivors to report assaults,
allowing them to make confidential (restricted)
reports or non-confidential (unrestricted)
reports. Only with unrestricted reports can the
assault be investigated and the assaulter be
prosecuted. Either way, if you report a sexual
assault, a SARC or Victims Advocate should
respond at once to help you get immediate
medical care and any needed follow-up care and
counseling. They should explain restricted and
unrestricted reporting and your rights. They
should tell you that you have the right to consult
a military attorney, called Special Victims
Counsel (SVC), and also that you can use a
civilian victims advocate. Both the SARC and the
SAVA are supposed to assist in maintaining as
much privacy for you as possible, whether the
report is restricted or unrestricted.

NOTE: Regs in this area are subject to update;

check MLTFs web site for the latest links. If you
are reading on paper; visit website for digitized
version with links: www.nlgmltf.org or
www.militarylawhelp.com.

with either a SARC or a SAVA, and they should
leave if you make that desire known. While
these personnel can be helpful, remember that
most Victims Advocates have limited experience
and training on these issues and regs, and are
generally performing collateral (additional)
duties to their primary MOS or rate. They bring
as much or as little support to the job as their
own character and incentive require. They are
not advocates in the legal sense and are not
likely to argue on your behalf if the command or
investigators ignore your rights. But SAVAs are
supposed to provide all the information you

Although under current regulations the SARC or

Victims Advocate must offer to provide
information and help, you are not required to
accept them. You have no obligation to speak

MLTF

Military Sexual Violence

need in order to make decisions about the case

and to be your own advocate.

the Marine Corps uses Uniformed Victims

Advocates in addition to the Victims Advocates
available through its family services programs.
Chaplains may be able to receive restricted
reports, though the DoD regulations are unclear
on this and some chaplains may vary in their
interpretation of religious confidentiality and
privilege.

Health care providers, SARCs and Victims

Advocates are required to respond when you
make a report. If youve made an unrestricted
report, an investigator should respond as well.
Under the DoD Directive, sexual assault cases
are to be designated as emergency cases
requiring expedited response and medical
treatment, regardless of whether or not physical
injuries are evident.

A restricted report provides the greatest privacy,

as only the individuals mentioned above, and a
SVC if you want one, should know that you have
been assaulted. While the CO will be told that an
assault has occurred, he or she should not be
given your name or that of the assaulter. But this
confidentiality also means the assaulter will not
be investigated or prosecuted unless
independent evidence exists.

Unfortunately, one important person is left out

of this first-response team an attorney. The
policy doesnt trigger automatic advice or
assistance from a JAG. But whether you make a
restricted or unrestricted report, you should be
told by the SARC or SAVA that you have the right
to consult with a JAG under a new special
victims counsel (SVC) program, and it is often
valuable to do so, whether or not you have
civilian legal help. Like civilian attorneys, JAGs
can give you advice about your rights and
intervene with the command if the policy isnt
followed or if the proper level of confidentiality
is not maintained. The program is new, and
varies a little from branch to branch, so it is not
yet clear how much assistance and
representation these specially-trained JAGs will
be able to provide.

Your report wont be restricted if the command

learns you have told the wrong person about
the assault anyone other than a SARC, Victims
Advocate, health care person, SVC or chaplain. A
report to military law enforcement personnel or
other command personnel will normally be
reported in full to the CO. Civilian law
enforcement agencies often forward their
reports to your command or base/ship security,
and confidentiality is lost. If you tell a roommate,
friend or co-worker about the assault, and the
information comes to the commands attention,
the privacy of your restricted report will be lost.
And if the command receives information about
the assault from an independent source (for
example, a witness or a friend of the assaulter),
it may take action on the basis of that
information.

Restricted Reporting
You have the right to make a restricted
(confidential) report, which is done by reporting
the assault directly to a SARC, Victims Advocate
or health care personnel. Health care personnel
include persons assisting or otherwise
supporting healthcare providers in providing
healthcare services, such as administrative
personnel in medical treatment facilities. Some
branches of the service have added to this list

MLTF

When you report an assault, the SARC, Victims

Advocate or medical personnel are required to
ask you to sign a Victim Reporting Preference
Statement (DD Form 2190). The form explains
your rights with restricted and unrestricted
reports, the limits of restricted reporting, and

Military Sexual Violence

some of the circumstances in which you might

lose confidentiality. SARCs and SAVAs are
allowed to encourage you to make an
unrestricted report, which the military favors,
but are not supposed to pressure you to do so.

becomes aware of this, your restricted report

may turn into an unrestricted one. If the
command receives independent evidence of the
assault, it can review the case and take
disciplinary action. In addition, SARCs may
disclose information to the command if they feel
that it is necessary to prevent or lessen a
serious and imminent threat to the health or
safety of the victim or another person. (DoD
6495.01, section E3.1.8.2) And health care
providers may reveal information to the CO if
they feel there is any possible adverse duty
impact related to the victims medical condition
and prognosis. (DoD 6495.01, section E3.1.10)

With restricted reporting, you receive full

medical and psychological care. You can request
(or refuse) a sexual assault forensic exam
(SAFE), or rape kit, to document the assault. The
information and evidence you give will be
identified by a number rather than your name.
Physical evidence must be retained for five
years, and documentary evidence (such as the
sexual assault report form) must be kept for 50
years.

You can change a report from restricted to

unrestricted at any time within a year, so some
servicemembers choose to file a restricted
report to start and then take time to consider
their options. However, once a report is
designated as unrestricted, it cannot be changed
to restricted.

Unrestricted Reporting
An unrestricted report may be made to anyone.
If you report the assault to military law
enforcement personnel or to someone in your
unit with any authority at all, they should notify
the SARC as well as the command. The SARC or
Victims Advocate should respond immediately
with the same assistance as in a restricted report
and should advise you of your right to talk with a
SVC lawyer. Youll be asked to fill out the same
Victim Reporting Preference Statement.
Information about the report will be provided to
your CO and to your branchs military criminal
investigative organization (MCIOs, which include
CID, OSI, and NCIS). Under current regs, these
agencies, and not your command, should
conduct the investigation of the assault. Many
commands have a hard time understanding this,
and think it is their job to question you and
others about the assault. You do not have to
cooperate with their efforts.

With a restricted report, you are not required to

talk to investigators or other law enforcement
personnel, or to anyone from the command. If
information wrongly travels to supervisors,
division officers, or others in the command,
though, they may want to question you.
Similarly, investigators or your command may
want to question you if they hear anything at all
about the assault from other sources. You do not
have to answer their questions or respond to
their comments. You can ask the Victims
Advocate, SARC or SVC to stop any unwanted
questioning or comments.
Its important to remember that there are
exceptions to restricted reporting, and what
starts out as a restricted report may become
unrestricted without your permission. If you talk
to others about the assault, either while
reporting it or afterwards, and the command

MLTF

With unrestricted reporting, you can ask the

command for some protection from your
assaulter. The SARC or Victims Advocate, as well
as the SVC, should explain the process for
requesting a military protective order to keep

Military Sexual Violence

the assaulter away from you, and the possibility

of moving or transferring you or the assaulter for
your safety and he or she should assist you in
making the request to the command. Thanks to
a recent congressional change, you have the
right to request a transfer within or outside of
your unit, so as to reduce the possibility of
retaliation against the member for reporting the
sexual assault or other offense.

chaplain and corpsman, and so on. You can

sometimes limit this problem by stressing to the
people who respond to your complaint, and to
your command, that you want to keep your
privacy.

Investigations and Prosecutions

Military criminal investigative services are now
charged with investigating sexual assaults;
unrestricted reports are to be reported to them
as soon as possible. Under MCIO regs, they
should investigate all sexual assaults brought to
their attention, regardless of the severity of the
assault, and they should also investigate any
threats made against the survivor. You are not
required to cooperate in an investigation,
though you should expect to get some pressure
to do so.

The command is required to respond to a

request that you be transferred within 72 hours,
though it isnt required to grant the request. If it
doesnt, then you can appeal to higher
command, which must also respond within 72
hours. This process is set out in DoD Instruction
6495.02. It includes a presumption in favor of
transfer following a credible report of sexual
assault, though commands are required to
advise you about the potential career
implications of a transfer. If you encounter
difficulty with this, a SVC or civilian legal help
may be useful in persuading the command to
provide necessary protection. Under a new
policy, you may request that the assaulter be
transferred away from you, instead. Granting or
denying this request is also up to the command.

Reporting a sexual assault and cooperating in

legal proceedings can help you protect yourself
and others, but it can also be a painful
experience, even if the military follows all of the
rules.
DoD policy requires specialized sexual assault
response training for investigative agencies,
commands, and legal personnel. Training
materials tell investigators to be sensitive about
the trauma caused by an assault and to avoid
re-victimization with unnecessary, repetitious
or humiliating questions. You should not be
questioned about unrelated sexual behavior or
your personal sexual preferences or orientation.
If any of this occurs, or the investigators are
hostile, you can halt the interview and demand
to speak with a JAG or a civilian attorney or
advocate before deciding whether to continue.
And you may choose to have a SVC, a civilian
attorney, a SAVA or an independent advocate
present during questioning. Military
investigators or others who violate these

Although an unrestricted report gives you less

confidentiality than a restricted report, the
policy still requires that your privacy be
respected. Information about the assault is
supposed to be limited to those with a need to
know. Unnecessary and repetitive questioning is
not allowed under the regs, and the regs say that
gossip and rumors should be dealt with firmly.
The SARC and CO are responsible, in theory, for
making sure that information about the assault
is shared only on a need-to-know basis. A note
of caution: some commands interpret this very
broadly, assuming that senior enlisted personnel
and officers in your immediate chain of
command should be informed, along with
personnel or admin officers, and maybe the

MLTF

Military Sexual Violence

provisions of the regs can be subject to

disciplinary action.

While attorneys for the accused have some

leeway in trying to disprove your report,
Congressional mandate and SAPR policy should
keep them from raising unrelated personal
issues or badgering or humiliating you in
interviews or in court. Nonetheless, they will
normally try to discredit you. It is important to
remember here that the prosecutor may not be
responsive to your situation and your needs
his or her duty is to prosecute the case, not to
protect your interests. Having your own JAG
and/or civilian attorney, along with an
independent advocate, provides important legal
and moral support, and may help to hold the
defense attorney and prosecutor to the policy.

MCIOs do not decide whether or how to

prosecute the offender. Because of a recent
change in the policy, most of those decisions are
not to be made by your immediate commander,
but by the officer over the commander with
authority to convene general courts-martial.
These officers have wide discretion in deciding
whether or how to punish an offender. In some
cases, they may decide that the sexual assault
report is not credible or substantiated, and
do nothing. Even where complaints are deemed
credible, court-martial is only one option
available to the command. In some cases, minor
punishments such as an Article 15 or
administrative action (anything from an
administrative discharge to an administrative
record entry) may be ordered. Congress has
made it clear that it wants cases to go to court-
martial, and has placed some limits on command
discretion, but has not made court-martial a
requirement.

Throughout the investigation and legal

proceedings, you are entitled to monthly
updates from the SARC about the status of the
case. If you feel the case is being ignored or
handled improperly, you can complain to your
command, the general court-martial convening
authority, or higher authority. If you testify in a
court-martial proceeding, you are also entitled
to a copy of the record of trial.

Going to court

Reprisals and Retaliation

If the offender is court-martialed or processed

for misconduct discharge, you may be asked to
testify as a witness. A Victims Advocate, a civilian
attorney, or another support person of your
choice can accompany you to meetings and
interviews with prosecutors (called trial counsel)
and to any legal proceedings. Special victims
counsel JAG attorneys can also be present,
particularly at courts-martial, though the
services are still working out what role they can
play there. Civilian rape crisis centers often have
trained volunteers who can support and
advocate for you during investigations and
prosecutions. Legal proceedings may be difficult
and stressful, and having an advocate through
the process may help.

MLTF

Reprisals and retaliation are specifically

prohibited under the sexual assault regulations,
and under the Military Whistleblower Protection
Act (10 US Code 1034 and DoD Directive
7050.06). Nonetheless, these problems are
common. Reprisals can range from informal
harassment by the assaulters friends or the
command to poor performance evaluations,
involuntary psychiatric evaluations, loss of
promotions and even involuntary discharges.
A sexual assault report or investigation may
reveal that you violated some regulation or local
order prior to the assault (illegal drinking, for
example, or violation of barracks rules).

Military Sexual Violence

Information you provide when you make an

unrestricted report can be used against you.
Under the current policy, commanders have the
option to postpone disciplinary action against
you for such collateral misconduct until the
assault case is concluded. COs are encouraged
to consider this option, but are not required to
follow it. And this gives you only a
postponement of disciplinary action; the
regulations dont suggest that the command
drop legal action against you permanently.

personality disorders, and administratively

discharged without full military benefits. As a
result of Congressional action, victims of this
form of reprisal are entitled to review of
involuntary discharges by a flag or general
officer, if discharge proceedings are initiated
within a year of an unrestricted sexual assault
complaint and they request review on the
ground that the discharge is retaliatory.
The sexual assault regulations have specific
provisions for complaints against harassment
and reprisals. These complaints can be made
through the SARC, a SVC, the CO, commanders
higher in the chain of command, or the IG. The
sexual assault Directive also states that
[v]ictims of sexual assault shall be protected
from coercion, retaliation, and reprisal in
accordance with DoDD 7050.06 [the
whistleblower regulation]. Complaints to the IG
made under the Military Whistleblower
Protection Act trigger not only an investigation
of the reprisals, but also investigation of the
underlying sexual assault complaint, if it has not
been investigated or the investigation was
inadequate or biased. In addition to these
complaint procedures, you can complain about
reprisals using the methods discussed in the
Other Complaint Procedures section, below.

If the command is hostile to you, superiors may

exaggerate or invent collateral misconduct, or
accuse you of unrelated misconduct in order to
give you counseling or non-judicial punishment
under Article 15. This can be both a reprisal for
making a report and a way to undermine your
credibility (and therefore the credibility of the
report you made). In some cases, where
commands dont consider sexual assault reports
credible, survivors have been charged with
making false official statements. These problems
dont arise in every case, but it is best to be
prepared for the possibility that they will.
Reprisals can also include an unfavorable
personnel action (such as a poor performance
evaluation, inappropriate counseling entries or
involuntary separation) or denial of favorable
personnel action (such as a promotion or a
desirable assignment).

If you are a victim of reprisals or harassment,

documentation of the problem is important for
any complaint procedure. Civilian advocates
often recommend that victims of reprisals keep
a journal to record incidents of harassment,
including dates and names of harassers and
witnesses. Documentary evidence, such as email
traffic, should be saved if it shows the
harassment or a motive for harassment.
Witnesses to harassment or reprisals can be
asked to write statements describing what they
observed (it is sometimes helpful to have
assistance from a SVC or civilian attorney or
counselor in preparing witness statements).

Involuntary discharge can be a form of reprisal in

sexual assault cases. It may be a misconduct
discharge, based on allegations of collateral
misconduct or other alleged misconduct, or may
be a discharge for other designated physical or
mental conditions (also called condition not a
disability) for minor psychological problems. In
some cases, victims who develop Post-Traumatic
Stress Disorder or other serious psychological
conditions as the result of sexual assault are
under-diagnosed with adjustment disorders or

MLTF

Military Sexual Violence

Such documentation can be submitted with any

complaint of harassment.
One of the best ways to protect your safety and
your rights is to learn about the sexual assault
policy when you dont need it. You can jot down
SARC and other sexual assault prevention hotline
numbers and websites. You can find out who the
local SARC and SAVA are, and locate civilian legal
groups and the closest rape crisis center. If your
command is falling down on the job, and not
publicizing the policy and training personnel in
sexual assault prevention, or hasnt set up a real
SARC and SAVA system, you can request that
they do so, make a formal complaint about the
problem, or ask a civilian group to complain
about it. If the command permits inappropriate
language, sexually degrading comments or
pictures, or any sort of sexual harassment an
indication that sexual abuse may be tolerated
you can make formal or informal complaints.
This pro-active approach will help you if you
later need it, and will also help other potential
victims of assault.

MLTF

Military Sexual Violence

Sexual Harassment

just ignored; and servicemembers who make

complaints may risk official and unofficial
reprisals.

Sexual harassment continues to be one of the

most serious problems facing women in the
military. Despite an official policy of zero
tolerance, harassment is often ignored and
sometimes condoned in military culture. The
Department of Defense (DoD) considers sexual
harassment a form of sexual discrimination,
prohibited under its Equal Opportunity (EO)
policy, which is set out in DOD Directive 1350.2.
The Directive defines harassment as:

DoD 1350.2 says that the chain of command is

the primary and preferred channel for
identifying and correcting discriminatory
practices, including sexual harassment. If you
have been harassed, EO policy suggests that you
to begin by speaking with the harasser to resolve
the problem; fortunately, this is not required.
When that approach is inappropriate or
unsuccessful, the policy encourages requests for
help through the chain of command, starting at
the lowest level. (The Navy and Marine Corps
call this the informal resolution system, or IRS.)
This may work if the command is sympathetic,
but may not be worth the effort when the
harasser is in the chain of command. In most
cases, EO and other complaint procedures are
more likely to work, and many survivors of
sexual harassment prefer to start with them.

[a] form of sex discrimination that involves

unwelcome sexual advances, requests for
sexual favors, and other verbal or physical
conduct of a sexual nature when:
Submission to such conduct is made either
explicitly or implicitly a term or condition of
a persons job, pay, or career, or
Submission to or rejection of such conduct
by a person is used as a basis for career or
employment decisions affecting that person,
or

Sexual Harassment Complaint

Procedures

Such conduct has the purpose or effect of

unreasonably interfering with an individuals
work performance or creates an
intimidating, hostile, or offensive working
environment.

Your command should have an Equal

Opportunity officer whose job is to provide
training on sexual harassment issues and (in
most services) to assist servicemembers who
have harassment or discrimination complaints.
This person is likely to be enlisted, rather than
an officer, and EO is sometimes collateral duty,
rather than the EO officers primary MOS or rate.
Skill levels, support and interest can vary a great
deal from one EO to another. While you may
need to contact the EO officer in making or
following up on a complaint, he or she should be
approached with some caution. There is no
confidentiality with an EO, and his or her official
responsibility is to the command rather than
you. While EOs may be vigorous and supportive
advocates, you shouldnt assume the person is

Each branch of the service is required to follow

DoD policy, and each has regulations to
implement the Directive. In theory, local
command Equal Opportunity (EO) officers assist
in implementing the policy and conducting
educational programs about harassment.
Information about making complaints and local,
service-wide or DoD hotline numbers should be
posted at every command. Unfortunately, the
policies are not always followed; sexual
harassment complaints are sometimes shunted
aside, hidden under bureaucratic paperwork, or

MLTF

10

Military Sexual Violence

there for you.

evidence and statements from witnesses can

also be included. The complaint should explain
the result you want from the complaint this
could be anything from a public apology to a
transfer for you or (a less likely result) the
harasser. It is useful to write out a detailed
complaint in advance, attaching witness
statements and/or other evidence, instead of
sitting down with an EO officer to write out a
complaint on the spot. This reduces the chance
that the person receiving the complaint will put
his or her own spin on the case, or tell you what
you can and cannot say. Theres no need to limit
your comments to the spaces on the complaint
form. A civilian advocate or attorney can help
you prepare the complaint, or review it and
suggest additions if you have already submitted
it.

Even within the EO system, informal, verbal

complaints are favored. EO officers frequently
encourage complainants to use them rather than
formal complaints. Informal complaints are
handled without much paperwork, and often
without any formal resolution or action. While
they can be helpful if you wish to keep the
matter low-key, these complaints dont always
receive careful attention or investigation, and
require little or no official action by the
command.
Formal sexual harassment complaints are taken
more seriously. These are made in writing and
they require a written response, so that they
create a better record if an appeal or other
complaint is necessary. The Army uses DA Form
7279-R for complaints; the Navy uses NAVPERS
5354/2; the Marine Corps has no form; the Air
Force uses a Formal Complaint Summary, AF IMT
1587.

Complaint procedures vary from branch to

branch. It is important to read over the regs for
your branch of service for details on procedures
and time limits. Complaints should be made
within a specific time after the incident (usually
60 days) unless circumstances prevent that. In
the Air Force, complaints are made through the

The complaint should describe the sexual

harassment in detail, with names of the
harasser(s) and any witnesses. Documentary

Useful Regulations on Sexual Harassment:

Department of Defense: DoD Directive 1350.2 (PDF), Department of Defense Military Equal
Opportunity (MEO) Program
Army: AR 600-20, Army Command Policy, Chapter 7, Prevention of Sexual Harassment, and
Appendix D, EO/Sexual Harassment Complaint Processing System
Navy: SECNAVINST 5300.26D (PDF), Policy on Sexual Harassment and OPNAVINST 5354.1F, Policy on
Military Equal Opportunity Complaint Processing
Marine Corps: MCO 1000.9A (PDF), Sexual Harassment and MCO P5354.1D (PDF) Marine Corps
Equal Opportunity (EO) Manual
Air Force: AFI 36-2706a, Military Equal Opportunity Program
NOTE: Regs in this area are subject to update; check MLTFs web site for the latest links. If you are reading
on paper; visit website for digitized version with links: www.nlgmltf.org or www.militarylawhelp.com.

MLTF

11

Military Sexual Violence

local OE officer. In the Army, informal

complaints may be made to the Commanding
Officer (CO), the IG, chaplain, provost martial,
Staff Judge Advocate or others; formal
complaints should be presented to the CO in
most cases. The Marine Corps recognizes a
number of forms of complaint, like IG complaints
or Article 138 complaints (see the Other
Complaint Procedures section below) in addition
to EO complaints. You can also report
harassment and make the initial complaint
directly to the DoD Inspector General (IG)
hotline, at www.dodig.mil/hotline (or
hotline@dodig.mil), or to your services IG or
sexual harassment hotline.

the complaint is substantiated (except in the

Air Force, where the EO officer makes this
decision). The CO also decides what action to
take, if any; he or she is not required to follow
the investigators recommendations. You are
entitled to a redacted (sanitized) copy of the
investigators findings and recommendations,
but not necessarily the underlying investigative
report or witness interviews. The branches vary
on how much you will be told about the COs
decision and corrective action.
If you are not satisfied, you have the right to
appeal. In most branches, that means taking the
complaint to the CO exercising general court-
martial convening authority (GCMCA) over the
CO handling the complaint. The Air Force keeps
the appeal in the EO system, and the Army says
the highest appeal is to the GCMCA. But the DoD
Directive, which the branches must follow,
states that you may make a final appeal to the
office of the Secretary of your branch.

No matter where a complaint is made, it is

usually referred to your command for
investigation and resolution this means your
immediate CO, unless he or she is involved in the
harassment. The CO should assign an
independent officer to investigate the complaint,
unless the IG or other agency which received the
complaint has assigned its own investigator. In
the Air Force, the local EO officer conducts the
investigation. Each service sets time limits for
investigation and response, and you should
receive periodic updates if the investigation is
lengthy.

Sexual harassment complaint procedures have

limited value, particularly if the command is
biased. For this reason, you may want to use
other traditional military grievance procedures,
described in the Other Complaint Procedures
section below, instead of or in addition to the
EO complaint, to give you more control over the
case and its outcome.

In theory, the investigator should talk to every

witness you mention and consider each issue
you raise in the complaint. Investigators may
also question other witnesses, look into your
own truthfulness or conduct, and add their own
take to their report. Gathering witness
statements and other evidence in advance is one
way to avoid misunderstanding or tampering by
the investigator or command.

Retaliation
Servicemembers often decide not to report
harassment out of fear of retaliation. This is a
real concern members who file harassment
complaints, or even mention the idea, may face
adverse personnel action such as denial of
promotion, poor performance evaluations, or
reassignment (allegedly unrelated to the
complaint), or face disciplinary action for alleged
misconduct. Unofficial harassment bullying,

The investigator makes a written report, with

findings of fact about the incident and
recommendations for corrective action. This
normally goes to the CO, who decides whether

MLTF

12

Military Sexual Violence

threats, or even hazing can also be a problem.

Occasionally commands respond with unwanted
mental health evaluations. A hostile CO may use
psychological problems resulting from the
harassment (or invent emotional problems by
giving doctors misinformation) to discredit your
complaint, affect your career, or create grounds
for an involuntary discharge. Outside legal
assistance can help to prevent or limit this sort
of retaliation.

complaining to an EO officer or your command

about sexual harassment). The IG must
investigate not only the retaliation, but also
the original harassment, if that was not
already investigated or the investigation was
inadequate or biased. Here, too,
documentation and outside assistance are
extremely helpful. If the retaliation has
affected your career or record, the
whistleblower policy allows an expedited
petition to the Board for Correction of
Military/Naval Records. (Information on the
Correction Boards can be found in Chapter 16
of the American Veterans and Servicemembers
Survival Guide, available at www.nvlsp.org).

While reprisals arent a given, it is best to be

prepared for the possibility. Advocates often
suggest that complainants keep a journal; make
notes of the time, place and witnesses of any
harassment; keep copies of documents and e-
mail traffic showing the harassment or improper
command actions and attitude; and talk with an
advocate or attorney in advance about ways to
respond to reprisals.

Sexual harassment complaints, and complaints

about retaliation, are not simple. Commands
sometimes ignore complaints or solve them
with Band-Aid measures, and the risk of
retaliation is real. Complaints require good
documentation and determination. But with an
independent civilian attorney or advocate
and/or help from the organizations listed under
the Resources section, complaints can have real
impact.

Reprisals for making, or simply threatening to

make, a complaint about sexual harassment are
violations of the EO regs, Article 92 of the UCMJ
(failure to obey a lawful regulation), and special
Military Whistleblower Protection Act policies.
You can complain to the EO officer or through
the command about the reprisals. The types of
complaints mentioned in the Other Complaint
Procedures section, such as Article 138
complaints and congressional inquiries, can also
be used to protest reprisals and to request
withdrawal of any adverse personnel actions.

In addition, you can complain to the IG about

reprisals under the Military Whistleblower
Protection Act (10 US Code Section 1034); its
provisions are discussed in DoD Directive
7050.06. The Act and Directive, and
regulations in each branch of service, make it
illegal for anyone to retaliate because you
complained to a member of Congress, the IG,
or other officials who should receive reports
about violation of regulations (like

MLTF

13

Military Sexual Violence

Other Complaint Procedures

CO, asking him or her to correct the problem of

harassment or retaliation within his or her
command. It is useful to mention or reference
Article 138 in the letter. The letter should state
how you have been wronged and ask for specific
relief, giving details and attaching any evidence
you may have. The CO must respond within a
reasonable time, set by the regs. If you are not
completely satisfied, or if you receive no
response, you then file a formal 138 complaint
to the officer with special court-martial
jurisdiction over your CO. This complaint should
describe your COs failure to solve the problem
and the problem itself. (The Navy has a parallel
procedures when the problem is outside your
chain of command, Navy Regulation 1150.)

The military allows for other complaint

procedures, which can be used to make sexual
harassment complaints (usually along with
traditional EO complaints) and can be used to
challenge retaliation or reprisals for complaints
about sexual assault or harassment.
One such option, if the commanding officer is
not part of the problem, is a personal meeting
with the CO to discuss the harassment or
reprisal; the Navy and Marine Corps call this
request mast. If the command has no direct
open door policy, you may need to walk a
written request for a meeting up the chain of
command. You are not required to tell anyone
other than the CO what you want to discuss, and
you can simply ignore NCOs or lower officers
attempt to deny your request - the right to
meet with ones commanding officer is firmly
embedded in military law and tradition. You may
also request this meeting with counsel
present, and bring your attorney or legal
advocate to assist you in presenting a complaint.
If you wish, you can give the CO a written
complaint, witness statements and/or other
evidence. If the CO does not help, you can make
the same request to his or her CO, and so on up
the chain of command.

Article 138s get serious attention because they

must be reported to service headquarters and
can leave a permanent mark in an officers
record. This tends to concern COs and, as with a
formal EO complaint, makes a good paper trail of
your effort to solve the problem through proper
channels. 138 complaints sometimes end in a
compromise: the complaint may be denied and
the officers record may remain clean, or the 138
may be partially denied - but you are given part
or all of what you requested.
Detailed information about Article 138
complaints can be found at girightshotline.org
and nlgmltf.org. This is another area where it is
helpful to read the regulations AR 27-10,
Chapter 19, for the Army; JAG INSTRUCTION
5800.7F, the Manual of the Judge Advocate
General, for the Navy and Marine Corps; and AFI
51-904 for the Air Force. As with EO complaints,
use of an independent advocate or attorney is
very helpful.

Your attorney or advocate, not bound by the

chain of command, can write or speak directly to
your CO, your COs CO, or military headquarters,
demanding that the problem be resolved or that
the command be investigated for inaction. If
higher military authorities find the problem
potentially embarrassing, they may take formal
action or simply lean on your command to
resolve the problem and get your advocate out
of their hair.

You have an absolute right to ask a Member of

Congress to investigate and stop the harassment
or retaliation this right is protected by the
Military Whistleblower Protection Act. This can

One very useful option is a request for redress of

grievance under Article 138 of the UCMJ. In a
138 complaint, you begin with a letter to your

MLTF

14

Military Sexual Violence

be very effective if the Congressional office

involved is willing to skip or expand the normal
inquiry methods and ask your command or
military headquarters directly to take the
specific action you request. Routine
Congressional inquiries are made by
Congressional aides, not the Member of
Congress; they go only to the militarys
Congressional liaison officer and usually ask only
for an explanation, not specific action on the
problem. The liaison officer checks with the
command, gets your COs or legal officers
version of the story, and sends a boilerplate
reply to the Congressional office saying that your
rights have been respected and all is well. While
this is sometimes helpful, and the command will
know that an inquiry has been made, a direct
request for action from a Member of Congress
has much more impact. The Service Womens
Action Network (see the Resources listing at the
end of this document) can provide contact info
for members of Congress who are particularly
concerned about sexual harassment and sexual
assault in the military.

retaliation, and should be approached with care.

Legal assistance is extremely important here.
Your right to speak publicly about your case or
about problems with your command is set out in
DoD Instruction 1325.06, but this Instruction
places limits on where, when and how you do
so. There are also some limits on what you can
say you cannot reveal classified material,
make derogatory remarks about the
Commander in Chief, or make threats, for
example. An attorney or advocate can help you
avoid these problems and, if you want, be
present when you speak with the media.
Sexual harassment, sexual assault and retaliation
cases can be taken to federal court, where you
may ask for corrective action such as a transfer
or a removal of retaliatory actions, but not for
money damages for pain and suffering. Courts
seldom step in unless a servicemember has tried
all available administrative remedies, such as an
EO complaint, and judges may defer to military
discretion about personnel matters. But a court
can order the military to enforce its own
regulations or order it to do more than the
regulations require.

In some cases, you may choose to speak to the

media, directly or through your advocate, using
your name or speaking anonymously. Going
public places greater pressure on the command
to resolve the problem, but it may also result in

MLTF

15

Military Sexual Violence

Resources on Military Sexual Assault/Harassment

These groups encourage survivors of sexual assault or harassment to obtain assistance from a civilian
attorney or military counselor; referrals are available through each group. It is extremely helpful to have
independent legal help from the very beginning of the case in documenting the assault or harassment,
deciding which complaint procedure(s) to use, preparing a complaint, monitoring the investigation and
taking further action if necessary.

Military Law Task Force - nlgmltf.org, militarylawhelp.com

The Task Force is a standing committee of the National Lawyers Guild that works to
counter military policies that are interventionist, discriminatory and unjust. MLTF
provides information and resources on military sexual assault, sexual harassment and
related issues. MLTF can put you in touch with independent attorneys or advocates
familiar with military law.
Updates and further resources on this topic can be found by visiting our web site at
MilitaryLawHelp.com.
Mail: 730 N. First Street, San Jose, CA 95112
Phone: 619-463-2369
Email: email@nlgmltf.org

Service Womens Action Network - servicewomen.org

SWAN also provides information and support for victims of sexual assault and
harassment.
Mail: 220 E. 23rd Street, Suite 509, New York, NY 10010
Phone: 646-569-5200
Email: info@servicewomen.org

GI Rights Network - girightshotline.org

With local volunteer groups around the country, the GI Rights Network operates a toll-
free hotline to provide information about complaints, discharges, and servicemembers
rights.
Hotline: 877-447-4487
Email: girights@girightshotline.org

MLTF

16

Military Sexual Violence

The Military Law Task Force of the National Lawyers Guild

The National Lawyers Guilds Military Law Task Force includes attorneys, legal workers, law students
and barracks lawyers interested in draft, military and veterans issues. The Task Force publishes On
Watch as well as a range of legal memoranda and other educational material; maintains a listserv for
discussion among its members and a website for members, others in the legal community and the
public; sponsors seminars and workshops on military law; and provides support for members on
individual cases and projects.

The MLTF defends the rights of servicemembers in the United States and overseas. It supports dissent,
anti-war efforts and resistance within the military, offering legal and political assistance to those who
challenge oppressive military policies. Like its parent organization, the NLG, it is committed to the
precept that human rights are more sacred than property rights.

To join, or for more information, contact us by email or phone (619) 463-2369, or visit our website or
social media pages.

www.nlgmltf.org
www.militarylawhelp.com
facebook.com/nlgmltf
twitter.com/military_law

Kathleen Gilberd
Kathleen Gilberd is a legal worker living in San Diego, California. She serves as the Executive Director of
the Military Law Task Force and on the board of the GI Rights Network. She also is a member of the
advisory board of the Chelsea Manning Support Network and the Fort Hood Support Network. She is a
long-time volunteer with the San Diego Military Counseling Project. She has conducted dozens of
workshops on GI Rights issues, including Sexual Assault and Sexual Harassment. In 2013, she was
honored as the Service Provider of the Year by the Service Womens Action Network. Her website can
be found at kathleengilberd.com.

MLTF

17

Military Sexual Violence

 MLTF

The Military Law Task Force

730 North First Street

San Jose, CA 95112

Phone: 619- 463-2369
E-mail: email@nlgmltf.org

18
PLEASE
PLACE
STAMP
HERE

Military Sexual Violence

Distributed free of charge. Donations appreciated.

MilitaryLawHelp.com

NLGMLTF.ORG

of the National Lawyers Guild

The Military Law Task Force

Produced by

A Guide to Sexual Assault and

Sexual Harassment Policies
in the Armed Forces
for Servicemembers, MSV Victims
and Their Advocates

Military Sexual
Violence

Stopping the School-to-Prison Pipeline: Using Restorative Justice to Stop the Criminalization of
Black and Latino Youth in Chicago Public Schools
The School-to-Prison Pipeline describes the reality that many young people are being pushed
out of school and into the juvenile and adult legal systems because of harsh discipline policies,
high stakes testing, police involvement in schools and social oppression. The trend of harsh school
discipline practices such as suspension, expulsions, and zero tolerance policies in public schools
do more to increase student involvement in the criminal legal system than to correct or curb
behavior.
Research suggests that when students are suspended or expelled, the likelihood that they will
repeat a grade, not graduate, and/or become involved in the juvenile justice system increases
significantly. In Chicago, Black students and children with special education needs are suspended
and expelled at particularly high rates. Annually, there is an average of over 5,000 arrests of
persons 17 and under at Chicago public school locations.
Across the nation, racial disparities start at a shockingly early age. According to a new U.S.
Education Department study, Black 4- and 5-year-old students account for almost half of the
preschoolers suspended more than once from school, even though they make up just 18 percent of
preschool students. Overall, federal data shows that Black students of all ages are 3.5 times more
likely to be suspended or expelled than White students.
Principles of restorative and/or transformative justice can be used to stop the criminalization of
Black and Latino youth and to deter violence. This workshop will explore how these principles are
currently being implemented through programs inside of Chicago Public Schools, community
education workshops, and recent legislation. Speakers will share successful models, best practices,
challenges, and ways for attendees to get involved.
Presenters:
Mariame Kaba is founding director of Project NIA, an education and advocacy organization using
the principles of restorative/transformative justice to reduce youth violence and seeks to bolster the
movement to transform juvenile justice and dismantle the prison industrial complex.
Illinois State Senator Kwame Raoul championed legislation on criminal justice reform including
the historic legislation that abolishes the death penalty, legislation creating the Torture Inquiry
Commission and legislation promoting diversion programs for non-violent offenders.
Maricela Corona is a Chicago Public School social worker at Cesar Chavez Multicultural
Education Center in the Back of the Yards neighborhood on the South Side of Chicago
(Ret.) Judge Sheila Murphy is a Judge, educator, activist and co-director of the Restorative Justice
Project at the John Marshall Law School.

Mariame Kaba is an organizer, educator, and writer who lives in Chicago. Her work focuses on
ending violence, dismantling the prison industrial complex, and supporting youth leadership
development. Mariame is a published author, a teacher, and has served on numerous nonprofit
boards. She runs the popular blog: Prison Culture where she writes about issues of juvenile
justice, prisons, and transformative justice.
Mariame is currently the founding director of Project NIA (www.project-nia.org), a grassroots
organization with the long-term goal of ending youth incarceration in Illinois. Prior to launching
Project NIA, she spent five years as a Program Officer for education and youth development at the
Steans Family Foundation and also as the coordinator of evaluation for the foundation.
Mariame has a long history of anti-violence organizing and education. She has co-founded several
organizations including the Chicago Taskforce on Violence against Girls and Young Women
(www.chitaskforce.org), the Rogers Park Young Womens Action Team (www.rogersparkywat.org)
and the Chicago Freedom School (www.chicagofreedomschool.org).
Illinois State Senator Kwame Raoul was born in Chicago to Haitian-born immigrants and has
served the people of the 13th Legislative District since 2004. Raoul, a lifelong resident of the Hyde
Park/Kenwood area, was appointed to fill the vacancy left by former State Senator Barack Obamas
election to the U.S. Senate. Since his arrival in Springfield, Sen. Raoul has championed criminal
justice reform. His successes include leading the charge to abolish the death penalty, creating the
Torture Inquiry and Relief Commission and improving and reinstating an early release program to
relieve prison overcrowding while rehabilitating and reintegrating offenders. This year he has led
Senate negotiations on concealed carry and successfully demanded inclusion of common sense
restrictions and safeguards in the new law. At the same time, he was able to pass major legislation
targeting gun trafficking by closing background check loopholes for firearms purchases.
Sen. Raoul has supported efforts to create and retain jobs in Illinois and has sponsored legislation
extending the Economic Development for a Growing Economy (EDGE) tax credit for companies
that locate in economically depressed areas. In 2011, Sen. Raoul was tapped to chair the Senates
Redistricting Committee. He introduced the Illinois Voting Rights Act to protect racial and
language minorities and increase transparency and public participation in the redistricting process.
Sen. Raouls life experiences have shaped his legislative philosophy and made him a leading
progressive voice in the Illinois Senate. His father, a physician to the Woodlawn, North Kenwood,
Grand Boulevard and Englewood communities for over thirty years, kindled in him a personal
commitment to the people of the South Side.
Raoul is a graduate of DePaul University (B.A., Political Science) and the Chicago-Kent College of
Law. He worked as a prosecutor for the Cook County States Attorneys Office and in-house
counsel for the City Colleges of Chicago. He is now a partner with the national law firm Quarles &
Brady. Sen. Raoul lives in the Hyde Park community of Chicago, where he proudly raises his two
children, Che and Mizan.
Maricela Corona is a social worker who works at Cesar Chavez Multicultural Education Center, a
Chicago Public School in the Back-of-the-Yards neighborhood on the South Side of Chicago. Ms.
Corona collaborates with the Restorative Justice Project at John Marshall Law School to implement

restorative justice principles in her work with at-risk students on the south side of Chicago. She
also works to coordinate a mentoring program that pairs Chicago Public School students with
attorneys.
Before becoming a lawyer, (Ret.) Judge Sheila Murphy taught in the public schools for seven
years. Later, during her tenure as judge, a school was opened in the basement of the courthouse
for children who needed a second chance after being expelled. She also worked to establish courts
dedicated specifically to domestic violence and drug treatment. Judge Murphy currently co-directs
the Restorative Justice Project at John Marshall Law School and teaches a class on restorative
justice that places students in local schools to implement restorative justice practices.

BACKGROUND READINGS ON RESTORATIVE JUSTICE

Allen, People Wasnt Made to Burn (2011)
Alexander, The New Jim Crow Mass Incarceration in the Age of Colorblindness (2010)
Cahill, A Saint on Death Row (2009)
Cunneen & Hoyle, Debating Restorative Justice (2010)
Early, Crazy (2006)
Lewis, Gideons Trumpet (1964)
McCourt, Angelas Ashes (1999)
Minow, Between Vengeance and Forgiveness (1998)
Pager, Marked Race, Crime, and Finding Work in an Era of Mass Incarceration (2010)
Pranis, The Little Book of Circle Processes (2005)
Satter, Family Properties (2009)
Seng & Caruso, Segregation in the Chicago Metropolitan Area Some Immediate Measures to Reverse
this Impediment to Fair Housing (2013) http://www.jmls.edu/fairhousing/pdf/2013-chicago-segregationstudy.pdf
Seng, Einhorn & Brown, Counseling a Victim of Racial Discrimination in a Fair Housing Case, 26
John Marshall L. Rev. 687 (2003) http://www.jmls.edu/fairhousing/pdf/commentary/counseling-avictim.pdf
Thomas-Cannino & Cotton, Picking Cotton (2010)
Turow, Ultimate Punishment: A Lawyers Reflections on Dealing with the Death Penalty (2003)
Tutu, No Future without Forgiveness (1999)
Van Wurmer & Walker, Restorative Justice Today (2013)
Wilkerson, The Warmth of Other Suns (2010)
Wolf, Lincolns Melancholy (2005)

The Conscious Chicagoans

Guide to
Youth Detention
and Incarceration
2014 Update
A.D. Sean Lewis and Mariame Kaba,
Chicago Youth Justice Data Project
April 2014

Introduction
In summer 2013, Project NIA released a report written by Michelle VanNatta and Mariame Kaba
titled Were In It For The Long Haul: Alternatives to Incarceration for Youth in Conflict with the
Law. The paper offered a short review of the literature about youth detention and incarceration. Its
republished below:
There is an urgent need to find constructive ways to respond to young people in conflict with the
law. Research compellingly demonstrates that youth placed in juvenile detention centers compared
to alternative interventions are much more likely to later spend significant time in prison (Aizer and
Doyle, 2013). Juvenile and adult incarceration both create exorbitant financial and social costs
(Petteruti, Velzquez, and Walsh, 2009). Incarceration of juveniles is harmful to young peoples
development, education, families, communities, and their current and future socioeconomic status
(Majd, 2011; Bickel, 2010). Furthermore, incarcerating youth is not effective at enhancing public
safety (Butts & Evans, 2011; Petteruti, Velzquez, & Walsh, 2009). Conditions of detention, even
when monitored and regulated, often involve serious violations of human rights, such as solitary
confinement and sexual violence perpetrated by staff (Beck, Cantor, Hartge, & Smith, 2013; Kysel, 2012; Krisberg, 2009). These abuses harm youths physical health, mental health, and social
well-being (McCarty, Stoep, Kuo, & McCauley, 2006; Mendel, 2011). Destructive conditions that
create lasting damage are even more extreme for youth confined to adult jails and prisons (Arya,
2007; Sarri and Shook, forthcoming; Wood, 2012). The detention process disconnects youth from
family and supportive relationships, interrupts education, and makes it difficult for youth to get
adequate exercise, healthcare, nutrition, and support.
Incarceration is extravagantly expensive. In 2012, Illinois taxpayers paid an average of $86,861
per year for each youth incarcerated in state prison (Illinois Department of Human Services, 2012).
Taxpayers paid an astounding $219,000 per year for each youth confined to the Cook County Juvenile Temporary Detention Center (Civic Federation, 2013). These numbers do not include associated costs, such as government monies used to pay police, investigators, prosecutors, public defenders, judges, court personnel, and others for the arrest, investigation, and adjudication of youths
criminal cases. Illinois (and the rest of the United States) has made a staggering investment in the
criminalization of youth.
Incarceration is traumatic for youth, as evidenced by young peoples suicides, suicide attempts,
self-harm, and the worsening of mental health symptoms while inside (Hayes, 2009; Ford, Chapman, Hawke, & Albert 2007). The stigma of incarceration follows youth for a lifetime, interfering
with education housing, jobs, economic wellbeing, and stable community relationships (Houchins
et al, 2009). Disproportionate arrest, prosecution, conviction, and sentencing of youth of color perpetuate and intensify racist injustice throughout the United States (Jones, 2012; US Department
of Justice, 2012; Cahn, Nash, and Robbins, 2011). Incarceration can be particularly horrific for
gender non-conforming youth, who may be assigned to facilities on the basis physical examinations
or identification documents rather than based on the youths own gender identity and presentation.
Thus, someone who lives in the world as a young woman may be incarcerated at a mens prison.
This exposes the youth to significant danger and trauma (Estrada & Marksamer, 2006). Finally,
there is no conclusive evidence that incarceration in juvenile detention centers safeguards our
communities, improves pro-social behavior among those currently or formerly incarcerated, or rehabilitates youth who have engaged in harmful behavior (National Juvenile Justice Network, 2011).
2014 Update- A Conscious Chicagoans Guide to Youth Detention and Incarceration - 2

Because incarceration is expensive, traumatic, disruptive, and ineffective (Mendel, 2011), exploring alternative strategies for working with youth in conflict with the law offers rich opportunities to
promote community well-being while saving money. Carefully implemented, alternatives to detention/incarceration can reduce harm in communities, promote youth development, contain costs,
enhance safety, protect human rights, and build a stronger society.

Project NIA believes that an educated and informed citizenry is a key to successfully mobilizing for
social change and transformation. Yet in Chicago, even motivated individuals can find it difficult to
access timely and relevant juvenile justice data. In response, in 2010, Project NIA launched the
Chicago Youth Data Justice Project (www.chicagoyouthjustice.com) to make it easier for interested
community members to access data about the local juvenile justice system.
This paper updates our 2012 report, The Conscious Chicagoans Guide to Youth Detention and
Incarceration.1

1 Mariame Kaba, The Conscious Chicagoans Guide to Youth Detention and Incarceration August 2012.

http://chiyouthjustice.files.wordpress.com/2012/08/conscious-chicagoans-guide-to-youth-incarceration.pdf

Chicago Youth Justice Data Project - 3

As we did in 2012, we still believe that we can close several youth prisons in the state of Illinois
as well as the Cook County Juvenile Temporary Detention Center without any significant impact on
public safety. This would free up necessary resources to invest in education and other services to
address the needs of youth in conflict with the law. As noted earlier, research suggests that these
young people would be better served in their communities rather than locked up in juvenile jails
and prisons.

Youth Detention (Jail)

In 2007, the Cook County Juvenile Temporary Detention Center (JTDC) was taken over by a U.S.
Federal Judge and assigned a temporary administrator. This dramatic action came after several
lawsuits beginning with one filed in 1999 by the American Civil Liberties Union (ACLU). JTDC had
been plagued by years of mismanagement, allegations of abuse, overcrowding, unsanitary conditions, and inadequate services for youth who were detained at the facility. Though the conditions at
JTDC have improved, advocates are calling for the jail to be closed. A report by the National Council
on Crime and Delinquency, which was commissioned by the Jane Addams Juvenile Court Foundation, suggested that Cook County close JTDC; the report also called for an investigation into the
disproportionate number of minorities who are jailed in the detention center. Their findings suggest
that black youth are detained at 46 times the rate of their white peers.
2011-2013 Data for the JTDC
The Cook County Juvenile Temporary Detention Center (JTDC) serves mostly as a pre-trial detention
facility. This facility holds juveniles in custody while their case is pending, but before an adjudication of delinquency. This means that no young person in Cook Countys juvenile jail (JTDC) has been
convicted of the crime they are incarcerated for. These young people are removed from their communities without being convicted of any crime. Project NIA believes that no one should be incarcerated, and also finds pretrial incarceration of juveniles particularly egregious.
2014 Update- A Conscious Chicagoans Guide to Youth Detention and Incarceration - 4

Demographics - Admissions
In 2013, 4,267 youth were admitted to the JTDC. In 2011, over 5,183 youth were jailed at JTDC.
From 2011 to 2013, youth entries decreased 17.7%. Decreases did not vary significantly among
racial and ethnic groups, with the exception of the Mexican sub-group, which saw significant decreases in entries; Mexican youth saw a 90.3% decrease in JTDC entries.

Length of Stay
While 15% of youths are released within 24 hours, many more endure longer stays. 1 in 10 youths
who enter the JTDC stay longer than a month, and 1 in 4 stay for two to four weeks. 2 in 5 juveniles are separated from their families and communities for longer than two weeks. 3 in 20 juveniles are separated from their families and communities for longer than a month.

Chicago Youth Justice Data Project - 5

Detainee Charge Information - Admissions

The table above is based on data obtained from the JTDC about defense detainee charge information. From 2011 to 2013, the raw number and the percentage of youths incarcerated for drug-related offenses increased while overall incarceration rates and numbers decreased.
Geography
The table below contains individual zip code numbers of young people sent to JTDC.
Unsurprisingly, most of the youth in detention
were from the West and South sides of Chicago. These areas also accounted for a significant number (over 50%) of 2011 school closings.2 To further show the geography of the
school to prison pipeline in Chicago, we create
maps to help readers visualize this data.

2 In 2011, Chicago Public Schools closed 49 schools, whose students and teachers were merged with other schools in the same
general area. This means that there were fewer community schools serving the same population size. Possible effects include larger
class size, fewer enrichment opportunities per student.

2014 Update- A Conscious Chicagoans Guide to Youth Detention and Incarceration - 6

Cook County Juvenile Temporary Detention Center Admissions by Zip Code, CY2013

Chicago Youth Justice Data Project - 7

School to Jail Pipeline

Following are maps that show the geographical

impact of juvenile detention centers from 20112013.
Note: Red indicates that over 200 youth who
live in that zip code were detained; yellow indicates that 150 199 youth who live in that zip
code were detained.

2014 Update- A Conscious Chicagoans Guide to Youth Detention and Incarceration - 8

Chicago Youth Justice Data Project - 9

Youth Prisons in Illinois

Prior to 2006, juveniles3 who were convicted of crimes and sentenced to prison were housed under
the auspices of the Illinois Department of Corrections (IDOC). In 2006, the Illinois Department of
Juvenile Justice (DJJ) was created as a standalone agency to focus on rehabilitation for juveniles
rather than punishment. Unfortunately, this goal has yet to be realized because the Department
has been chronically under-resourced since its inception.
In 2011, there were eight youth prisons in Illinois. Only one housed girls and young women
(IYC-Warrenville). By September 1 2012, there were seven youth prisons operating in the state.
IYC-Murphysboro is one of two facilities that were recommended for closure by Governor Pat Quinn.
As of July 2012, all of the young people who were incarcerated at IYC-Murphysboro were relocated
to other prisons across the state.4 IYC-Joliet closed on October 31, 2012.
Currently, there are six youth prisons in Illinois.5 In Fall 2013, some experts who were brought in
as a result of a class action lawsuit by the ACLU determined that Illinois youth prison system is
violating the constitutional rights of inmates by failing to provide adequate mental health care and
education and by unnecessarily keeping youths in solitary confinement.6 Their report found that
living conditions in the prisons confinement units were often harsh and of substandard quality,
with rooms that smelled of trash and feces.7 Further, youths were required to wear orange jumpsuits with no undergarments, according to Barry Krisberg, a senior fellow at the University of California at Berkeley law school. One Chicago youth reported that he also lacked eating utensils while
on the segregation unit, forcing him to use pieces of Styrofoam to eat some meals.8
These violations were not isolated to one particular DJJ facility; violations occurred in every prison.
These revelations came on the heels of a report citing DJJ facilities as having high levels of sexual
assaults of youth by prison staff.
The Facts about Incarceration
Between 2001 and 2011, Illinois reduced its youth incarceration rate by 41% matching the national number. The number of youth confined between 2010 and 2011 dropped by 5%. 2106 youth
were confined in Illinois in 2011. Illinois confined 169 youth for every 100,000 youth in the states
general population, or 13.3% lower than the U.S. average rate of confinement.9 In Illinois, between
state fiscal years 2000 and 2010, total admissions to the Illinois Department of Juvenile Justice
(IDJJ) dropped 19 percent, to 2,162. In addition, the number of youth admitted to IDJJ for a new
sentence (as opposed to a technical violation of parole) fell 34 percent.10
3 As of 2010, a juvenile in Illinois is defined as youth under 18 who have committed misdemeanors and those 17 and under with
felony convictions.
4 Kurt Erickson. Last residents moved out of IYC-Murphysboro. The Southern Illinoisan (July 12, 2012). http://thesouthern.com/
news/local/last-residents-moved-out-of-iyc-murphysboro/article_bb64e474-cbc8-11e1-b67d-001a4bcf887a.html
5 IDJJ Facilities Illinois Department of Juvenile Justice, accessed 6 March 2014. https://www.illinois.gov/idjj/Pages/Facilities.aspx
6 Steve Schmadeke, States youth prison system violates inmates rights, experts say 25 September 2013, The Chicago Tribune.
http://articles.chicagotribune.com/2013-09-25/news/ct-met-illinois-youth-prison-20130926_1_youth-prison-system-inmates-barry-krisberg
7 Schmadeke, 2013.
8 Schmadeke, 2013.
9 The Comeback and Coming-from-Behind States: An Update on Youth Incarceration in the United States, 2013, p. 195
10 Bostwick et. al., 2012.

2014 Update- A Conscious Chicagoans Guide to Youth Detention and Incarceration - 10

FY201211 Youth Prisons Data

A total of 2198 juveniles were admitted to the DJJ in FY2012. The majority of these youth were
black (63%) followed by white (25%) and Latino (11%) youth. Many more young men (93%) were
behind bars than young women (7%).
It is important to note that 892 (or about 43%) of the youth admitted to DJJ in FY2012 were from
Cook County. Cook sends far and away more youth to Illinois juvenile prisons than any other county in the state. Cook is followed by Winnebago (126 or about 6%) and Peoria (114 or about 6%)
as the top committing counties in Illinois. Finally, about 49 percent of youth who were admitted to
DJJ in fiscal year 2012 were technical parole violators.
Below are a couple of charts that provide important information about the number and characteristics of Illinois youth admitted12 to the Department of Juvenile Justice in Fiscal Year 2012.

11 The fiscal year in Illinois is July 1 to June 30.

12 Keep in mind the difference between the number of youth who are locked in Illinois juvenile prisons on any given day like Aug 30th
2013 for example (904) vs. the total number of youth who were admitted to prison over the course of a fiscal year (1,989).

Chicago Youth Justice Data Project - 11

On August 31 2013, there were 904 youth incarcerated in 6 youth prisons statewide. 95% of these
incarcerated youth were male and 5% were female. Their average age was 17 years old. 66% of DJJ
youth were black, 24% were white, and 11% were Hispanic. Youth from Cook County were most
represented comprising 46% of all commitments to DJJ followed by Central at 25% (DJJ monthly
statistics).
In FY13, there were 1,835 total admissions to DJJ with an average length of stay of nine months.
The average length of stay was nine months and 48.5% of youth received mental health services.
On March 31, 2014, there were 778 youth incarcerated in 6 youth prisons statewide. This is a historic low. 95% of these incarcerated youth were male and 5% were female. 63% of DJJ youth were
black, 26% were white, and 11% were Hispanic. 43% of the youth were receiving special education services.
In 2012, 50% of admissions to DJJ were for nonviolent (property/drug) offenses. Parole violators
composed 49% of admissions (more than half of these are technical violations). On a given day,
about 30% of the population is past the presumptive release date, 5% are under low supervision,
and 4% are misdemeanants. Parole violations may range from absenteeism to violating curfew to
failure to appear in court. Violating parole triggers warrants, which are bureaucratic issues. Incarcerating young people for technical violations of their parole is not about crime or safety. Physically
removing young people from their communities, with or without being convicted of a crime (and
much less because of an administrative violation), is about putting people in cages and profiting
from that.
IDJJ releases more than 2,400 youth back into the community each year (Bostwick et. al, 2012).
As of 8/31/13, 1,319 youth in Illinois were on parole (DJJ monthly statistics) and on 3/31/14,
1,416 were on parole.
In a study by the Illinois Criminal Justice Information Association published in 2012, eighty-six
percent of youth in the study were re-arrested within three years of release. Youth released after
serving sentences for sex offenses were the least likely to be re-arrested. Illinois re-arrest rates were
similar to those reported in California and Florida, but were higher than in New York and Texas. Seventy percent of youth were re-incarcerated during the study period. Forty-one percent of youth were
incarcerated at least once for a new offense and 53 percent of youth were re-incarcerated at least
once for a technical violation of parole.
Anna Aizer and Joseph Doyle, Jr. examined roughly 35,000 former Chicago public school students
who had now grown up. In a working paper published in 2013 titled Juvenile Incarceration, Human Capital and Future Crime: Evidence from Randomly-Assigned Judges, they found that going
to jail as a kid has strong negative effects on a childs chance to get an education: youth that
went to prison were 39 percentage points less likely to finish high school than other kids who from
the same neighborhood. Even young offenders who werent imprisoned were better off; they were
thirteen points more likely to finish high school than their incarcerated peers.
Going to jail also made kids more likely to offend again. Young offenders who were incarcerated
were a 67 percent more likely to be in jail (again) by the age of 25 than similar young offenders
who didnt go to prison. Moreover, a similar pattern held true for serious crimes. Aizer and Doyle
found that incarcerated youth were more likely to commit homicide, violent crime, property crime
and drug crimes than those that didnt serve time.
2014 Update- A Conscious Chicagoans Guide to Youth Detention and Incarceration - 12

Costs of Incarceration
It is very expensive to imprison youth in Illinois. As the John Howard Association points out:
Illinois taxpayers spend almost $130 million a year on IDJJ, which amounts to upwards of
$177,000 per year to incarcerate a single youth at the agencys most expensive facility. Compare
this to Redeploy Illinois, a state-funded diversion program that enables counties to hold young
offenders accountable in their communities. Research has shown that Redeploy is about four-times
more effective at reducing recidivism than sending kids to IDJJ facilities and only costs between
$2,000 to $10,000 per intervention.
In 2011, it cost about $90,000 to incarcerate a young person in DJJ for a year. In contrast, it
costs $11,842 to educate a student in Illinois public schools and $13,432 in Chicago public
schools. This means that for every young person the State of Illinois incarcerates for a year, it could
educate that same youth for 7 years. To put it differently, it is seven times more costly to imprison
a young person than it is to educate them.
In 2011, it cost about $90,000 to incarcerate a young person in DJJ for a year. In contrast, it
costs $11,842 to educate a student in Illinois public schools and $13,432 in Chicago public
schools. This means that for every young person the State of Illinois incarcerates for a year, it could
educate that same youth for 7 years. To put it differently, it is seven times more costly to imprison
a young person than it is to educate them.
For more information and data about the local juvenile justice system, we invite you to visit our
Chicago Youth Justice Data Project site (www.chicagoyouthjustice.com) and also our blog (http://
chiyouthjustice.wordpress.com/).

Chicago Youth Justice Data Project - 13

Reproduced by Mariame Kaba, Project NIA, for the Chicago Youth Justice Data Project (www.chicagoyouthjustice.com).

CPS Suspensions & Expulsions Data Summary (Note: Suspensions include only district-managed schools and charters following CPS Student
Code of Conduct)
SCHOOL YEAR
SY11-12
SY11-12
SY12-13
SY12-13
SY13-14
Sem 1
EOY
Sem 1
EOY
Sem 1
SUSPENSIONS
Number of Out of School Suspensions issued to
18,016
38,053
16,188
36,017
14,701
9th-12th grade students
Number of Out of School Suspensions issued to
11,743
29,459
14,220
33,828
10,546
Pre-K-8th grade students
Percent of reported misconducts resulting in Out
50%
51%
48%
52%
43%
of School Suspensions
Percent of Out of School Suspensions issued to
74%
74%
77%
75%
75%
African American students (41% of students)
EXPULSIONS
Number of Students Expelled: District-Managed
N/A
272
N/A
182
52
Schools (353,261 enrollment in SY12-13)
Number of Students Expelled: Charter Schools
N/A
275
N/A
307
151
(50,200 enrollment in SY12-13)

Source: Office of College and Career Success, Chicago Public Schools, CPS Suspensions and Expulsions Reduction Plan and Data Highlights
(February 26, 2014)

Prepared by Mariame Kaba (May 2014), Project NIA, for Chicago Youth Justice Data Project
(www.chicagoyouthjustice.com)
CHICAGO PUBLIC SCHOOLS (CPS) SUSPENSIONS & EXPULSIONS DATA SUMMARY (SY12-13)
According to data released by the Chicago Public Schools1, last school year (2012-2013), approximately
75% of all out of school suspensions were delivered to African-Americans, a group that makes up about
41 percent of CPS student body.
SCHOOL YEAR
Percent of Out of School Suspensions issued to
African American Students (41% of all students)

SY12-13
Sem 1
77%

SY12-13
EOY
75%

SY13-14
Sem 1
75%

CPS issued an average of 386 out-of-school suspensions per day, with students losing over 173,000
instructional days due to out-of-school suspensions (VOYCE fact sheet).
CPS data shows that about 13% more elementary school students were suspended last school year
(2012-2013) compared with the 2011-2012 school year.2 There was a reduction in use of out-of-school
suspensions (OSS) from SY11-12 to SY12-13.
CPS Suspension Rates, SY12-13 (includes only charters that follow CPS Student Code of Conduct)
Elementary
High School
OSS per 100 students
12.63
32.97
% Change in OSS per 100
+12.95%
-10.26%
students, from SY12 to SY13
% of misconducts resulting in
62%
44%
OSS
% of misconducts resulting in ISS
13%
38%
% misconducts documented as
5%
12%
using Restorative Practice
Average OSS Days
2.22
2.72
% Change in OSS Days, from
-6.56%
-16.54%
SY12 to SY13

CPS Length of Suspensions (SY12-13, includes only charters that follow CPS Student Code of Conduct)
1 day
2-3 days
4-5 days
5 days +
Pre-K &
51%
43%
5.6%
Kindergarten
1st-5th grades
45%
46%
8%
th th
6 -8 grades
39%
44%
14%
3%
9th-12th grades
33%
45%
18%
5%

This only includes charter schools that follow CPSs Student Code of Conduct (Source:
http://www.cps.edu/SchoolData/Pages/SchoolData.aspx)
2
Source: Suspensions and Attendance Data, Draft & Internal Confidential Document Chicago Public Schools,
12/13. Published by Catalyst Magazine, January 2014.

Prepared by Mariame Kaba (May 2014), Project NIA, for Chicago Youth Justice Data Project
(www.chicagoyouthjustice.com)
CPS Repeat Suspensions (SY12-13, includes only charters that follow CPS Student Code of Conduct)
Suspended
Suspended
Suspended 3- Suspended 5 +
10-20 times
Once
Twice
4 times
times
Pre-K &
72.4%
18.6%
4.9%
4%
Kindergarten
1st-5th grades
64%
18%
12%
5%
+37 students
th th
6 -8 grades
60%
20%
14%
7%
+70 students
9th-12th grades
54%
20%
17%
7%
+133 students

CPS OSS Demographics (SY12-13, excludes charter schools)

Male
Female
Pre-K & Kindergarten
86
14
st th
1 -5 grades
74
26
6th-8th grades
81
19
th
th
9 - 12 grades
62
38

African-American
77%
85%
77%
71%

Suspension Data (including Charters)

According to a WBEZ analysis of state and district data3, more than 50,000 Chicago Public Schools
students got out-of-school suspensions last year. Thats about 13 percent of the district's population.
Other key findings include:

On average, charter high schools and district high schools suspended 18 percent of the students
enrolled.

Charter grammar schools, overall, suspended 14 percent of all students enrolled. Thats double
the percentage of students suspended from district-run grammar schools, which on the whole
suspended 7 percent of the students enrolled.

Collectively, schools run by the Academy for Urban School Leadership suspended about 22
percent of their students. AUSLs five high schools, on average, suspended 42 percent of their
students.

The districts therapeutic day schools, which serve students with the most severe behavior
problems, gave out-of-school suspensions to large percentages of their students last year, with
Montefiore suspending 100 percent of the students enrolled.

This includes charter schools. (Source: http://www.wbez.org/news/student-suspensions-numbers-110172)

Prepared by Mariame Kaba (May 2014), Project NIA, for Chicago Youth Justice Data Project
(www.chicagoyouthjustice.com)
Expulsions (including Charters)
In the 2012-2013 school year, 307 students were kicked out of Chicago charter schools, which have a
total enrollment of about 50,000. In district-run schools, there were 182 kids expelled out of a student
body of more than 353,000. That means charters expelled 61 of every 10,000 students while the districtrun schools expelled just 5 of every 10,000 students.
EXPULSIONS
Number of Students Expelled: District-Managed Schools
(353,261 enrollment in SY12-13)
Number of Students Expelled: Charter Schools (50,200
enrollment in SY12-13)

SY12-13
EOY
182

SY13-14
Sem 1
52

307

151

Black students were 30 times more likely to be expelled from CPS as white students.4
Charter school students in Chicago are 11 times more likely to be expelled than students in traditional
schools.
Of the 25 schools with the top expulsion rates last year, 22 of them were charters.
Chicago Public School Arrest Data (Source: Policing Chicago Public Schools Vol. 2 http://cpdincps.com/)
Overall youth school-based arrests have been decreasing. In 2010, over 5,500 arrests of young people
under 18 years old took place on CPS properties. In 2011, the number of youth school-based arrests
(under 18) was 4,959 and in 2012, it was 4,287. This is a decrease of 23% since 2010.
Black youth are still disproportionately targeted by these arrests. While they represent about 42% of
CPS students, black youth accounted for 75.5% percent of school-based arrests in 2012. This mirrors
the general trend of disproportionate minority contact within the juvenile legal system.
In 2012, young men were more likely to be arrested on CPS properties than were their female
counterparts [68% vs. 32%].
Most youth school-based arrests are for misdemeanor offenses (84%) as opposed to felonies (16%).
In 2012, 86% of youth school-based arrests happened in school buildings while 14% took place on
school grounds.
In 2012, the top three aggregate numbers of youth school-based arrests were in the 8th, 5th, and 4th
police districts. Together these three districts accounted for 30% of total youth school-based arrests
on CPS properties.
Voices of Youth in Chicago Education (VOYCE) estimates that 25 students arrested in Chicago Public
Schools DAILY. http://chiyouthjustice.wordpress.com/2012/04/27/25-arrests-a-day-on-cps-properties/
4

Analysis by VOYCE: http://voyceproject.org/wp-content/uploads/2014/04/Fact-Sheet-1.pdf

Prepared by Mariame Kaba (May 2014), Project NIA, for Chicago Youth Justice Data Project
(www.chicagoyouthjustice.com)
CPS Demographics
Total CPS Student Enrollment

400,579

American Indian/Alaska Native

Asian
Black
Hispanic
Native Hawaiian/Pacific Islander
Two or More Races
White

0.4%
3.4%
41.3%
44.5%
0.2%
1.4%
8.9%

Female
Male

49.7%
50.3%

Students with Disabilities (IDEA)

13%
Limited English Proficiency (LEP)
16%
Source: U.S. Department of Education, National Center for Education Statistics, 2011-2012

Juvenile Justice in Illinois: A Data Snapshot

April 2014 | By Mariame Kaba, Project NIA

1 | Juvenile Justice in Illinois: A Data Snapshot

Nationally, theres been a steady decrease in the rate of violent crime committed by juveniles over the past fifteen years. In
2011, the serious violent crime1 offending rate was 6 crimes per 1,000 juveniles ages 1217, with a total of 154,000 such crimes
involving juveniles. This was similar to the rate in 2010, but it was significantly lower than the 1993 peak rate of 52 crimes per
1,000 juveniles ages 1217.

Yet, for years, more and more juveniles were being arrested
and locked up. This trend has been reversed in the past
few years. According to the Office of Juvenile Justice and
Delinquency Prevention (2014), there were 1.47 million
arrests of young people under 18 years old in 2011,
an 11 percent decrease since 2010. In addition:
In 2011, arrests of juveniles for Violent Crime Index offenses
(murder, forcible rape, robbery and aggravated assault) were
down ten percent from 2010, continuing a recent decline.
Between 2007 and 2011, juvenile arrests for these violent
offenses fell considerably: murder (down 37 percent),
forcible rape (down 22 percent), robbery (down 31 percent)
and aggravated assault (down 29 percent). 2
A similar downward trend can be detected with respect to
youth incarceration and detention:
For the 2001-to-2011 ten-year period, the number of
confined youth declined by 41% nationwide, or an annual
average decline of 4.1% a dramatic drop since 2000,
when a record-setting 108,802 youth were held in detention
centers awaiting trial or confined by the courts in juvenile
facilities in the U.S. The nationwide decline in 2011 (from
70,793 to 61,423 youth) continues the trend from the
previous year (the latest for which data is available), which
showed youth confinement was reduced by 32% nationwide
from 2001-2010.3

Even with this steady decrease in the number of incarcerated

youth, the U.S. still locks up a much higher rate of young people
than other nations. Most of these young people are imprisoned
for non-violent offenses. In 2011, 63 percent of youth in
residential facilities were held for property offenses, drug
offenses, technical violations, status offenses, or public order
offenses.4 We spend about $6 billion annually on juvenile
corrections and we imprison youth at an average of $88,000
per child per year. Research and anecdotal evidence show
that incarceration actually makes children worse.
The juvenile justice system disproportionately targets
youth of color. Children of color ages 10-17 represent only
16 percent of the overall child population ages 10-17, but
make up 34 percent of children arrested, 38 percent of
children adjudicated, and 68 percent of children in
residential placement.5 Over 60,000 children were held
in residential placement in 2011 on any given day. Black
children were almost five times more likely to be in
residential placement than white children. Hispanic and
American Indian children were two to three times more likely
(Childrens Defense Fund, 2014). In Illinois, more specifically,
Black children were 4.6 times more likely to be in residential
placement in 2011 than whites and Latino youth were 1.8
times more likely than whites.
The next few pages will offer data about juvenile justice
specific to Illinois, Cook County, and Chicago. First, however,
it is important to contextualize this data by first considering
how many children and youth (ages 5-17) live in the state,
county, and city.

Source: Bureau of Justice Statistics, National Crime Victimization Survey and Federal Bureau of Investigation, Uniform Crime Reporting Program, Supplementary Homicide Reports.
Source: Puzzanchera, Charles. Juvenile Arrests 2011. Office of Juvenile Justice & Delinquency Prevention (2014)
The Comeback and Coming-from-Behind States: An Update on Youth Incarceration in the United States, 2013 - http://www.njjn.org/our-work/coming-from-behind-states-youth-incarceration
4
Melissa Sickmund, et al., Easy Access to the Census of Juveniles in Residential Placement, 1997-2011, Office of Juvenile Justice and Delinquency Prevention Statistical Briefing Book (2013)
5
The State of Americas Children 2014, Childrens Defense Fund, http://www.childrensdefense.org/child-research-data-publications/state-of-americas-children/
1
2
3

2 | Juvenile Justice in Illinois: A Data Snapshot

Illinois: Sex by Race population estimates, 2012 (youth ages 517)

White

Black

Am Indian

Asian

Total

Male

873,526
(76.1%)

206,995
(18.1%)

10,529
(0.9%)

56,509
(4.9%)

1,147,559
(100%)

Female

831,912
(75.6%)

201,697
(18.33%)

10,286
(0.9%)

56,333
(5.1%)

1,100,228
(100%)

1,705,438
(75.9%)

408,692
(18.2%)

20,815
(0.9%)

112,842
(5%)

2,247,787
(100%)

Total

Source: Puzzanchera, C., Sladky, A. and Kang, W. (2013). Easy Access to Juvenile Populations: 1990-2012. Online.
Available: http://www.ojjdp.gov/ojstatbb/ezapop/

Illinois: Sex by Race population estimates, HISPANIC (23%), 2012 (youth ages 5-17)
White

Black

Am Indian

Asian

Total

Male

245,226
(91.4%)

11,361
(4.2%)

8,277
(3.1%)

3,338
(1.2%)

268,202
(100%)

Female

234,496
(91.4%)

10,986
(4.3%)

7,995
(3.1%)

3,015
(1.2%)

256,572
(100%)

Total

479,722
(91.4%)

22,347
(4.25%)

16,272
(3.1%)

6,433
(1.2%)

524,774
(100%)

Source: Puzzanchera, C., Sladky, A. and Kang, W. (2013). Easy Access to Juvenile Populations: 1990-2012. Online.
Available: http://www.ojjdp.gov/ojstatbb/ezapop/

Cook County, Illinois: Sex by Race population estimates, 2012 (youth ages 5-17)
White

Black

Am Indian

Asian

Total

Male

280,443
(63.3%)

130,264
(29.4%)

5,630
(1.3%)

26,486
(6%)

442,823
(100%)

Female

268,118
(62.63%)

128,471
(30%)

5,375
(1.25%)

26,125
(6.1%)

428,089
(100%)

Total

548,561
(63%)

258,735
(29.7%)

11,005
(1.3%)

52,611
(6%)

870,912
(100%)

Source: Puzzanchera, C., Sladky, A. and Kang, W. (2013). Easy Access to Juvenile Populations: 1990-2012. Online.
Available: http://www.ojjdp.gov/ojstatbb/ezapop/

Cook County, Illinois: Sex by Race population estimates, HISPANIC (35%),

2012 (youth ages 5-17)
White

Black

Am Indian

Asian

Total

Male

142,010
(91.2%)

6,919
(4.4%)

4,827
(3.1%)

1,946
(1.25%)

155,702
(100%)

Female

135,762
(91.2%)

6,644
(4.5%)

4,563
(3.1%)

1,842
(1.2%)

148,811
(100%)

Total

277,772
(91.2%)

13,563
(4.4%)

9,390
(3.1%)

3,788
(1.2%)

304,513
(100%)

Source: Puzzanchera, C., Sladky, A. and Kang, W. (2013). Easy Access to Juvenile Populations: 1990-2012. Online.
Available: http://www.ojjdp.gov/ojstatbb/ezapop/

3 | Juvenile Justice in Illinois: A Data Snapshot

It is estimated that there were 567,827 youth ages 517 living in Chicago in 2010
(Source: U.S. Census Bureau 2006-2010, American Community Survey).

Total Youth 517 year olds by Race/Ethnicity in Chicago: 2010 Census

Race

Number

Percent

White

66,525

11.7%

Black

191,461

33.7%

845

0.1%

16,059

2.8%

Hawaiian

88

0%

Hispanic

185,676

32.8%

Some Other Race Alone

95,388

16.8%

Two or More Races

11,785

2.1%

TOTAL

567,827

100%

Native American
Asian

Total Youth 5-17 year olds by Sex and Age in Chicago: 2010 Census
(20062010 American Community Survey)
Male

Female

Total

5-9 Year Olds

92,801

148,384

241,185

10 to 14 Year Olds

88,522

108,952

197,474

15-17 Year Olds

64,752

64,416

129,168

246,075 (43.3%)

321,752 (56.7%)

567,827 (100%)

TOTAL

Source: Puzzanchera, C., Sladky, A. and Kang, W. (2013). Easy Access to Juvenile Populations: 1990-2012. Online.
Available: http://www.ojjdp.gov/ojstatbb/ezapop/

4 | Juvenile Justice in Illinois: A Data Snapshot

Juvenile Arrests in Illinois and Cook County

(Source: Illinois Criminal Justice Information Authority,
2/7/14)

The most recent data about juvenile justice in Illinois and

Chicago show that:

Illinois
In 2012, there were about 46,800 juvenile arrests in Illinois.
The most common offense statewide was property offense
(15,148), followed by person offense (12,387). Youth were
arrested for offenses in different classes: felony and
misdemeanor. The majority of arrests were for misdemeanor
offenses (59%) and twenty-five (25) percent were felonies.
Sixteen (16) percent of arrest offense classes were unknown
in CY2012.
African American youth were more likely to come in contact
with the juvenile justice system than white youth. In 2012,
the data reveal that African American youth were arrested at
a much higher rate than white youth. Of the 46,800 juvenile
arrests across Illinois, fifty nine percent (59) of arrests involved
African American youth, and forty percent (40) involved
white6 youth. In Illinois, African American youth were over
represented at the point of arrests at a level triple their
representation in the general youth population. On the other
hand, white youth were under-represented and arrested at
a level about 45 percent less than their representation in the
Illinois youth population. In non-Cook County areas, African
American youth are still over-represented at a level triple
their representation in the general non-Cook County youth
population. Sixty-one (61) percent of arrests for both felonious
offenses and misdemeanor offenses involved African
American youth, and 38 percent of arrests for both of the
offenses involved white youth.

Drug Offenses
In 2012, there were 6,654 arrests statewide related to drug
offenses, 54 percent (3,593 arrests) of which involved African
American youth. This means that African American youth
were over-represented at a level almost triple their
representation in the Illinois youth population (18 percent).
Seventy percent (4,662 arrests) of Illinois drug arrests
happened in Cook County. Of 4,662 arrests in Cook County,
70 percent involved African American youth. This means
African American youth were overly represented in drug
arrests at a level double their representation in Cook County
youth population (RI=2.33). On the other hand, thirty percent
of Cook County drug offense arrests involved White and
other youth.
This also means that although African American youth
represent only 18 percent of the general youth population
in Illinois, Cook Countys African American drug arrests
accounted for 49 percent of statewide drug arrests
(54 percent of Illinois drug arrests involved African American
youth). The over-representation of African American
youth remains in non-Cook County areas. This racial
disproportionality is striking considering that many studies
suggest that white youth are more likely to use substances,
especially hard drugs, than African American youth.
In summary, there are a much higher number of juvenile
arrests in Cook County than in the rest of the state. In both
Cook County and across the state, African American youth
are arrested at much higher rates than white youth.
Furthermore, African American youth are more likely to
be arrested for drug offenses. In fact, almost half of drug
offense arrests in Illinois involve African American youth
in Cook County.

Cook County
In 2012, there were 29,822 juvenile arrests in Cook
County. Cook County accounted for a disproportionately
large number of juvenile arrests, 64 percent, despite the
fact that Cook accounts for only 39 percent of the youth
population in Illinois.
Racial disparity in arrests remained when looking only
at Cook County. Only 27 percent of Cook County arrests
involved White youth, and seventy two (72) percent involved
African American youth. This number is striking in that
African American youth accounted for only thirty percent
of the Cook County youth population (ages 517) in 2012;
African American youth were over represented at the
point of arrest at a level of 2.4 times greater than their
representation in the Cook County youth population.
On the other hand, white youth were under-represented.

The numbers were received without breaking them out according to ethnicity. As such, Latino youth are included in all racial categories but would mostly be included as white.

5 | Juvenile Justice in Illinois: A Data Snapshot

Juvenile Arrests (Age 10-17) in Cook County, CY2012

60624
60644 60624
60623

60629

60629
60620

60637
60619

60628

60617

Arrests
n50
51n100
101n200
201n300
301n500
501n700
701n1000
1001n

Arrest data was provided by the Illinois Criminal Justice Information Authority.
Map was prepared by Kanako Ishida, Juvenile Justice Initiative, on March 10, 2014.

6 | Juvenile Justice in Illinois: A Data Snapshot

CY2012 Illinois and Cook County Juvenile Arrests

Age
Location

10

11

12

13

14

15

16

17

Grand Total

10

30

123

290

625

1,179

1,484

1,438

5,179

27

452

858

1,103

1,030

3,782

Cook
Female
Asian
Black

*
*

24

94

213

American Indian/Alaskan
Unknown

White

28

76

167

307

369

402

1,357

Male

33

116

362

1,136

2,697

5,095

7,187

8,017

24,643

23

37

40

115

281

824

1,990

3,787

5,191

5,513

17,708

Asian
Black

27

95

American Indian/Alaskan
Unknown
White

21

11

13

43

79

304

691

1,277

1,947

2,449

6,774

Unknown Gender

Non-Cook
Female

46

144

Asian
Black

27

American Indian/Alaskan

71

319

576

877

1,201

1,409

4,577

14

36

131

236

340

375

441

1,624

Unknown

11

13

21

60

White

18

68

181

327

522

804

930

2,852

Male

50

147

346

821

1,398

2,166

3,039

4,406

12,373

11

26

25

75

166

380

582

823

1,012

1,400

4,466

Asian
Black

29

74

American Indian/Alaskan
Unknown
White

21

18

15

32

50

71

188

72

178

418

791

1,299

1,950

2,907

7,636

976

2,567

5,297

12,914

15,273

46,782

Unknown Gender
Grand Total

98

339

9,318

* = under 10

7 | Juvenile Justice in Illinois: A Data Snapshot

Race
Location

Asian

Black

Am Ind/Alask

Unknown

White

Grand Total

Felony

24

5,550

1,369

6,953

Misdemeanor

102

13,323

34

5,899

19,364

Other/Unknown

16

2,621

867

3,513

Felony

20

2,187

61

2,340

4,610

Misdemeanor

54

2,772

117

5,447

8,397

Cook

Non-Cook

Other/Unknown

38

1,145

73

2,722

3,982

Grand Total

254

27,598

21

302

18,644

46,819

Unknown

White

Grand Total

10

1,385

4,662

19

63

1,710

5,734

Race
Location

Asian

Black

22

3,245

Am Ind/Alask

Cook
Drug
Homicide

44

Other

35

3,972

16

Person

33

6,594

2,170

8,806

Property

47

6,942

18

2,552

9,563

10

28

48

139

Sex (non-violent)

18

Sex Crimes

90

Status Offenses

15

22

582

226

813

13

348

1,600

1,992

12

34

95

3,129

4,784

40

1,861

3,581

71

3,180

5,585

13

18

99

144

Weapons

Non-Cook
Drug
Homicide
45

1,507

Person

16

1,664

Property

36

2,297

Sex (non-violent)

Sex Crimes

42
*

Weapons
Grand Total

29

22

Other

Status Offenses

254

*
*

70

488

569

149

127

282

27,598

21

302

18,644

46,819

* = under 10

8 | Juvenile Justice in Illinois: A Data Snapshot

Juvenile Arrests in Chicago

(Source: Project NIA)
1. There has been a continuing decrease in the number of
juvenile arrests (youth 17 and under) in Chicago. Since
2009, juvenile arrests in the city have dropped by 26.7%.

Juvenile Arrests
(17 and Under, City of Chicago, 2009-2012)
2009

2010

2011

2012

% change

31,224

27,563

25,111

22,877

-26.7%

Source: CPD Research and Development Division, Research and

Analysis Section
2. According to the Chicago Police Department (CPD), there
were 22,877 arrests of youth 17 and under in 2012 (some
youth may be arrested more than once). This represents
a nearly 27% decline in juvenile arrests since 2009.
(Arresting Justice 2, 8/13)
3. In 2012, black youth accounted for 79% of juvenile arrests
in Chicago (Arresting Justice 2, 8/13)
4. Expressed in per capita rates, in 2012, black youth
were arrested 7.6 times per 100 youth, five times more
frequently than Hispanic youth (1.5 arrests per 100 youth)
and TEN times more frequently than white youth (0.7
arrests per 100 youth). (Cook, Czykieta, Mack, Skrable,
& Kaba 8/13)
5. For the first time, we present a district by district
breakdown of percentages of specific racial populations
compared to the percentage of arrests constituted by
members of that racial group.

9 | Juvenile Justice in Illinois: A Data Snapshot

Racial Breakdown of Percentage of Youth & Arrests by District (2012)

District

% Black
Youth

Black % of
Youth Arrests

% White
Youth

White % of
Youth Arrests

% Hispanic
Youth

Hispanic % of
Youth Arrests

32.70%

89.50%

35.10%

2.50%

9.01%

6.84%

81.60%

96.90%

8.25%

0.68%

3.48%

1.45%

94.40%

99.30%

1.10%

0.30%

2.05%

0.22%

59.90%

86.10%

3.28%

1.22%

35.40%

12.10%

95%

98.90%

0.32%

0.31%

3.95%

0.77%

97.10%

99.50%

0.19%

0.08%

1.51%

0.15%

96.70%

99.90%

0.14%

0.07%

1.92%

0.07%

19.90%

59.60%

9.23%

4.83%

69.40%

35.20%

12.80%

52.90%

6.63%

6.12%

69.50%

40.50%

10

29.50%

61.60%

0.92%

1.05%

69.10%

37.10%

11

84.80%

98.10%

0.93%

0.22%

12.90%

1.49%

12

23.30%

52.00%

11.30%

1.57%

59.40%

46.30%

13

25.10%

70.50%

24.50%

3.41%

36.50%

26.10%

14

10.60%

35.10%

18.90%

6.44%

66.50%

57.80%

15

93%

99.50%

0.71%

0.14%

4.93%

0.41%

16

1.10%

17.50%

55.40%

39.50%

35.10%

40.80%

17

3.48%

28.00%

25.80%

13.10%

57.70%

57.30%

18

21.10%

91.50%

60.10%

2.58%

7.01%

4.94%

19

11.80%

60.50%

61.70%

14.80%

16.30%

23.50%

20

12.90%

69.80%

34.80%

0%

32.20%

29.40%

22

60.50%

95.00%

32.40%

3.61%

5.19%

1.29%

24

20.40%

70.70%

27.20%

4.41%

32.10%

22.50%

25

15.40%

46.80%

6.07%

4.00%

76.50%

48.80%

Black youth are arrested in greater proportion than their

populations represent throughout the entire city. Hispanic
youth are arrested in greater proportions in a few districts
on the Northside and white youth are arrested in smaller
proportions than their population throughout the entire city.
(Cook, Czykieta, Mack, Skrable, & Kaba, 8/13)
6. In Chicago, boys/young men were 84% of juvenile arrests
in 2012 (Arresting Justice 2, 8/13).

8. In 2012, most of the juvenile arrests (64.5%) in Chicago

were concentrated in 10 districts. In order of most
aggregate arrests, these districts are 8, 11, 7, 15, 4, 3, 6, 5,
9, and 10 (Arresting Justice 2, 8/13).
9. There were 1,080 formal and 6,149 informal stations
adjustments reported by the Chicago Police Department
in 2012 (Arresting Justice 2, 8/13).

7. Most juvenile arrests in Chicago were for misdemeanor

offenses (74%) in 2012 (Arresting Justice 2, 8/13).

Sources: Kaba, Mariame (2013) Arresting Justice (Second Edition): Juvenile Arrests in Chicago, 2011 and 2012.

Cook, Czykieta, Mack, Skrable & Kaba (2013) Trends in Chicago Juvenile Arrests, 2009-2012.

10 | Juvenile Justice in Illinois: A Data Snapshot

Another data source for juvenile arrests by the Chicago Police Department is the Criminal History Record Information system
(CHRI). The numbers are close to the ones that Project NIA accessed through CPD. We wanted to share this analysis of juvenile
arrest numbers by the Illinois Criminal Justice Authority because they provide additional detail and valuable information. You
can see the difference between total arrests and number of youth involved in these arrests, for example. This shows that
some youth are arrested more than once.
CPD Arrests of Youth 17 & younger (Data Source: CHRI)
CHRI

Violent

% Change

2007

3,169

2008

3,373

6%

Non Violent

% Change

32,720
29,701

Total

%Change

35,889
-9%

33,074

-8%

2009

2,947

-13%

27,705

-7%

30,652

-7%

2010

2,768

-6%

24,588

-11%

27,356

-11%

2011

2,377

-14%

22,659

-8%

25,036

-8%

2012

2,370

0%

20,392

-10%

22,762

-9%

Total

%Change

Estimated Number of Youth Responsible (SID Aggregation)

CHRI

Violent

% Change

Non Violent

% Change

2007

2,805

2008

2,967

6%

15,553

-7%

18,520

-5%

2009

2,600

-12%

14,434

-7%

17,034

-8%

2010

2,422

-7%

12,881

-11%

15,303

-10%

2011

2,074

-14%

12,000

-7%

14,074

-8%

2012

2,073

0%

10,346

-14%

12,419

-12%

Total

%Change

16,726

19,531

Average Number of Arrests per Youth

CHRI

Violent

% Change

Non Violent

% Change

2007

1.130

2008

1.137

0.006

1.910

-0.024

1.786

-0.028

2009

1.133

-0.003

1.919

0.005

1.799

0.008

1.956

1.837

2010

1.143

0.008

1.909

-0.005

1.788

-0.007

2011

1.146

0.003

1.888

-0.011

1.779

-0.005

2012

1.143

-0.002

1.971

0.044

1.833

0.030

Source: Illinois Criminal Justice Information Authority, prepared by Rebecca Skorek (2014)

11 | Juvenile Justice in Illinois: A Data Snapshot

Juvenile Arrests in Chicago Public Schools,

2012 (Source: Policing CPS http://cpdincps.com/)

Cook County Expungements of Juvenile

Records (Source: Cook County Clerk of the
Court, Feb 2014)

The key data points in the Policing CPS report are that:

In Illinois, an arrest = a criminal record. People with

qualifying juvenile arrests and/or convictions can petition
the court to expunge (erase) their records. It has been
difficult to access reliable numbers about the number of
juvenile expungements of criminal records in Cook County
over the years. Below are some numbers that were provided
to the Legal Assistance Foundations juvenile expungement
help desk by the Cook County clerk of the court.

1. Overall youth school-based arrests have been decreasing.

In 2010, over 5,500 arrests of young people under 18 years
old took place on CPS properties. In 2011, the number of
youth school-based arrests (18 & under) was 4,959 and in
2012, it was 4,287.
2. Black youth are still disproportionately targeted by these
arrests. While they represent about 42% of CPS students,
black youth accounted for 75.5% percent of school-based
arrests in 2012. This mirrors the general trend of
disproportionate minority contact within the juvenile
legal system.
3. In 2012, young men were more likely to be arrested on
CPS properties than were their female counterparts
(68% vs. 32%).

Year

Cook
Juvenile
Arrests

Total
Petitions
Filed

Indiv Who
Filed at Least
1 Petition

2012

29,822

549

313

2013

N/A

660

378

1,209

691

4. Most youth school-based arrests are for

misdemeanor offenses (84%) as opposed
to felonies (16%).
5. In 2012, 86% of youth school-based arrests
happened in school buildings while 14% took
place on school grounds.
6. In 2012, the top three aggregate numbers
of youth school-based arrests are in the 8th,
5th, and 4th police districts. Together these
three districts account for 30% of total youth
school-based arrests on CPS properties.

12 | Juvenile Justice in Illinois: A Data Snapshot

Juvenile Detention in Illinois and

Cook County

Cook County (Source: Juvenile Temporary

Detention Center, Justice Advisory Council)

Illinois (excluding Cook County) (Source: Administrative

Office of the Illinois Courts)

In 2007, the Cook County Juvenile Temporary Detention

Center (JTDC) was taken over by a U.S. Federal Judge and
assigned a temporary administrator. This dramatic action
came after several lawsuits beginning with one filed in 1999
by the American Civil Liberties Union (ACLU). JTDC had been
plagued by years of mismanagement, allegations of abuse,
overcrowding, unsanitary conditions, and inadequate
services for youth who were detained at the facility. Though
the conditions at JTDC have improved, advocates are calling
for the jail to be closed. A report7 by the National Council
on Crime and Delinquency, which was commissioned by the
Jane Addams Juvenile Court Foundation, suggested that
Cook County close JTDC and also called for an investigation
into the disproportionate number of minorities who are
jailed in the detention center. Their findings suggest that
black youth are detained at 46 times the rate of their
white peers.

The following information comes from 15 juvenile detention

centers across Illinois but excludes data from Cook County.
In 2012, the average daily population of juvenile detainees in
Illinois (excluding Cook County) was 422. The average length
of stay in 2012 was 17.1 days. 79% of juvenile detainees
were male and 21% were female in 2012. 45% of juvenile
detainees were white and 40% were black. The largest age
group was 16 year olds.

Average Daily Population

Juvenile Detainees (20082012)
2008

2009

2010

2011

2012

480

499

450

383

422

Average Length of Stay (Days)

Juvenile Detainees (20082012)
2008

2009

2010

2011

2012

18.2

18.3

18.0

17.0

17.1

Race/Ethnicity of Juvenile Detainees (2012)

Black 40%
Hispanic 11%

The Cook County Juvenile Temporary Detention Center8

(JTDC) serves mostly as a pre-trial detention facility. This
facility holds juveniles in custody while their case is pending,
but before an adjudication of delinquency.
According to data from the JTDC, in 2012, 4,484 youth were
admitted to the facility and in 2013 that number was 4,267
(85% were black). The number of youth detailed at JTDC has
been steadily decreasing over the years as can be seen in the
chart below. Since 2010, the number of youth admitted to
JTDC has fallen by 19%.

White 45%

2010

2011

2012

2013

Other 4%

5271

5,177 (*previously
reported as 5,183)

4,484

4,267

Age of Juvenile Detainees (2012)

12 and under 3%
13 6%
14 13%
15 22%
16 32%
17 and over 24%

National Council on Crime & Delinquency (Feb 2012). Juvenile Detention in Cook County: Future Directions. http://www.janeaddamsfdn.org/documents/NCCDReport-ReissuedFeb2012-3.pdf
The Cook County Juvenile Temporary Detention Center is the juvenile jail for the county. Following allegations of abuse, violence, and unsanitary conditions, control of JTDC was handed over
to a temporary administrator, Earl Dunlap, through an order from a U.S. Federal Judge.
7
8

13 | Juvenile Justice in Illinois: A Data Snapshot

Decreases did not vary significantly among racial and ethnic groups, with the exception of the Mexican sub-group, which saw
significant decreases in entries; Mexican youth saw a 90.3% decrease in JTDC entries.
% Change

% Change

% Change

% Change

Race

Black

3,633

85.14%

3,775

84.20%

4,306

83.00%

11,714

84.07%

Hispanic

490

11.48%

480

10.70%

552

10.60%

1522

10.92%

Mexican

10

0.23%

49

1.09%

103

2.00%

162

1.16%

Puerto Rican

0.21%

18

0.40%

33

0.60%

60

0.43%

White

112

2.62%

132

2.94%

153

3.00%

397

2.85%

Other

13

0.30%

30

0.67%

36

0.70%

79

0.57%

2008

2,967

18,520

15,553

18,520

18,520

18,520

18,520

18,520

Total

4,267

99.98%

4,484

100.00%

5,183

100.00%

13,934

100.00%

In 2012, 4,078 (91%) of the detained youth were male and 406 (9%) were female. 84% of the jailed youth were Black while over
12% were Hispanic/Latino. Only 3% were white. Over 60% of the youth were ages 15 and 16. The biggest percentages of youth
were detained from a few hours to 7 days (47.5%).

County Juvenile Temporary Detention

Center - Population by Race, Sex, Age
(Calendar Year 2012)

County Juvenile Temporary Detention

Center Average Length of Stay
(Calendar Year 2012)

Admissions
Race (self-identified)

Length of Stay
%

Black

3,775

84%

0-24 hours

737

16.51%

Hispanic

480

10.7%

1-7 days

1,384

31%

Mexican

49

1.09%

8-14 days

610

13.66%

Puerto Rican

18

0.4%

15-30 days

1,105

24.75%

White

132

3%

31-90 days

519

11.63%

Total

4,484

100%

91+ days

109

2.44%

Female

406

9%

Total Released

4,464

100%

Male

4,078

91%

Total

4,484

100%

Age 10 to 12

29

0.6%

Age 13 to 14

628

14%

Age 15

1,116

25%

Age 16

1,680

37.5%

Age 17

827

18..4%

Age 18 & Over

199

4.4%

Total

4,479

100%

14 | Juvenile Justice in Illinois: A Data Snapshot

Cook County Juvenile Temporary Detention Center

Admission, 10/1/2012 through 9/30/2013

Cook County JTDC Admissions, 10/1/2012 9/30/2013

Zip codes used for mapping are self-reported these zip codes could be the youths residence, offense location, or their
parents residence. 18 zip codes youth reported were not valid. A few zip codes far out of Cook County and out of Illinois
were eliminated for mapping.
Map based on Longitude (generated) and Latitude (generated). Color shows details about Frequency. Details are shown for
Zip. The view is filtered on Zip, which excludes some zip code areas outside of Illinois and far out of Cook. 18 zip codes were
not valid. Prepared on 3/3/2014 by Kanako Ishida, Juvenile Justice Initiative.

15 | Juvenile Justice in Illinois: A Data Snapshot

Juvenile Incarceration in Illinois

FY201210 Youth Prisons Data

Prior to 2006, juveniles9 who were convicted of crimes and

sentenced to prison were housed under the auspices of the
Illinois Department of Corrections (IDOC). In 2006, the
Illinois Department of Juvenile Justice (DJJ) was created as
a standalone agency to focus on rehabilitation for juveniles
rather than punishment. Unfortunately, this goal has yet to
be realized because the Department has been chronically
under-resourced since its inception.

A total of 2,198 juveniles were admitted to the DJJ in

FY2012. The majority of these youth were black (63%)
followed by white (25%) and Latino (11%) youth. Many more
young men (93%) were behind bars than young women (7%).

There are currently six youth prisons in Illinois (two juvenile

prisons closed in FY2013). Only one houses girls and young
women (IYC-Warrenville). We also know that about 70 percent
of youth who were sent to DJJ in fiscal year 2011 were
non-violent offenders or technical parole violators.

It is important to note that 892 (or about 43%) of the youth

admitted to DJJ in FY2012 were from Cook County. Cook
sends far and away more youth to Illinois juvenile prisons
than any other county in the state. Cook is followed by
Winnebago (126 or about 6%) and Peoria (114 or about 6%)
as the top committing counties in Illinois. Parole violators
composed 49% of admissions (more than half of these are
technical violations).

It is very expensive to imprison youth in Illinois. As the John

Howard Association points out:
Illinois taxpayers spend almost $130 million a year on
IDJJ, which amounts to upwards of $177,000 per year to
incarcerate a single youth at the agencys most expensive
facility. Compare this to Redeploy Illinois, a state-funded
diversion program that enables counties to hold young
offenders accountable in their communities. Research has
shown that Redeploy is about four-times more effective
at reducing recidivism than sending kids to IDJJ facilities
and only costs between $2,000 to $10,000 per intervention.
Between 2001 and 2011, Illinois reduced its youth
incarceration rate by 41% matching the national number.
The number of youth confined between 2010 and 2011
dropped by 5%. 2,106 youth were confined in Illinois in 2011.
Illinois confined 169 youth for every 100,000 youth in the
states general population, or 13.3% lower than the U.S.
average rate of confinement (195). (The Comeback and
Coming-From-Behind States: An Update on Youth
Incarceration in the United States, 2013).
In Illinois, between state fiscal years 2000 and 2010, total
admissions to the Illinois Department of Juvenile Justice (IDJJ)
dropped 19 percent, to 2,162. In addition, the number of
youth admitted to IDJJ for a new sentence (as opposed to
a technical violation of parole) fell 34 percent (Bostwick et.
al, 2012).

As of 2010, a juvenile in Illinois is defined as youth under 18 who have committed misdemeanors and those 17 and under with felony convictions.
The fiscal year in Illinois is July 1 to June 30.

10

16 | Juvenile Justice in Illinois: A Data Snapshot

Below are a couple of charts that provide important information about the number and characteristics
of Illinois youth admitted 11 to the Department of Juvenile Justice in Fiscal Year 2012.
Fiscal Year 2012 Institutional Admissions
Total

Court Admissions

Parole Violators

Number

Percent

Number

Percent

Number

Percent

Asian

0.1%

0.1%

0.0%

Black

1,258

63.2%

612

60.1%

646

66.6%

227

11.4%

133

13.1%

94

9.7%

0.2%

0.2%

0.1%

White

500

25.1%

271

26.6%

229

23.6%

Total

1,989

100.00%

1,019

100.00%

970

100.00%

13

25

1.3%

25

2.5%

0.0%

14

82

4.1%

74

7.3%

0.8%

15

229

11.5%

203

19.9%

26

2.7%

Race

Hispanic
American Indian

Current Age

16

514

25.8%

393

38.6%

121

12.5%

17

497

25.0%

250

24.5%

247

25.5%

18

303

15.2%

61

6.0%

242

24.9%

19

206

10.4%

10

1.0%

196

20.2%

20

133

6.7%

0.3%

130

13.4%

1,989

100.00%

1,019

100.00%

970

100.00%

1,858

93.4%

946

92.8%

912

94.0%

131

6.6%

73

7.2%

58

6.0%

1,989

100.00%

1,019

100.00%

970

100.00%

78

8.0%

Total
Gender
Male
Female
Total

Prior Criminal/Delinquency Petitions

None

225

11.3%

147

14.4%

1-5

901

45.3%

489

48.0%

412

42.5%

6-10

605

30.4%

273

26.8%

332

34.2%

11-15

187

9.4%

77

7.6%

110

11.3%

More than 15

71

3.6%

33

3.2%

38

3.9%

1,989

100.00%

1,019

100.00%

970

100.00%

Murder

0.4%

0.7%

0.1%

Class X Felony

72

3.6%

36

3.5%

36

3.7%

Total
Holding Crime Class

Class 1 Felony

432

21.7%

198

19.4%

234

24.1%

Class 2 Felony

596

30.0%

312

30.6%

284

29.3%

Class 3 Felony

416

20.9%

201

19.7%

215

22.2%

Class 4 Felony

332

16.7%

156

15.3%

176

18.1%

Misdemeanor

133

6.8%

109

10.7%

24

2.5%

1,989

100.00%

1,019

100.00%

970

100.00%

Total

Keep in mind the difference between the number of youth who are locked in Illinois juvenile prisons on any given day like Aug 30th 2013 for example (904) vs. the total number of youth who were
admitted to prison over the course of a fiscal year (1,989).
11

17 | Juvenile Justice in Illinois: A Data Snapshot

In 2012, 50% of admissions to DJJ were for nonviolent

(property/drug) offenses. On a given day, about 30% of
the population is past the presumptive release date, 5% are
under low supervision, and 4% are misdemeanants.
On August 31, 2013, there were 904 youth incarcerated in
6 youth prisons statewide. 95% of these incarcerated youth
were male and 5% were female. Their average age was
17 years old. 66% of DJJ youth were black, 24% were white,
and 11% were Hispanic. Youth from Cook County were most
represented comprising 46% of all commitments to DJJ
followed by Central at 25% (DJJ monthly statistics). In FY13,
there were 1,835 total admissions to DJJ with an average
length of stay of nine months.
IDJJ releases more than 2,400 youth back into the
community each year (Bostwick et. al, 2012). As of 8/31/13,
1,319 youth in Illinois were on parole (DJJ monthly statistics).

Probation (Source: Administrative Office

of the Illinois Courts)
Across Illinois, some youth are diverted or sentenced to
probation for various offenses. Over the past 5 years, the
active probation caseload has decreased by 17%. In 2012,
74% of juveniles on probation were male and 26% were
female. Most youth on probation in Illinois were white (44%)
and 17 or over (29%). The most frequent offense types for
those on probation in 2012 were person-related (43%) and
property-related (43%). 71% of Illinois probationeers
successfully completed their term.

Illinois Juvenile Active Caseloads12

(20082012)

In a study by the Illinois Criminal Justice Information

Association published in 2012, eighty-six percent of youth
in the study were re-arrested within three years of release.
Youth released after serving sentences for sex offenses were
the least likely to be re-arrested. Illinois re-arrest rates were
similar to those reported in California and Florida, but were
higher than in New York and Texas. Seventy percent of youth
were re-incarcerated during the study period. Forty-one
percent of youth were incarcerated at least once for a new
offense and 53 percent of youth were re-incarcerated
at least once for a technical violation of parole.
Anna Aizer and Joseph Doyle, Jr. examined roughly 35,000
former Chicago Public School students who had now grown
up. In a working paper published in 2013 titled Juvenile
Incarceration, Human Capital and Future Crime: Evidence from
Randomly-Assigned Judges, they found that going to jail as
a kid has strong negative effects on a childs chance to get
an education: youth that went to prison were 39 percentage
points less likely to finish high school than other kids who from
the same neighborhood. Even young offenders who werent
imprisoned were better off; they were thirteen points more
likely to finish high school than their incarcerated peers.
Going to jail also made kids more likely to offend again.
Young offenders who were incarcerated were 67 percent
more likely to be in jail (again) by the age of 25 than similar
young offenders who didnt go to prison. Moreover, a similar
pattern held true for serious crimes. Aizer and Doyle found
that incarcerated youth were more likely to commit
homicide, violent crime, property crime and drug crimes
than those that didnt serve time.

2008

2009

2010

2011

2012

15,814

14,607

14,646

14,057

13,077

Race/Ethnicity of Juvenile Probation Offenders (2012)

Black 41%
Hispanic 13%
White 44%
Other 2%
Juvenile Caseload Offense Type (2012)
Person 43%
Property 43%
Drug 11%
Traffic 3%
Age of Juvenile Probation Offenders (2012)
12 and under 4%
13 7%
14 13%
15 20%
16 27%
17 and over 29%
Termination Outcomes for Juvenile Offenders (2012)
Successful 71%
Revoked (Technical) 2%
Revoked (New Offense) 3%
Alternate DJJ 1%
Unsatisfactory 23%

12

Juvenile caseload includes probation, supervision, continuance under supervision, informal, and other.

18 | Juvenile Justice in Illinois: A Data Snapshot

Other Relevant Data

Measure of America recently released a report13 that ranks
the 25 most populous U.S. metro areas by the share of young
adults between the ages of 16 and 24 who are neither
working nor in school.
More than one in every seven young people in America
5.8 million teens and young adults between the ages of
16 and 24 is unemployed and not enrolled in school
(Burd-Sharps & Lewis, 2013).
Some of the findings specific to the Chicago metro area
are as follows:
[Please note that the Chicago metro area includes: Cook,
DeKalb, DuPage, Grundy, Kane, Kendall, McHenry, Will,
and Lake Counties in Illinois; Jasper, Lake, Newton, and
Porter Counties in Indiana; and Kenosha County
in Wisconsin.]
The rate of youth disconnection in Chicago is
14.1 percent, ranking 9th best among the 25 most
populated cities. Thats a total of 166,047 young people.
In Chicago, 24.9% of African American youth 16 to 24
are disconnected14 while 15.6% of Latino youth and
9.2% of white youth are.

Chicago registers a 15.7 percentage point gap between

whites and African Americans, the third-largest gap among
all of the cities.
In Chicago, Lakeview and Lincoln Park have a youth
disconnection rate of 2.9%, compared to South Lawndale
and the Lower West Side with a rate of 33.2%.
In Chicago, youth disconnection rates among the major
racial and ethnic groups differ considerably from national
averages. Both Latinos and whites in Chicago are more
likely to have positive outcomes in terms of youth
connection than their national counterparts. On the
other hand, African Americans in Chicago have worse
outcomes than African Americans nationally. Chicago
African Americans have the third highest rate of
disconnection after Detroit and Philadelphia. One in four
African Americans is disconnected, more than two and
a half times higher than the rate of their white neighbors.
Latinos are at the other end of the spectrum. Only San
Francisco and Washington, DC have better outcomes for
Latinos. As a result of these extremes, Chicago has one
of the highest gaps by race and ethnicity. Nearly sixteen
percentage points separate African Americans and whites,
the third highest gap after New York and Philadelphia.

Halve the Gap by 2030: Youth Disconnection in Americas Cities by Sarah Burd-Sharps and Kristen Lewis. http://www.measureofamerica.org/halve-the-gap-2030/
Disconnected youth are people between the ages of 16 and 24 who are neither in school nor working. Young people in this age range who are working or in school part-time or who are in the
military are not considered disconnected. Youth disconnection rates in this report are calculated by Measure of America using employment and enrollment data from the 2011 American
Community Survey (ACS) of the US Census Bureau.
13
13

19 | Juvenile Justice in Illinois: A Data Snapshot

Acknowledgements:
I am indebted to Chris Bernard, Sharlyn Grace, Erica Hughes, Rebecca Skorek and Jennifer Welch for their help in securing some
of the data for this report. Thanks also to Julian Ignacio, Sean Lewis and Sarah Jane Rhee for their help.
Thanks also to Kanako Ishida of the Juvenile Justice Initiative for providing wonderful maps and feedback to this report.
Special thanks to the Steans Family Foundation for covering the design costs for this report.
This data report is intended to offer a quick overview of juvenile justice in Illinois that is accessible to a broad audience. This is not
a research or analytic report.
This is part of our Chicago Youth Justice Data Project (http://chicagoyouthjustice.com/). For questions about this report, contact
Mariame Kaba, projectnia@hotmail.com.

Project Nia
www.project-nia.org

Cover photo by Richard Ross

The Tools of Restorative Justice

Hon. Sheila M. Murphy1
Michael P. Seng2
Crystal Stewart3
Without forgiveness, theres no future. Archbishop Desmond Tutu

The mission of The John Marshall Law School Restorative Justice Project is to further
the values and principles of restorative justice. Furthering restorative justice means expanding
The John Marshall Law School model to the legal community, including the courts, the legal
profession, and corrections officials; to education institutions, including primary, secondary and
higher systems, both public and private; to faith-based institutions; and to community
organizations.
What exactly is restorative justice?
Restorative justice is an approach to justice that focuses on the needs of victims and
offenders, as well as the involved community. It holds offenders accountable for their actions
and repairs the harm done to the victim and the community.
First and foremost, crimes are acts against persons and relationships. They are acts against
the community that violate the law. By committing a crime, the offender creates an obligation to
the victim and to the community. The offender meets that obligation by taking responsibility for
her actions and undertaking to restore her relationships with the victim and the community. We
need restorative justice to ameliorate the effects of destructive and violent behavior and to
reestablish the relationship of the offender with the community.
In our society, criminal behavior has many causes. It is often prompted by self-centeredness,
greed, and a quest for power. It is exacerbated by ignorance, poverty, racism or classism. These
causes do not excuse the behavior, but they must be addressed in order to ameliorate the
behavior and restore harmony to the community. Persons living in systemic poverty, statistically
tend to have higher incarceration rates, lower education, higher unemployment rates, and they
live in communities riffed by violence (gang violence, domestic violence, etc.) The effect that
poverty and lack of access to resources has upon person is obvious. Poverty does not excuse
criminal behavior, but it helps us to understand it and look for solutions.

1
Retired Judge, Circuit Court of Cook County; Adjunct Professor, The John Marshall Law School.
2
Professor, The John Marshall Law School
3
Third-Year Student, The John Marshall Law School
1

Instead of imprisoning persons who commit crimes and cause harm to others, restorative
justice heals the victim, the perpetrator, and the community. Restorative justice is a community
orientated approach to resolving conflicts and crimes.
Restorative justice is not a new concept. It has been used successfully in many societies
throughout history. It has a long tradition in China, Polynesia, Africa, Ireland, and among Native
Americans. It is now being successfully implemented in the United States and around the world.
One prominent example is the South African Truth and Reconciliation Commission.
The South African Truth and Reconciliation Commission was set up by the Government
of National Unity (the South African government) to provide closure to the horrors of Apartheid.
A register of reconciliation was created and reparations were provided through the South African
Truth and Reconciliation Commission. The register provided South Africans with an
opportunity to express their regrets, frustration, hurt, and anger at the failure of the government
and community in preventing human rights violations. It was also a means to demonstrate their
commitment to reconciliation.
The register has been established in response to a deep wish for reconciliation in the
hearts of many South Africans, people who did not perhaps commit gross violations of
human rights but nevertheless wish to indicate their regret for failures in the past to do
all they could have done to prevent such violations; people who want to demonstrate in
some symbolic way their commitment to a new kind of future in which human rights
abuses will not take place. . . . We know that many South Africans are ready and eager
to turn away from a past history of division and discrimination. Guilt for wrongdoing
needs to be translated into positive commitment to building a better society the
healthiest and most productive form of atonement.
--Mary Burton (TRC Commission)4
The South African Truth and Reconciliation Commission is a model for advocates of
restorative justice.
Restorative justice techniques can completely alter the way one looks at dispute
resolution as shown by the following statement of one of our law students:
I have been working for about a year now in a law office that mainly does criminal
defense work. . . . This class has essentially opened my mind to the various ways of
restoring certain people in the criminal justice system. . . . For example, when I do
research or work with criminal lawyers in my office, I consistently find myself thinking
about restorative justice, and how it could possibly be applied to a specific client. Along
with this, I have voiced my opinion to the lawyers about possibly implementing this

4
http://www.justice.gov. za/trc/.
2

concept with a particular client. . . . Most of the lawyers have not had any dealing with
restorative justice so I have actually had a chance to explain it to them and describe what
it is all about. . . . The lawyers were very open and receptive to the concept of restorative
justice to practicing lawyers. I was not only able to explain the concept of restorative
justice to practicing lawyers, but also able to convince them that this was a noble and
gallant way to possibly approach punishment in certain cases. . . . This has been the first
in my law career in which I truly feel zealous about . . . .
How does restorative justice work? Restorative justice is a flexible concept. A number
of tools are traditionally used to implement restorative justice, but each situation must be
examined anew to determine the needs of the situation. Any technique or combination of
techniques can be utilized if it brings about peace and restores relationships. Most of us will
never have the opportunity to implement a commission that hears peoples testimonies and offers
them amnesty when they come forth with a full account of their actions as was used in South
Africa. But there are other tools available that may be effective on a more modest scale.
Restorative Chats
Perhaps the easiest technique to implement is the restorative chat. The restorative chat
can be tailored to the persons and the circumstances and may be an effective step in resolving a
conflict in an informal manner. A restorative chat is essentially a conversation among
participants (in schools typically among involved students and an administrator or a third party)
about incidents that are not very serious but need to be addressed. As with any restorative
technique, advance planning is crucial.
Sometimes it is most effective to have separate chats with each of the parties and then to
bring them together when it is clear that something productive will result. In some instances, a
face-to-face meeting with all the participants may be too demanding and could be counterproductive. In that situation, the facilitator carries messages back and forth between the parties
without a direct encounter.
The chat should end with a plan that can be implemented by the participants.
Peer Juries
A peer jury is a restorative justice technique that allows ones peers to make factual
determinations and develop a plan for repairing harm caused by an offender. The peer jurys
structure is similar to a formal legal jury except that the peer jurors are often familiar with the
participants.

Peer juries can cause damage if not used with caution. Peer jurors should not be bullies
who use their power to humiliate or diminish the participants. This can especially be the case if
the jury does not closely reflect the profiles of the participants. To ensure against bias, an
experienced facilitator should be selected prior to the convening of the jury. Procedures should
be agreed to in advance and the facilitator should be careful to see that the rules are followed.
The facilitator ensures that the participants concerns are heard, rules are followed, that fair
decisions are reached, and that there is no bias on the basis of race, gender, class, socioeconomic
status, religion, sexual orientation, or other group membership or prejudicial factors.
As with a restorative chat, a plan should be developed that can be implemented by the
participants. In most cases, the participants should be required to report back to the jury to
assure that the plan is being implemented or to determine if modifications in the plan are
required.
Offenders who have corrected their own behavior are encouraged to become members of
the peer jury. Peer juries must be use cautiously to ensure that they do not become vehicles of
retribution. Some type of appeal process should be available to correct unjust determinations or
plans that are excessive. Peer juries are appealing, especially in school settings, but if not
properly supervised, they can produce exactly the opposite results from what was intended.
Peace Circles
A peace circle is most closely associated with restorative justice and is a very effective
way to resolve disputes and implement change.5 Participants, together with a facilitator, form a
circle to address a conflict that has occurred among the participants or to address behavior
problems.
Peace circles create an atmosphere that brings people together as equals to have honest
exchanges about difficult issues and painful experiences in an atmosphere of respect and concern
for everyone. A peace circle allows everyone to tell their stories. It helps persons understand the
harm resulting from their conduct and how that harm can be repaired or healed. Peace circles
require careful planning and preparation.
A facilitator needs to be named and rules developed with input from the participants. The
importance of the rules should be explained to all the participants before the circle convenes. In
some circles, the rules are written out and placed on the floor in the center of the circle to remind
everyone of their obligations to the circle. Rules insure that everyone is respectful of others and
allow others to speak without intimidation or interruption. Rules should also cover
confidentiality, which is crucial to the success of the circle.

5
See Pranis, The Little Book of Circle Processes (2005).
4

Either the facilitator or the participants should select an appropriate talking piece to
facilitate the discussion and focus attention. The significance of the talking piece should be
explained. A talking piece that has some relationship to the participants or to the matter being
discussed is often helpful in centering the discussion.
The facilitator asks the participants to reflect on a particular incident or topic. Often an
opener that allows the participants to discuss their feelings or backgrounds in a non-threatening
manner starts the process on a good note. As the talking piece is passed around, participants are
free to remain silent and pass the piece to the next person. If possible, the circle should end with
a plan or an understanding that there will be another meeting.
An example of a successful peace circle occurred in an elementary school. The facilitator
explained the rules The participants were then asked if they wanted to add anything to the rules.
Students brought up issues that they felt needed to be addressed. The leader asked the
participants to articulate those things that really made them feel angry. After the discussion, one
of the facilitator demonstrated deep breathing and explained how deep breathing could be used to
relax when one becomes angry. Then the participants shared what they did when they felt angry.
Similarly, the circle might focus on the artistic or intellectual abilities of the participants.
Sometimes asking the participants to make drawings helped draw out their feelings. Giving
participants simulated problems or asking them to role-play can be very effective.
Participants may be more likely to share difficult information if the facilitator first
discloses personal information that she finds embarrassing. In one instance, a facilitator, who
was a law student, told a story that was as emotional to her as it was to the elementary students
who were participants:
I decided it was appropriate to share my story with them since we were on the topic of
gangs. I began by telling them that, not only will consequences result from joining a
gang, but even associating or hanging around with the wrong crowd can have serious
consequences. I told them that I was a victim of a drive by shooting when I was a
teenager and how it impacted my life. I also told them how that incident could have been
avoided.
The impact of this statement was reported by another law student participant:
. . . It was a difficult story for the law student to share. Tears were streaming down her
face and her voice was shaking as she talked about how her friend died, and her other
friend is now permanently disabled. She also stated that she was the lucky one because
she was able to go on with her life, go to college, law school, and have a boyfriend. Her
friends were not so lucky. She also made a point to state that she and her friends thought
it was cool to hang out with gang-members and that she, her friends, and their families

suffered because of it. She showed the students the scar on her leg where she had been
shot. . . .
She told me during our reflection portion of the circle that she rarely talks about it and
never received counseling for it. I commended her for being courageous enough to share
this tragic story with the students and we continued to talk about experiences growing up
in Englewood and Pilsen. It was powerful because the students could relate to the law
student, who is a Mexican American woman and who lives in a dangerous community
where she almost lost her life and now is pursuing a law degree. Wow. You are talking
about overcoming adversity . . . . I will never forget that moment. . . and the students
reactions.
A circle facilitator reported:
.By using peace circles, we indirectly taught the students about building trust in
others and confidence to have a voice. I believe that part of restorative justice requires
building trust between community members to tell the truth and to feel comfortable to
voice their own opinions and concerns. We asked the students not only to share their
problems, but also to come up with solutions to their problems.
Circles are built on confidentiality and if participants believe that anything they say in a
circle can be reported outside the circle, this will have a chilling effect on circle participation.
This was recognized by one of our law students who was facilitating a circle in an
elementary school:
I thought the students demeanor changed when we explained to them that we were not
teachers, but students like them. One law student did a great job of explaining the
significance of that to them. Since we werent teachers, she told them, we couldnt give
them detention. Although many of the children giggled when she said this, it was clear
that this put them at ease.
Of course, one of the rules of the circle is that no participant should intentionally say
anything to demean or insult another member of the circle. Racist, sexist, or other comments
when used to insult others in the circle are not appropriate in a circle setting. One of the
purposes of the circle is to restore victims, and this is not accomplished if insensitive remarks are
made in the course of the discussion. Consequently, one of the chief functions of the facilitator
is to prepare the participants for the encounter and to halt the circle process if it becomes
destructive of the purposes of the process.
This immediately raises the concern of governmental reporting requirements. Most states
have mandatory reporting laws that apply to medical care personnel and educations and
sometimes to others similarly situated. Mandatory reporters are required to report instances of
6

sex abuse or neglect of minors and other vulnerable persons. Under new requirements of the
rules of professional responsibility and other statutes, lawyers may be required to report certain
information that comes to their attention. Whether mandatory reporters participate in a circle can
be a sensitive determination.
Even if someone is not a mandatory reporter or if the matter is not covered by a particular
statute or regulation, serious ethical or moral concerns can arise. These concerns should be made
known to circle participants in advance. One can easily appreciate the dilemma of circle
participants who learn that someone has a serious mental problem and could be dangerous to
themselves or to others or who learn that an act of violence is likely to occur and they could
prevent it. To the authors knowledge, no state law or privilege protects circle participants from
civil or criminal liability if they have a legal duty to disclose the information and do not do so.
Other Restorative Tools
Other techniques that have been used successfully in restorative justice sessions are art or
music therapy, breathing exercises, yoga, and acupuncture. Any type of group exercise where
people interact with each other over time, such as simulated actions or role playing, can also be
effective.
It was good to see the group growing and becoming more comfortable with trying new
things. For example, the breathing exercise was something new to all of them, but they
were all excited to try it. Similarly, the role-playing activity dramatically changed the
group dynamic, and gave the students a chance to be front-and-center.
Because many offenders and victims have abuse problems, twelve-step inspired activities
can be useful.
Restorative justice can be used everywhere and can be implemented in a variety of ways.
The aim is restoration of the community. By focusing on community, the individual is
transformed and finds self-fulfillment. Ultimately, sensitivity to individual and group interests
along with the exercise of good judgment governs what works effectively.

CPS Behavior Data

Suspensions3

Misconducts2

School Year1

20th Day
Enrollment

# of Misconducts

# of Group 1-2
4

In School Suspensions

Out of School Suspensions

(ISS)

(OSS)

(includes ISS & OSS)

# of Group 3-4
5

Misconducts

Misconducts

% of
# of Group 5-6
Misconducts
7
# of Suspensions Resulting in a
6
Misconducts
Suspension
10,228
101,544
77.0%
12,608
104,876
77.9%
4,879
43,978
74.2%

# of ISS

% of
Misconducts
Resulting in ISS

ISS per 100

Students

Average Length
of ISS

# of OSS

% of
Misconducts
Resulting in OSS

OSS per 100

Students

Average Length
of OSS

34,026
37,278
19,796

25.8%
27.7%
33.4%

8.42
9.24
4.94

1.39
1.36
1.24

67,521
69,879
25,253

51.2%
51.9%
42.6%

16.71
17.32
6.30

2.88
2.48
2.47

District-wide

SY11-12
SY12-13
SY13-14 Sem 1

404,151
403,461
400,545

131,860
134,669
59,279

55,979
49,020
26,379

65,653
73,041
28,021

Male

SY11-12
SY12-13
SY13-14 Sem 1

203,429
202,943
201,507

84,976
89,206
39,743

34,616
32,101
17,347

43,044
48,124
18,944

7,316
8,981
3,452

65,430
68,681
29,427

77.0%
77.0%
74.0%

21,274
24,024
12,982

25.0%
26.9%
32.7%

10.46
11.84
6.44

44,157
46,155
17,185

52.0%
51.7%
43.2%

21.71
22.74
8.53

Female

SY11-12
SY12-13
SY13-14 Sem 1

200,722
200,518
199,038

46,884
45,463
19,536

21,363
16,919
9,032

22,609
24,917
9,077

2,912
3,627
1,427

36,114
36,195
14,551

77.0%
79.6%
74.5%

12,752
13,254
6,814

27.2%
29.2%
34.9%

6.35
6.61
3.42

23,364
23,724
8,068

49.8%
52.2%
41.3%

11.64
11.83
4.05

Students with IEPs

SY11-12
SY12-13
SY13-14 Sem 1

49,419
49,560
50,469

31,974
33,226
14,851

12,588
11,596
6,212

16,494
18,185
7,267

2,892
3,445
1,372

24,248
24,796
10,792

75.8%
74.6%
72.7%

8,277
9,112
4,816

25.9%
27.4%
32.4%

16.75
18.39
9.54

15,971
16,420
6,349

49.9%
49.4%
42.8%

32.32
33.13
12.58

SY11-12
English Language Learners SY12-13
SY13-14 Sem 1

63,895
65,142
66,665

5,518
6,640
3,803

2,471
2,733
2,097

2,681
3,380
1,498

366
527
208

4,036
4,442
2,582

73.1%
66.9%
67.9%

1,659
1,641
1,499

30.1%
24.7%
39.4%

2.60
2.52
2.25

2,377
2,893
1,121

43.1%
43.6%
29.5%

3.72
4.44
1.68

White

SY11-12
SY12-13
SY13-14 Sem 1

35,528
36,415
36,890

5,436
4,643
1,709

2,712
1,911
767

2,395
2,400
792

329
332
150

3,293
3,003
1,055

60.6%
64.7%
61.7%

1,246
1,263
518

22.9%
27.2%
30.3%

3.51
3.47
1.40

2,047
1,777
554

37.7%
38.3%
32.4%

5.76
4.88
1.50

African American

SY11-12
SY12-13
SY13-14 Sem 1

168,020
163,595
159,134

85,454
93,939
39,713

32,194
31,816
16,065

46,120
53,012
20,131

7,140
9,111
3,517

70,860
76,997
30,548

82.9%
82.0%
76.9%

21,107
26,180
12,270

24.7%
27.9%
30.9%

12.56
16.00
7.71

49,756
52,534
19,066

58.2%
55.9%
48.0%

29.61
32.11
11.98

1,427
1,409
1,277

340
300
156

143
129
94

172
144
53

25
27
9

215
220
119

63.2%
73.3%
76.3%

83
85
75

24.4%
28.3%
48.1%

5.82
6.03
5.87

132
139
47

38.8%
46.3%
30.1%

9.25
9.87
3.68

SY11-12
Native American/Alaskan SY12-13
SY13-14 Sem 1

CPS Behavior Data

Suspensions3

Misconducts2

School Year1

20th Day
Enrollment

# of Misconducts

# of Group 1-2
4

In School Suspensions

Out of School Suspensions

(ISS)

(OSS)

(includes ISS & OSS)

# of Group 3-4
5

Misconducts

Misconducts

% of
# of Group 5-6
Misconducts
7
# of Suspensions Resulting in a
6
Misconducts
Suspension
0
0
0.0%
0
0
0.0%
0
0
0.0%

# of ISS

% of
Misconducts
Resulting in ISS

ISS per 100

Students

# of OSS

% of
Misconducts
Resulting in OSS

OSS per 100

Students

0
0
0

0.0%
0.0%
0.0%

0.00
0.00
0.00

0
0
0

0.0%
0.0%
0.0%

0.00
0.00
0.00

Average Length
of ISS

District-wide Islander8
Asian/Pacific

SY11-12
SY12-13
SY13-14 Sem 1

142
111
53

0
0
0

0
0
0

0
0
0

Hispanic

SY11-12
SY12-13
SY13-14 Sem 1

178,284
180,274
181,169

38,649
34,046
16,922

20,103
14,501
9,080

15,946
16,542
6,698

2,600
3,003
1,144

25,737
23,496
11,758

66.6%
69.0%
69.5%

10,985
9,311
6,668

28.4%
27.3%
39.4%

6.16
5.16
3.68

14,752
14,695
5,343

38.2%
43.2%
31.6%

8.27
8.15
2.95

Multiracial

SY11-12
SY12-13
SY13-14 Sem 1

4,390
4,310
4,223

1,185
936
377

528
354
162

563
497
187

94
85
28

887
627
242

74.9%
67.0%
64.2%

394
214
115

33.2%
22.9%
30.5%

8.97
4.97
2.72

493
420
134

41.6%
44.9%
35.5%

11.23
9.74
3.17

Asian

SY11-12
SY12-13
SY13-14 Sem 1

13,270
13,581
13,924

703
680
347

266
272
185

408
369
136

29
39
26

479
440
215

68.1%
64.7%
62.0%

199
206
129

28.3%
30.3%
37.2%

1.50
1.52
0.93

280
238
88

39.8%
35.0%
25.4%

2.11
1.75
0.63

476
530
587

57
57
15

18
23
6

28
32
7

11
2
2

43
40
10

75.4%
70.2%
66.7%

9
11
7

15.8%
19.3%
46.7%

1.89
2.08
1.19

34
30
3

59.6%
52.6%
20.0%

7.14
5.66
0.51

2,614
3,236
3,288

36
68
40

15
14
20

21
45
17

0
9
3

30
53
31

83.3%
77.9%
77.5%

3
8
14

8.3%
11.8%
35.0%

0.11
0.25
0.43

27
46
18

75.0%
67.6%
45.0%

1.03
1.42
0.55

SY11-12
Hawaiian/Pacific Islander SY12-13
SY13-14 Sem 1
Race Not Available

SY11-12
SY12-13
SY13-14 Sem 1

Average Length
of OSS

SY11-12 & SY12-13 display data for the full school year. SY13-14 displays data through Semester 1. Note: SY13-14 data is subject to change.
Schools are able to apply both an in school and out of school suspension to one misconduct event. In those cases, the suspension is only counted once.

2
3

All CPS schools should document and track all misconducts that arise to the level of an Office Disciplinary Referral and are Student Code of Conduct infractions. The # of Misconducts displayed here represents all Student Code of Conduct infractions that have been reported through IMPACT Verify each school year.

Group 1-2 Example: Leaving class without permission

Group 3-4 Example: Fighting

Group 5-6 Example: Gang activity

Schools are able to apply both an in school and out of school suspension to one misconduct event. In those cases, the suspension is only counted once.
This category was retired.
Note: Expulsions data includes all district-managed and charter schools; Suspensions data includes only district-managed schools and charter schools that follow the CPS Student Code of Conduct. The nine Charter schools following the CPS Student Code of Conduct are Academy for Global Citizenship, ASPIRA, CVCS, Frazier, Instituto Justice, Intrinsic, Legacy, N
Prologue Joshua Johnston.
8

Expulsions
(represents unique students expelled)

# of Students
Expelled

Expulsions per 100

Students

547
489
203

0.14
0.12
0.05

413
344
142

0.20
0.17
0.07

134
145
61

0.07
0.07
0.03

112
108
39

0.23
0.22
0.08

14
7
7

0.02
0.01
0.01

2
3
4

0.01
0.01
0.01

451
405
159

0.27
0.25
0.10

1
0
0

0.07
0.00
0.00

Expulsions
(represents unique students expelled)

# of Students
Expelled

Expulsions per 100

Students

0
0
0

0.00
0.00
0.00

89
74
39

0.05
0.04
0.02

3
3
0

0.07
0.07
0.00

0
0
1

0.00
0.00
0.01

1
0
0

0.21
0.00
0.00

0
4
0

0.00
0.12
0.00

Instituto Justice, Intrinsic, Legacy, Namaste and

Surveillance Self-Defense for Legal Workers and Lawyers

Legal workers and lawyers handle extremely sensitive information on a regular basis, whether
doing policy work, activism, criminal defense, legal support for protestors, or other legal work.
Lawyers are also legally and ethically responsible for protecting attorney-client information. Fear
about surveillance and insecure communications chills organizing and legal support. This
workshop will provide a framework of these issues and practical skills to address them. We will
cover specific technologies such as email encryption, secure text messaging, and password
managers to provide concrete skills participants can use in their own work.
This CLE will give background information and tools to address surveillance and data security and
how it relates to client and activist relationships. After a brief introduction, the presenters will walk
the audience through a participatory threat modeling exercise to determine what sorts of sensitive
information legal work entails and what the consequences of bad security are. Then the presenters
will go over specific tools (many of them free and open-source) that lawyers and legal workers can
use.
Presenters:
Nadia Kayyali, Electronic Frontier Foundation Activist, NLGSF Bay area board member
Mark Burdett, Electronic Frontier Foundation
Rabya Khan, Chicago office of the Council on American-Islamic Relations
Nadia Kayyali is a member of EFFs activism team. Nadia is particularly interested in surveillance,
national security policy, and the intersection of criminal justice, racial justice, and digital civil
liberties issues. She has been an activist since she was a teenager, when she participated in the
World Trade Organization protests in Seattle.
Her recent activism has focused on addressing the racial profiling of the Arab, Muslim, Middle
Eastern, and South Asian community, particularly through curtailing the collaboration of local and
federal law enforcement. She has also provided legal support for demonstrators through the
National Lawyers Guild and Occupylegal.
Nadia previously served as the 2012 Bill of Rights Defense Committee Legal Fellow where she
worked with grassroots groups to restrict the reach of overbroad national security policies. She
earned her B.A. from UC Berkeley, where she majored in Cultural Anthropology and minored in
Public Policy. She received her J.D. from UC Hastings, where she served as Community Outreach
Editor for the Hastings Race and Poverty Law Journal and the Student National Vice-President for
the National Lawyers Guild. During law school she interned at the ACLU of Northern California
and Bay Area Legal Aid.
Nadia currently serves on the board of the National Lawyers Guild S.F. Bay Area chapter. She also
volunteers at the San Francisco Tenants Union, where she empowers tenants to assert their rights
with landlords and fight displacement.
Mark Burdett is Technology Operations Director at the Electronic Frontier Foundation. He leads
the team of technologists who develop websites, tech infrastructure and online activism tools for
other teams at EFF.

Before joining EFF, Mark co-founded a worker-owned technology cooperative, and worked with
VozMob, a mobile blogging platform designed by day laborers and domestic workers to tell their
stories online using cheap mobile phones, and Indymedia, a global network of open-publishing
news sites. Mark also builds neighborhood wireless networks, jaywalks avidly and raises ducks in
Oakland, California.
Rabya Khan is a Staff Attorney at CAIR-Chicago. Rabya received her bachelors degree in Political
Science from the College at the University of Chicago, and her Juris Doctorate from DePaul
College of Law. Rabya is a former volunteer attorney with CAIR-Chicago. Rabya is excited for the
opportunity to work on promoting social justice and protecting civil rights.

SURVEILLANCE SELF-DEFENSE TRAINING: HOW TO GUIDES AND MORE

INFORMATION
DISCLAIMER:
1. NOTHING HERE IS LEGAL ADVICE
2. WE DO NOT GUARANTEE THESE TOOLS- THERE ARE MANY DIFFERENT
OPINIONS ABOUT THE VARIOUS TOOLS OUT THERE!
3. SOME OF THESE GUIDES WILL BE UPDATED SOON. WE WILL LET YOU KNOW IF
ANYTHING IS OUT OF DATE AND WHERE YOU CAN GO TO GET MORE
INFORMATION.
4. BOTTOM LINE- NOTHING CAN COMPLETELY GUARANTEE YOUR
SAFETY/PRIVACY

I.

ENCRYPTION OVERVIEW

Encryption is the mathematical science of codes, ciphers, and secret messages. Through history,
people have used encryption to send messages to each other that (hopefully) couldn't be read by
anyone besides the intended recipient.
Today, we have computers that are capable of performing encryption for us. Digital encryption
technology has expanded beyond simple secret messages; today, encryption can be used for
more elaborate purposes, for example to verify the author of messages or to browse the Web
anonymously with Tor (which we discuss in later detail).
Under some circumstances, encryption can be fairly automatic and simple. But there are ways
encryption can go wrong, and the more you understand it, the safer you will be against such
situations.

Three concepts to understand in encryption

1. Private and public keys

One of the most important concepts to understand in encryption is a key. Common types of
encryption include a private key, which is kept secret on your computer and lets you read
messages that are intended only for you. A private key also lets you place unforgeable digital
signatures on messages you send to other people. A public key is a file that you can give to
others or publish that allows people to communicate with you in secret, and/or check signatures
from you. Private and public keys come in matched pairs, like the halves of a rock that has been
split into two perfectly matching pieces, but they are not the same.

2. Security certificates

Another extremely valuable concept to understand is a security certificate. The Web browser
on your computer can make encrypted connections to sites using HTTPS. When they do that,
they examine certificates to check the public keys of domain nameslike www.google.com.
Certificates are one way of trying to determine if you know the right public key for a person or
website, so that you can communicate securely with them. The Web browser on your computer
can make encrypted connections to sites using HTTPS. When they do that, they examine

certificates to check the public keys of domain names (like www.google.com,

www.amazon.com, or ssd.eff.orgsexworker.ssd.howtos.docx).
From time to time, you will see certificate-related error messages on the Web. Most commonly,
this is because a hotel or cafe network is trying to break your secret communications with the
website. It is also common to see an error because of a bureaucratic mistake in the system of
certificates. But occasionally, it is because a hacker, thief, police agency, or spy agency is
breaking the encrypted connection.
Unfortunately, it is extremely difficult to tell the difference between these cases. This means you
should never click past a certificate warning if it relates to a site where you have an account, or
are reading any sensitive information.

3. Key Fingerprints
The word "fingerprint" means lots of different things in the field of computer security. One use
of the term is a "key fingerprint", a string of characters like "342e 2309 bd20 0912 ff10 6c63
2192 1928" that should allow you to uniquely and securely check that someone on the Internet is
using the right private key. If you check that someone's key fingerprint is correct, that gives you
a higher degree of certainty that it's really them. But it's not perfect, because if the keys are
copied or stolen someone else would be able to use the same fingerprint.

II.

ENCRYPTION FOR EMAIL: AN OVERVIEW (NOT A HOW -TO)

PGP stands for Pretty Good Privacy. It's actually very good privacy. If used correctly, it can
protect the contents of your messages, text, and even files from being understood even by well-
funded government surveillance programs. When Edward Snowden says encryption works,
it's PGP and its related software that he is talking about.

Unfortunately, PGP is also pretty bad at being easy to understand, or use. The strong encryption
that PGP usespublic key encryptionis ingenious, but hard to wrap your head around. PGP
software itself has been around since 1991, which makes it the same vintage as the early
versions of Microsoft Windows, and its appearance hasn't changed much since then.

The good news is that there are many programs available now which can hide the ancient design
of PGP and make it somewhat easier to use, especially when it comes to encrypting and
authenticating emailthe main use of PGP. We cant go in to the details of these programs in
such a limited amount of time, but when the EFF Surveillance Self Defense site is updated it will
include that information. In the meantime, you can check out this handy explainer about how to
use Thunderbird, Enigmail, and GPG (a complete and free implementation of the OpenPGP ) to
start using encrypted email: https://securityinabox.org/en/thunderbird_main.

Before you play around with PGP or other programs that use it, though, it's worth spending a few
minutes understanding the basics of public key encryption: what it can do for you, what it can't
do, and when you should use it.

A Tale of Two Keys

When we use encryption to fight surveillance, here's what we're trying to do:
We take a clearly readable message like hello mum. We encrypt that into a coded message that
is incomprehensible to anyone looking at it (OhsieW5ge+osh1aehah6, say). We send that
encrypted message over the Internet, where it can be read by lots of people, but hopefully not
understood by any of them. Then, when it arrives at its destination, our intended recipient, and
only our intended recipient, has some way of decrypting it back into the original message.

How does our recipient know how to decode the message, when nobody else can? It must be
because they know some extra information that nobody else knows. Let's call this the decoding
key, because it unlocks the message inside the code.

How does the recipient know this key? Mostly, it's because the sender has previously told them
the key, whether it's try holding the message up in a mirror or take each letter and convert it
to the next letter in the alphabet. There's a problem with this strategy though. If you're worried
about being spied upon when you send your coded message, how do you send the recipient the
key without someone spying on that conversation too? There's no point sending an ingeniously
encrypted message if your attacker already knows the key to decoding it. And if you have a secret
way to send decoding keys, why don't you just use that for all your secret messages?

Public key cryptography has a neat solution for this. Each person in a conversation has a way of
creating two keys. One is their private key, which they keep to themselves and never let anyone
else know. The other is a public key, which they hand out to anyone who wants to communicate
with them. It doesn't matter who can see the public key. You can put it online where everyone
can see it.

The public key and private key are connected. If you encode something using the public key, then
someone else can decode it with its matching private key.

Let's see how that might work. You want to send a secret message to Aarav. Aarav has a private
key, but like a good public key encryption user, he has put its connected public key on his web
page. You download the public key, encrypt the message using it, and send it to him. He can
decode it, because he has the corresponding private key but nobody else can.
Sign of the times
Public key cryptography gets rid of the problem of smuggling the decoding key to the person you
want to send a message to, because that person already has the key. You just need to get hold of
the matching public, encoding key, which the recipient can hand out to everyone, including spies.
Because it's only useful for encoding a message, it is useless for anyone trying to decode the
message.

But there's more! If you encode a message with a certain public key, it can only be decoded by
the matching private key. But the opposite is also true. If you encode a message with a certain
private key, it can only be decoded by its matching public key.

Why would this be useful? At first glance, there doesn't seem to be any advantage to making a

secret message with your private key that everyone in the world (or at least, everyone who has
your public key) can crack. But suppose I wrote a message that said I promise to pay Aazul
$100, and then turned it into a secret message using my private key. Anyone could decode that
messagebut only one person could have written it: the person who has my private key. If I've
done a good job keeping my private key safe, that means me, and only me. In effect, by encoding
it with my private key, I've made sure that it could only have come from me. In other words, I've
done the same thing with this digital message as we do when we sign a message in the real
world.

Signing also makes messages tamper proof. If someone tried to change that I promise to pay
Aazul $100 into I promise to pay Bob $100, they would not be able to re-sign it using my
private key. So a signed message is guaranteed to originate from a certain source, and not be
messed with in transit
.
So public key cryptography lets you encrypt and send messages safely to anyone whose public
key you know. If others know your public key, they can send you messages, which only you can
decode. And if people know your public key, you can sign messages so that those people will
know they could only have come from you. And if you know someone else's public key, you can
decode a message signed by them, and know that it only came from them.

It should be clear by now that public key cryptography becomes more useful, the more people
know your public key. It should also be apparent that you need to keep your private key very
safe.
How PGP works
Pretty Good Privacy is mostly concerned with the minutiae of creating and using public and
private keys. You can create a public/private key pair with it, protect the private key with a
password, and use it and your public key to sign and encrypt text. It will also let you download
other people's public keys, and upload your public keys to public key servers, which are
repositories where other people can find your key. See our guides to installing PGP-compatible
software in your email software.
Advanced PGP: The Web of Trust
If you're in training to be an NSA agent, you may have spotted a potential flaw in how public key
cryptography works. Suppose I started distributing a public key that I say belongs to Barack
Obama. If people believed me, they might start sending secret messages to Barack, encrypted
using the key. Or they might believe anything signed with that key is a sworn statement of
Barack.
How do we prove that a certain key really does belong to a certain person? One way is to get the
key from them directly, but that's not much better than our original challenge of getting a secret
key without someone spotting us. Still, people do exchange public keys when they meet, privately
and at public cryptoparties.
PGP has a slightly better solution called the web of trust. In the web of trust, if I believe a key
belongs to a certain person, I can sign that key, and then upload the key (and the signature) to

the public key servers. Roughly speaking, the more people who I trust that have signed a key, the
more likely it is that I will believe that key really belongs to who it claims.
PGP lets you sign other people's keys, and also lets you trust other signers, so that if they sign a
key, you will automatically believe that key is valid.
Metadata: What PGP Can't Do
PGP is all about making sure the contents of a message are secret, genuine, and untampered with.
But that's not the only privacy concern you might have. As we've noted, information about your
messages can be as revealing as their contents (See metadata). If you're exchanging PGP
messages with a known dissident in your country, you may be in danger for simply
communicating with them, even without those messages being decoded. Indeed, in some
countries you can face imprisonment simply for refusing to decode encrypted messages.
PGP does nothing to disguise who you are talking to, or that you are using PGP to do so. Indeed, if
you upload your public key onto the keyservers, or sign other people's keys, you're effectively
showing the world what key is yours, and who you know.
You don't have to do that. You can keep your PGP public key quiet, and only give it to people you
feel safe with, and tell them not to upload it to the public keyservers. You don't need to attach
your name to a key.
Disguising that you are communicating with a particular person is more difficult. One way to do
this is for both of you to use anonymous email accounts, and access them using Tor (which we
discuss below). If you do this, PGP will still be useful, both for keeping your email messages
private from others, and proving to each other that the messages have not been tampered with.

III.HOW TO USE TEXTSECURE (ANDROID)
TextSecure is a messaging app for Android devices that allows users to send confidential
messages easily using their mobile phone. An iOS version is in the works but has not been
released.

Download: https://whispersystems.org/; can also be downloaded from the Google Play store
System requirements: Android 2.3 and up
Version used in this guide: TextSecure 2.0.6
License: GPLv3
Other reading: https://github.com/WhisperSystems/TextSecure/wiki/Using-TextSecure;
https://securityinabox.org/en/textsecure_main

TextSecure is a messaging app that allows users to send confidential messages with their mobile
phone using end-to-end encryption. The app works over a Wi-Fi or data connection, but can
also be used to send SMS if such a connection is unavailable.


TextSecure can be used to send SMS to non-users, however, those
messages will not be encrypted in transit; however, if you have
set up a passphrase for your device, the messages will be
encrypted locally.

TextSecure is available in more than 30 languages. You can
change the language of the app by selecting Settings then
Language.
How to install TextSecure
Step 1: Download and install TextSecure
On your Android phone, enter the Google Play store and search
for TextSecure. Select the app, TextSecure Private Messenger.

Select Install and accept the Terms of Service by selecting
Accept. The app will download and install automatically.

Step 2: Create a passphrase
to encrypt data locally
Open the app. You will be
prompted to create a
passphrase in order to locally
encrypt your data. This means
that your data will be
encrypted in transit, and that
your messages will also be
encrypted locally on your
phone. If you choose to skip
this step, your messages will
still be encrypted in transit, but
will not be protected on your
device. For more information
on selecting a strong
passphrase, see our module on
passwords.

Step 3 (optional): Import existing text messages

You will then be asked if you would like to import your existing text messages into TextSecures
encrypted database. This is up to you: It simply means that old text messages (SMS) will be
imported into the TextSecure app and encrypted.

Step 4 (optional): Register your phone with TextSecure
The next screen will prompt you to Connect with TextSecure by registering your mobile phone
number with TextSecure. This will allow you to avoid SMS charges in some cases when
communicating with other TextSecure users. This is an optional step. Once you have registered
your phone, TextSecure will automatically verify your number using a text message.

Note on Verifying Keys: TextSecure uses end-to-end encryption. When you first send a
message to another contact that uses the app, the app will initiate a key exchange message with
the other user.

You will want to verify keys with the other user (for more information, view the module on key
verification). To view the keys, click on the padlock icon in the top right of the screen and select
Verify Identity. You will be shown two sets of keys: one belonging to you and one belonging to
the other user.

TextSecure supports manual verification or verification by scanning the other users barcode.
If you are in the same room as the other person, you can easily scan the barcode on their phone
or read your keys aloud to one another.
If you are not in the same room, there are different ways to verify keys with varying degrees of
trustworthiness. For example, you can read your keys aloud to one another on the phone if you
recognize one anothers voices or send them using another verified method of communication
such as PGP or OTR.

IV. HOW TO USE REDPHONE (ANDROID)

RedPhone is an app that allows you to make encrypted phone calls, using your existing phone
number, over a Wi-Fi or data connection.
https://whispersystems.org/ ; can also be downloaded from the Google Play store
[https://play.google.com/store/apps/details?id=org.thoughtcrime.redphone]
System requirements: Android 2.2 and up
Version used in this guide: RedPhone 0.9.6
License: GPLv3
Level: Beginner
Time required: 15 minutes

RedPhone is a mobile app for Android that allows users to make encrypted voice calls over a Wi-
Fi or data connection using their normal phone number. RedPhone only encrypts calls that are
between two RedPhone users.
You can choose to make calls to other RedPhone users from inside the app, or you can call
someone using your phones default system dialer, and RedPhone will automatically prompt you
with an option to upgrade to an encrypted call. You can also choose to make calls to other
RedPhone users from inside the app.

How to install RedPhone

Step 1: Download and install RedPhone

On your Android phone, enter the Google Play store and search for
RedPhone. Select the app, RedPhone :: Secure Calls.
Select Install and accept the Terms of Service by selecting Accept. The
app will download and install automatically.

Step 2: Register your mobile

Once you have installed the app, open it; you will
automatically be prompted to register your mobile number.

Once you have registered your mobile number, RedPhone
will send you an SMS code to verify that the number belongs
to you. Type in the code when prompted by the app. You
have now successfully installed RedPhone and are ready to
make encrypted calls!

Using RedPhone

In order to use RedPhone, the person that you are

calling must also have RedPhone installed. If you try
to call someone using the RedPhone app and they do
not have it installed, the app will ask if you would like
to invite them to use RedPhone via SMS, but it will not
allow you to complete your call from inside the app.








When you make a call to another RedPhone user (from either
your default system dialer or from inside the app), you will be
given a random pair of words. This word pair will allow you to
verify your identity and keys with the other useralso known
as key verification.

The trustworthiest way to verify the identity of a caller is to use
out-of-band authentication to verify the word pair. You can
also read the words aloud if you recognize the callers voice,
although very sophisticated attackers might be able to defeat
this if they needed to. The word pair must be identical.
You now know how to make an encrypted call using RedPhone!

V. OFF THE RECORD CHATS (FOR MAC AND OTHER SYSTEMS)

A. HOW TO USE OTR FOR MAC W ITH ADIUM

OTR (Off-the-record) is a protocol that allows users of instant messaging or chat tools to have
conversations that are confidential.
https://adium.im/
System requirements (Adium 1.5 or later): Mac OS X 10.6.8 or newer, an Apple-branded
Macintosh computer.
Version used in this guide: Adium 1.5.9

License: GNU GPL

Other reading: https://pressfreedomfoundation.org/encryption-works

Adium is a free and open source instant messaging client for OS X that allows you to chat with
individuals across multiple chat protocols, including Google Talk, Yahoo! Messenger, Facebook
chat, Windows Live Messenger, AIM, ICQ, and XMPP.
OTR (Off-the-record) is a protocol that allows people to have confidential conversations using
the messaging tools theyre already familiar with. For Mac users, OTR comes built-in with the
Adium client.
OTR employs end-to-end encryption. This means that you can use it to have conversations
over services like Google Talk or Facebook without those companies ever having access to the
contents of the conversations. This is different from the way in which Google
[https://support.google.com/chat/answer/29291?hl=en] and AOL
[http://help.aol.com/help/microsites/microsite.do?cmd=displayKC&docType=kc&externalId=7
2854] use the term off-the-record to mean that a conversation is not being logged; that option
does not encrypt your conversation.
Why should I use Adium + OTR?
When you have a chat conversation using Google Talk or Facebook chat on the Google or
Facebook websites, that chat is encrypted using HTTPS, which means the content of your chat is
protected from hackers and other third parties while its in transit. It is not, however, protected
from Google or Facebook, which have the keys to your conversations and can hand them over to
authorities.
After you have installed Adium, you can sign in to it using multiple accounts at the same time.
For example, you could use Google Talk, Facebook, and XMPP simultaneously. Adium also allows
you to chat using these tools without OTR. Since OTR only works if both people are using it, this
means that even if the other person does not have it installed, you can still chat with them using
Adium.
When should I not use Adium + OTR?
Like Pidgin, the Adium code is quite complex, is written in a hard-to-secure language, and is
likely to be buggy. This means that hackers who spend time on the task can probably use it to
break into computers that are running. It's a great defense against untargeted, dragnet
surveillance but it may not be the best choice if you expect to be the subject of targeted attacks
by well-resourced state actors.
Installing Adium + OTR On Your Mac
Step 1: Install the program
First, go to https://adium.im/ in your browser. Choose Download Adium 1.5.9. The file will
download as a .dmg, or disk image, and will probably be saved to your downloads folder.

Double-click on the file; that will open up a window that looks like this:
Move the Adium icon into the
Applications folder to install the
program. Once the program is
installed, look for it in your
Applications folder and double-click
to open it.

Step 2: Set up your account(s)
First, you will need to decide what
chat tools or protocols you want to
use with Adium. The setup process
is similar, but not identical, for each
type of tool. You will need to know
your account name for each tool or
protocol, as well as your password for each account.
To set up an account, go to the Adium menu at the top of your screen and click Adium and then
Preferences. This will open a window with another menu at the top. Select Accounts, then
click the + sign at the bottom of the window. You will see a menu that looks like this:
Select the program that you wish to sign in to. From here, you will be
prompted either to enter your username and password, or to use
Adiums authorization tool to sign in to your account. Follow Adiums
instructions carefully.

How to Initiate an OTR Chat
Once you have signed in to one or more of your accounts, you can start
using OTR. Remember: In order to have a conversation using OTR,
both people need to be using a chat program that supports OTR.


Step 1: Initiate an OTR chat
First, identify someone who is using OTR, and initiate a conversation
with them in Adium by double-clicking on their name. Once you have opened the chat window,
you will see a small, open lock in the upper left-hand corner of the chat window. Click on the lock
and select Initiate Encrypted OTR Chat.

Step 2: Verify your connection
Once you have initiated the chat and the other person has accepted the invitation, you will see
the lock icon close; this is how you know that your chat is now encrypted (congratulations!)
But wait, theres still another step!

At this time, you have initiated an unverified, encrypted chat. This means that while your
communications are encrypted, you have not yet determined and verified the identity of the
person you are chatting with. Unless you are in the same room and can see each others screens,
it is important that you verify each others identities.
To verify another users identity using Adium, click again on the lock, and select Verify. You
will be shown a window that displays both your key and the key of the other user. Adium only
supports manual fingerprint verification. This means that, using some method, you and the
person with whom your chatting will need to check to make sure that the keys that you are being
shown by Adium match precisely.
The easiest way to do this is to read them aloud to one another in person, but thats not always
possible. There are different ways to accomplish this with varying degrees of trustworthiness.
For example, you can read your keys aloud to one another on the phone if you recognize each
others voices or send them using another verified method of communication such as PGP. Some
people publicize their key on their website, Twitter account, or business card.
The most important thing is that you verify that every single letter and digit matches perfectly.
Step 3: Disable logging
Now that you have initiated an encrypted chat and verified your chat partners identity, theres
one more thing you need to do.
Unfortunately, Adium logs your OTR-
encrypted chats by default, saving them
to your hard drive. This means that,
despite the fact that theyre encrypted,
they are being saved in plain text on
your hard drive.
To disable logging, click Adium in the
menu at the top of your screen, then
Preferences. In the new window,
select General and then disable Log
messages and Log OTR-secured
chats. Your settings should now look
like this:



B. PIDGIN WITH OTR - SECURE INSTANT MESSAGING FOR PCS (FROM SECURITY IN A BOX)
Pidgin can be downloaded here: https://pidgin.im/
To get the complete installation guide, go to
https://securityinabox.org/en/using_pidgin#2.0

Pidgin is a free and open source Instant Messaging (IM) client that lets you organize and
manage your different (IM) accounts through a single interface. Before you can start using
Pidgin you must have an existing IM account, after which you will register that account to
Pidgin. For instance, if you have an email account with Gmail, you can use their IM service
GoogleTalk with Pidgin. The log-in details of your existing IM account are used to register and
access your account through Pidgin.
Note: All users are encouraged to learn as much as possible about the privacy and security
policies of their Instant Messaging Service Provider.
Pidgin supports the following IM services: AIM, Bonjour, Gadu-Gadu, Google Talk,
Groupwise, ICQ, IRC, MIRC, MSN, MXit, MySpaceIM, QQ, SILC, SIMPLE, Sametime, Yahoo!,
Zephyr and any IM clients running the XMPP messaging protocol.
Pidgin does not permit communication between different IM services. For instance, if you are
using Pidgin to access your Google Talk account, you will not be able to chat with a friend using
an ICQ account.
However, Pidgin can be configured to manage multiple accounts based on any of the supported
messaging protocols. That is, you may simultaneously use both Gmail and ICQ accounts, and chat
with correspondents using either of those specific services (which are supported by Pidgin).
Pidgin is strongly recommended for IM sessions, as it offers a greater degree of security than
alternative messaging clients, and does not come bundled with unnecessary adware or spyware
which may compromise your privacy and security.
Off-the-Record (OTR) messaging is a plugin developed specifically for Pidgin. It offers the
following privacy and security features:

Authentication: You are assured the correspondent is who you think it is.

Deniability: After the chat session is finished, messages cannot be identified as

originating from either your correspondent or you.
Encryption: No one else can access and read your instant messages.

Perfect Forward Security: If third party obtains your private keys, no previous
conversations are compromised.

Note: Pidgin must be installed before the OTR plugin.

VI. TOR (FROM SECURITY IN A BOX WEBSITE)

You can download Tor here: https://www.torproject.org/download/download-
easy.html.en
For more, go to https://securityinabox.org/en/tor_main

The Tor Browser Bundle is a software tool designed to increase the privacy and security of
your Internet activities and habits. It masks your identity and your on-line browsing from many
forms of Internet surveillance. Tor can also be useful as a secure means of circumventing
electronic restrictions so that you may access or publish blogs and news reports.
Tor protects your anonymity by routing communications through a distributed network of
servers run by volunteers from all over the world. Using Tor hides the sites you visit from
potential onlookers, and hides your location/identity from those sites. The software is designed
also to make sure servers in the Tor network don't know both your location and the sites you
are visiting.
Tor also takes steps to encrypt the communication to and through its network, but this measure
can not extend all the way to a website which is sending or receiving content over non-encrypted
channels (i.e. not providing https access). Nevertheless, the advantage of using Tor when
accessing such sites is that Tor can secure your communication up to the step between the last of
the Tor servers and the non-secure site. This confines the chance to intercept the content to that
last step.
The Tor Browser Bundle consists of the Tor software and a modified version of the Firefox
web browser, which is designed to provide extra protection while using it. The browser bundle
also includes NoScript and HTTPS-Everywhere add-ons.
Note: There is a trade-off between anonymity and speed. Because Tor facilitates anonymous
browsing by bouncing your traffic through volunteers' computers and servers in various parts of
the world, it will definitely be slower than using other web browsers on your computer.
Definitions:

Bridge Relay: A Bridge Relay is a Tor server that is not publicly announced. If you choose
to use a bridge, the server can provide you with access to the Tor network even if Tor is
blocked in your country.

Port: In this chapter, a port is an access point through which software communicates with
services running on other networked computers. If a URL, such as www.google.com,
gives you the 'street address' of a service, then the port tells you which 'door' to use once
you reach the correct destination. When browsing the Web, you typically use port 80 for
unsecured sites (http://mail.google.com) and port 443 for secured ones
(https://mail.google.com).
Proxy: A proxy is a software intermediary that runs on your computer, on your local
network, or somewhere else on the Internet, that helps to relay your communication
toward its final destination.

Route: A route is the communication path on the Internet between your computer and
the destination server.

The Tor Browser Bundle is a modified version of Firefox that will provide you with all you
need to browse the Internet anonymously. This package requires no installation; it simply has to
be extracted and run.

VII. PASSWORDS
Disclaimer: this is very basic information covering a complex topic. Stay tuned to the SSD website
for a much more in-depth guide on passwords. You can also check out
https://securityinabox.org/en/chapter-3 for more info.
Overview
We all have a lot of passwords we have to remember. Its easy to want to re-use passwords. Dont
do it! Reusing passwords is an exceptionally bad security practice, because if an attacker
gets hold of one password, she will often try using that password on various accounts belonging
to the same person. Also, a given password may be only as secure as the least secure service where
it's been used.
Avoiding password re-use is a valuable security precaution, but you won't be able to remember
all your passwords if each one is different. Fortunately, there are software tools to help with
thisa password manager (also called a password safe) is a software application that helps
store a large number of passwords safely. The password manager protects all of your passwords
with a single master password (or, ideally a passphrase) so you only have to remember one
thing.
Password managers- KeePassX
KeePassX is an open source, free password safe that you keep on your desktop. Its available
here: https://www.keepassx.org/.

KeepassX works with files called password databases, which are exactly what they sound like
files that store a database of all your passwords. These databases are encrypted when theyre
stored on your computers hard disk, so if your computer is off and someone steals it they wont
be able to read your passwords.
Once youve installed KeepassX, go ahead and launch it. Once its started, select New Database
from the File menu. A dialog will pop up which will ask you to enter a master password and/or
use a keyfile. Select the appropriate checkbox(es) based on your choice. Note that if you want to
see the password youre typing in (instead of obscuring it with dots) you can click the button
with the eye to the right.
Once youve successfully initialized your password database, you should save it by choosing
Save Database from the File menu. (Note that if you want, you can move the password database
file later to wherever you like on your hard disk, or move it to other computersyoull still be
able to open it using KeepassX and the password/keyfile you specified before.)
Organizing passwords: KeepassX allows you to organize passwords into Groups, which are
basically just folders. You can create, delete, or edit Groups or Subgroups by going to the Groups
menu in the menubar, or by right-clicking on a Group in the left-hand pane of the KeepassX
window. Grouping passwords doesnt affect any of the functionality of KeepassXits just a
handy organizational tool.

Storing/generating/editing passwords: To create a new password or store a password you

already have, right-click on the Group in which you want to store the password, and choose Add
New Entry (you can also choose Entries > Add New Entry from the menubar). For basic
password usage, do the following:
Enter a descriptive title you can use to recognize this password entry in the Title field.

Enter the username associated with this password entry in the Username field. (This
can be blank if there is no username.)

Enter your password in the Password field. If youre creating a new password (i.e. if
youre signing up for a new website and you want to create a new, unique, random
password) click the Gen button to the right. This will pop up a password generator
dialog which you can use to generate a random password. There are several options in
this dialog, including what sorts of characters to include and how long to make the
password.
o Note that if you generate a random password, its not necessary that you
remember (or even know!) what that password is! KeepassX stores it for you, and
any time you need it youll be able to copy/paste it into the appropriate program.
This is the whole point of a password safeyou can use different long random
passwords for each website/service, without even knowing what the passwords
are!
o Because of this, you should make the password as long as the service will allow
and use as many different types of characters as possible.
o Once youre satisfied with the options, click Generate in the lower right to
generate the password, and then click OK. The generated random password will
automatically be entered in the Password and Repeat fields for you. (If youre
not generating a random password, then youll need to enter your chosen
password again in the Repeat field.)

Finally, click OK. Your password is now stored in your password database. To make sure
the changes are saved, be sure to save the edited password database by going to File >
Save Database. (Alternatively, if you made a mistake, you can close and then re-open the
database file and all changes will be lost.)

If you ever need to change/edit the stored password, you can just choose the Group its in and
then double-click on its title in the right-hand pane, and the New Entry dialog will pop up again.
Normal use: In order to use an entry in your password database, simply right-click on the entry
and choose Copy Username to Clipboard or Copy Password to Clipboard, and then go to the
window/website where you want to enter your username/password, and simply paste in the
appropriate field. (Instead of right-clicking on the entry, you can also double-click on the
username or password of the entry you want, and the username or password will be
automatically copied to your clipboard.)
It's important to note that is you're using KeePassX, it will not automatically save changes and
additions. This means that if it crashes after you've added some passwords, you can lose them
forever. You can change this in the settings.


Strong Passwords
Often computer users choose short, simple passwords that an attacker can easily guess, including
"password1", "12345", a birthdate, or a friend's, spouse's, or pet's name.
There are a few passwords that do need to be memorized and that need to be particularly strong:
those that ultimately lock your own data with cryptography. That includes, at least, passwords
for your device encryption like full-disk encryption, and the master password for your
password manager.
Because these passwords will always be longer than a single word, they are often called
passphrases. Short passwords of any kind, even totally random ones like nQ\m=8*x
or !s7e&nUY or "gaG5^bG, are not strong enough for use with encryption today.
Using a password manager can help you choose strong passwords by generating a random
password without pattern or structureone that won't be guessable.
In addition to a password manager, there are other ways to create a strong and memorable
passphrase; the most straightforward and sure-fire method is Arnold Reinhold's
"Diceware."[http://www.diceware.com/]
Reinhold's method involves rolling physical dice to randomly choose several words from a word
list; together, these words will form your passphrase. For disk encryption (and password safe),
we recommend selecting a minimum of six words.

Other things to consider
Security questions: security questions (such as What is your mothers maiden name? or "What
was your first pet's name?") that websites use to confirm your identity if you do forget your
password can be dangerous. Honest answers to many security questions are publicly
discoverable facts that a determined adversary can easily find, and therefore bypass your
password entirely. For instance, US vice-presidential candidate Sarah Palin had her gmail
account hacked this way. Instead, give fictional answers that, like your password, no one knows
but you. For example, if the password question asks you your pets name, you may have posted
photos to photo sharing sites with captions such as Here is a photo of my cute cat, Spot! Instead
of using Spot as your password recovery answer, you might choose Rumplestiltskin. Do not
use the same passwords or security question answers for multiple accounts on different websites or
services. You should store your fictional answers in your password safe, too.
Two-step authentication: Here the idea is that in order to log in, you need to be in possession of a
certain physical object: usually a mobile phone, but, in some versions, a special device called a
security token.Typically, this means that a thief or hacker would have to control both your laptop
and your phone before they have full access to your accounts.

Because this can only be set up with the cooperation of the service operator, there is no way to
do this by yourself if you're using a service that doesn't offer it.
Two-factor authentication using a mobile phone can be done in two ways: the service can send
you an SMS text message to your phone whenever you try to log in (providing an extra security
code that you need to type in), or your phone can run an authenticator application that

generates security codes from inside the phone itself. This will help protect your account in
situations where an attacker has your password but does not have physical access to your
mobile phone.
Some services, such as Google, also allow you to generate a list of one-time passwords, also
called single-use passwords. These are meant to be printed or written down on paper and
carried with you (although in some cases it might be possible to memorize a small number of
them). Each of these passwords works only once, so if one is stolen by spyware when you enter it,
the thief won't be able to use it for anything in the future.

VIII. ADDITIONAL READINGS AND RESOURCES

User Security

Tactical Technology Collective, Security in a Box*: https://securityinabox.org/

o This guide details information on personal security practices.
EFFs Surveillance Self-Defense: https://ssd.eff.org
o This guide provides information on staying safe online.
o It is in the process of being updated, and will soon be current.
Access, Guide to Protecting Your Security on Mobile Phones*:
o This guide provides information on using mobile phones securely. English version
available here:
https://s3.amazonaws.com/access.3cdn.net/4cf73dfa0c82b10500_w0m6ibnoh.pd
f
EFF, Keeping Your Site Alive*: https://www.eff.org/keeping-your-site-alive
o A guide to protecting your website against DDoS attacks.

Security Tools

HTTPS Everywhere*: https://www.eff.org/https-everywhere/

o This browser add-on enforces SSL encryption on websites.
Tor: https://www.torproject.org/
o A secure tool for anonymous browsing that also allows circumvention of blocked
websites
CryptoCat: https://crypto.cat/
o An easy-to-use web app for anonymous, encrypted conversations
BitMask: https://bitmask.net/
o Free VPN that works for Android smartphones.

Hackerspaces

List of all hackerspaces everywhere:

http://hackerspaces.org/wiki/List_of_ALL_Hacker_Spaces
o Make sure to check that they are still open before going.
List of those in the Bay Area: http://ba.chgrp.org/
o Varying focuses, many of them do some sort of crypto/security workshopping
Sudo Room in Oakland: https://sudoroom.org/
o Accessible and friendly, holds regularly cryptoparties

EFF

Contact me! Nadia@eff.org

If you have a legal question, email info@eff.org. Our intake coordinator works directly
with our legal team.

AN INTRODUCTION TO THREAT MODELING

There is no single solution for keeping yourself safe online. Digital security isnt
about which tools you use; rather, its about understanding the threats you face and
how you can counter those threats. To become more secure, you must determine
what you need to protect, and whom you need to protect it from. Threats can
change depending on where youre located, what youre doing, and whom youre
working with. Therefore, in order to determine what solutions will be best for you,
you should conduct a threat modeling assessment.
When conducting an assessment, there are five main questions you should ask
yourself:

What do you want to protect?

Who do you want to protect it from?
How likely is it that you will need to protect it?
How bad are the consequences if you fail?
How much trouble are you willing to go through in order to try to prevent those?

When we talk about the first question, we often refer to assets, or the things that
you are trying to protect. An asset is something you value and want to protect.
When we are talking about digital security, the assets in question are usually
information. For example, your emails, contact lists, instant messages, and files are
all assets. Your devices are also assets.
Write down a list of data that you keep, where its kept, who has access it, and
what stops others from accessing it.
In order to answer the second question, its important to understand who might
want to target you or your information, or who is your adversary. An adversary is
any person or entity that poses a threat against an asset or assets. Examples of
potential adversaries are your boss, your government, or a hacker on a public
network.
Make a list of who might want to get ahold of your data or communications. It
might be an individual, a government agency, or a corporation.
A threat is something bad that can happen to an asset. There are numerous ways
that an adversary can threaten your data. For example, an adversary can read your
private communications as they pass through the network, or they can delete or
corrupt your data. An adversary could also disable your access to your own data.
The motives of adversaries differ widely, as do their attacks. A government trying to
prevent the spread of a video showing police violence may be content to simply
delete or reduce the availability of that video, whereas a political opponent may
wish to gain access to secret content and publish it without you knowing.
Write down what your adversary might want to do with your private data.


The capability of your attacker is also an important thing to think about. For
example, your mobile phone provider has access to all of your phone records and
therefore has the capability to use that data against you. A hacker on an open Wi-Fi
network can access your unencrypted communications. Your government might
have stronger capabilities.
A final thing to consider is risk. Risk is the likelihood that a particular threat against
a particular asset will actually occur, and goes hand-in-hand with capability. While
your mobile phone provider has the capability to access all of your data, the risk of
them posting your private data online to harm your reputation is low.
It is important to distinguish between threats and risks. While a threat is a bad
thing that can happen, risk is the likelihood that the threat will occur. For instance,
there is a threat that your building might collapse, but the risk of this happening is
far greater in San Francisco (where earthquakes are common) than in Stockholm
(where they are not).
Evaluating risk is both a personal and a subjective process; not everyone has the
same priorities or views threats in the same way. Many people find certain threats
unacceptable no matter what the risk, because the mere presence of the threat at
any likelihood is not worth the cost. In other cases, people disregard high risks
because they don't view the threat as a problem.
In a military context, for example, it might be preferable for an asset to be destroyed
than for it to fall into enemy hands. Conversely, in many civilian contexts, it's more
important for an asset such as email service to be available than confidential.

Now, lets practice threat modeling.

If you want to keep your house and possessions safe, here are a few questions you
might ask:

Should I lock my door?

What kind of lock or locks should I invest in?
Do I need a more advanced security system?
What are the assets in this scenario?
The privacy of my home
The items inside my home
What is the threat?
Someone could break in.
What is the actual risk of someone breaking in? Is it likely?

Once you have asked yourself these questions, you are in a position to assess what
measures to take. If your possessions are valuable, but the risk of a break-in is low,
then you probably wont want to invest too much money in a lock. On the other

hand, if the risk is high, youll want to get the best locks on the market, and perhaps
even add a security system.

118

AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 12-13, 2013
RESOLUTION
RESOLVED, That the American Bar Association condemns unauthorized, illegal governmental,
organizational and individual intrusions into the computer systems and networks utilized by
lawyers and law firms;
FURTHER RESOLVED, That the American Bar Association urges federal, state, local,
territorial, and tribal governmental bodies to examine, and if necessary, amend or supplement,
existing laws to promote deterrence and provide appropriate sanctions for unauthorized, illegal
intrusions into the computer networks utilized by lawyers and law firms;
FURTHER RESOLVED, That the American Bar Association urges the United States
government to work with other nations and organizations in both the public and private sectors to
develop legal mechanisms, norms and policies to deter, prevent, and punish unauthorized, illegal
intrusions into the computer systems and networks utilized by lawyers and law firms;
FURTHER RESOLVED, That while the American Bar Association supports governmental
actions, policies, practices and procedures to combat these unauthorized, illegal intrusions into
the computer systems and networks utilized by lawyers and law firms, the ABA opposes
governmental measures that would have the effect of eroding the attorney-client privilege, the
work product doctrine, the confidential lawyer-client relationship, or traditional state court and
bar regulation and oversight of lawyers and the legal profession; and
FURTHER RESOLVED, That the American Bar Association urges lawyers and law firms to
review and comply with the provisions relating to the safeguarding of confidential client
information and keeping clients reasonably informed that are set forth in the Model Rules of
Professional Conduct, as amended in August 2012 and as adopted in the jurisdictions applicable
to their practice, and also comply with other applicable state and federal laws and court rules
relating to data privacy and cybersecurity.

118
REPORT
I.

Introduction

This Report explains the American Bar Associations (ABA) resolution regarding the
growing problem of intrusions into the computer systems and networks utilized by lawyers and
law firms. It notes the alarming rise of attacks on these electronic systems and networks and the
recent rise of nation states as significant actors in hacking activities over the past decade. The
Report also condemns these unauthorized, illegal intrusions and urges governmental bodies at all
levelsfederal, state, local, territorial, and tribalto examine, and if necessary, amend or
supplement existing laws to deter and punish these intrusions but only in a manner that respects
and protects client confidentiality, the broader confidential lawyer-client relationship, and
traditional state court regulation and oversight of lawyers and the legal profession. Further, the
Report notes the different measures available to combat hacking, including diplomatic and law
enforcement tools, legislation, and regulatory measures. This Report also underscores the
importance of protecting confidential client information, the attorney-client privilege, and other
core legal principles. Finally, the Report describes the ethical rules and professional obligations of
lawyers and law firms implicated by information security breaches. This includes the lawyers
obligation to review and comply with the provisions relating to the safeguarding of confidential
client information and keeping clients reasonably informed that are set forth in the Model Rules of
Professional Conduct, as amended in August 2012 and as adopted in the jurisdictions applicable to
their practice. It also includes the lawyers obligation to comply with other applicable state and
federal laws and court rules relating to data privacy and cybersecurity. Overall, the Resolution
builds upon the several ABA Resolutions passed by the House of Delegates and Board of
Governors relating to information security and client confidentiality.
Moreover, it is the expectation of the Task Force that there will be additional resolutions
on cyber dealing with the issues of privacy, legal and illegal intrusions, and government
responsibilities. This resolution does not address U.S. government activities authorized by law in
the national security realm.
II.

Background
A.

Increasing Cyber Attacks on Lawyers and Law Firms

As American businesses and government agencies become increasingly reliant upon

electronic communications, they grow more vulnerable to information security attacks. Such
attacks are increasingly sophisticated and target critical infrastructure and national security assets
as well as personal information. Criminals, terrorists, and nation states all see potential gains from
attacking information systems. These threats to highly sensitive information trigger concerns from
the national security community, privacy advocates, and industry leaders alike.

118
The Director of the National Security Agency estimates that the United States loses $250
billion each year due to cyber-espionage and other malicious attacks on information systems.1
Confidentiality, integrity, and availability are the three cornerstone goals that every data security
program is designed to achieve. Malicious attacks exploiting security vulnerabilities take a
number of forms. A common attack affecting availability and information access is a
distributed denial of service (DDoS) attack, whereby servers are overwhelmed when
malicious attackers flood the bandwidth or other resources of the targeted system with external
communications requests. Attacks on integrity cause improper modification of information by
inserting, deleting, or changing existing data. In an attack affecting confidentiality, an
eavesdropper can gain access to sensitive data whenever it leaves a secure area or is transmitted in
an unsecure fashion (i.e., unencrypted).
New and increasingly elaborate methods are being developed for accessing confidential
information. By using phishing or spear phishing attacks, intruders attempt to acquire
information, such as login credentials. Masquerading as a trustworthy entity in an electronic
communication, they entice users to open an e-mail attachment or click on a link to a website
containing malicious software that will infect a networks computers and report sensitive
information back to the intruders.2 These programs often remain undetected for months.3
Attacks on confidential information held in private systems and networks can pose a direct
threat to the economic and national security interests of the United States as well as the security of
individuals and companies. Data collected by government agencies and by private information
security experts over the past half-decade indicate a serious rise in state-sponsored hacking
activities.4 Attribution techniqueswhich allow investigators to detect where cyber attacks
originatehave improved, and information security experts have linked many recent attacks on
private organizations to state-sponsored actors.5 A 2013 National Intelligence Estimate identified
state-sponsored hacking as a chief threat to the countrys economic competitiveness.6 The report
represents the consensus view of the United States intelligence community and describes a wide
range of sectors that have been the focus of hacking over the past five years, including the
financial, information technology, aerospace, and automotive sectors.7

Keith Alexander, Dir., Natl Sec. Agency, & Commander, U.S. Cyber Command, Speech at the American
Enterprise Institute: Cybersecurity and American Power (Jul. 9 2012), available at
http://www.aei.org/events/2012/07/09/cybersecurity-and-american-power/.
2
MANDIANT, APT1: EXPOSING ONE OF CHINAS CYBER ESPIONAGE UNITS (2013), available at
http://intelreport.mandiant.com/Mandiant_APT1_Report.pdf.
3
Id.
4
OFFICE OF THE NATIONAL COUNTERINTELLIGENCE EXECUTIVE, FOREIGN SPIES STEALING US ECONOMIC
SECRETS IN CYBERSPACE: REPORT TO CONGRESS ON FOREIGN ECONOMIC COLLECTION AND INDUSTRIAL
ESPIONAGE (Oct. 2011).
5
MANDIANT APT1, supra note 2; See also JAMES R. CLAPPER, WORLDWIDE THREAT ASSESSMENT OF THE
US INTELLIGENCE COMMUNITY 2-3 (Mar. 12, 2013) (State and non-state actors increasingly exploit the
Internet to achieve strategic objectives.).
6
Ellen Nakashima, U.S. said to be target of massive cyber-espionage campaign, WASH. POST, (Feb. 10,
2013), http://articles.washingtonpost.com/2013-02-10/world/37026024_1_cyber-espionage-nationalcounterintelligence-executive-trade-secrets.
7
Id.

118
As security experts in aggressively targeted sectors have ramped up security efforts, the
information security firm Mandiant reports that state-sponsored hackers have broadened their
sights to include outside vendors and the business partners of high-value targets.8 Mandiants
comprehensive report on information security in the private sector points to an increase in attacks
on the computer systems and networks of firms engaging in outsourced tasks, such as information
technology, human resources, financial, and legal services.9
Because law firms work with thousands of clients across numerous industry sectors, cyber
intruders see law firms as lucrative storehouses of sensitive information.10 Companies seek
counsel when they are engaged in deeply sensitive and highly expensive matters, which tend to
generate information that is potentially of great value to third parties. Financial details concerning
a merger or acquisition can give any interested outside entity an advantage in future
negotiations. Similarly, lawyers have access to details about an organizations inner workings in
the midst of litigation. Such information enables competitors to assess the financial stability of an
organization and gain other tactical information. Furthermore, a firms litigation strategy is often
outlined in various intra-firm communications. These documents provide significant advantage to
opposing parties or interested third parties when computer systems or networks are successfully
breached.
Law enforcement authorities in the United States, Canada, and the UK have all noted the
rise in threats to law firm information systems. In November 2011, the Federal Bureau of
Investigation (FBI) convened 200 large law firms in New York City to urge them to review their
cybersecurity policies. In 2012, the Director General of the British MI-5 informed the 300 largest
companies in the UK that their information was as likely to be stolen from the computers of their
attorneys and international consultants as from their own. The FBI does not track individual
breaches or keep statistics on the types of businesses attacked, but a 2012 Mandiant report
estimated that 80% of the 100 largest United States law firms were subject to successful data
breaches by malicious intruders in 2011 alone.11
B.

A Threat to Attorney-Client Confidentiality

Consistent with its commitment to client protection, the ABA is committed to defending
the confidentiality of lawyer-client communications against these new threats. Protecting
confidences is imperative for both ethical and practical reasons. Preservation of client
confidentiality is widely recognized as fundamental to the ability of lawyers to successfully
represent their clients interests. Clients must be secure in their ability to share confidential
information with their lawyers, and the preservation of the confidentiality of lawyer-client
communications is crucial to public confidence in the legal system. The legal profession, the

MANDIANT, M-TRENDS 2012: AN EVOLVING THREAT (2012), available at

https://www.mandiant.com/resources/m-trends/.
9
Id.
10
Jessica Seah, China Hacking Report Raises Alarms at Law Firms, THE ASIAN LAWYER (Feb. 25, 2013),
http://www.law.com/jsp/article.jsp?id=1202589420933&slreturn=20130319060101.
11
Michael A. Riley, China-Based Hackers Target Law Firms to Get Secret Deal Data, BLOOMBERG NEWS
(Jan. 31, 2012), http://www.bloomberg.com/news/2012-01-31/china-based-hackers-target-law-firms.html.

118
legal system, and foreign and domestic actors should not ignore this important facet of the
attorney-client relationship.
The involvement of nation states in targeting confidential legal information is particularly
troubling. Basic principles of due process and even human rights may be violated when
confidential communications are breached by such intrusions. As protectors of the rule of law and
the integrity of those who practice law, the ABA and the United States legal community condemn
such intrusions and the organizations and nations engaged in this conduct.
III.

A Strong United States and International Response

Widespread intrusions into the computer systems and networks of law firms deeply
threaten clients, the legal profession and our system of justice. The United States has
acknowledged that private actors and foreign governments disregard this essential aspect of legal
representation when they systemically steal information, threaten access to information, or
improperly modify information to the disadvantage of clients. The ABA urges the United States
government and international community to speak out against these intrusions and to counter them
with decisive action. In addition, the ABA urges not just the federal government, but state, local,
territorial, and tribal governmental bodies as well, to examine, and if necessary, amend or
supplement, any existing laws as may be necessary to deter and punish those who launch these
unauthorized, illegal intrusions into the computer systems and networks of lawyers and law firms.
A.

Importance of Protecting Client Confidences

Preserving the confidentiality of the attorney-client relationship is a bedrock principle of

the American Bar Association. However, widespread security breaches expose client confidences
and erode trust. This in turn jeopardizes the ability of lawyers to carry out their critical role in the
legal system. The obligation of lawyers to maintain confidentiality, a fiduciary duty of the highest
order, is expressed in the common law, the applicable rules of professional conduct, the attorneyclient privilege and the work product doctrine.
1.

Confidentiality, the Attorney-Client Privilege and the Work Product

Doctrine

The fiduciary duty of confidentiality of an agent, particularly a lawyer, vis--vis the

lawyers client, has historical roots in the common law. It remains a common law duty, but today
it is also codified in the rules of professional conduct of every jurisdiction in the United States, in
essentially the same form as one finds it in the ABA Model Rules of Professional Conduct
(Model Rules).12 The duty of confidentiality, which applies to any voluntary act by a lawyer, is
extremely broad in its Model Rule incarnation, protecting all information relating to the
representation, even if that information has been otherwise disclosed in public documents. The
Model Rules provide narrow exceptions that permit, but do not require, lawyer disclosure of
confidential client information. Such exceptions include but are not limited to when the lawyer
12

See ABA MODEL RULES OF PROFESSIONAL CONDUCT (2013), available at

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/model_rules_of_professional_conduct_table_of_contents.html.

118
reasonably believes disclosure is necessary to prevent reasonably certain death or serious bodily
harm, to prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial financial injury to another and for which the client has used or is using the lawyers
services, to consult with another lawyer about the lawyers compliance with the Rules, and to
comply with other law or a court order.13
The attorney-client privilege is the oldest common law privilege for confidential
communications, dating to 16th century England. It is a privilege whose underlying purpose is to
enable persons to seek and lawyers to provide candid legal advice through unfettered
communication between lawyer and client without fear that those communications will be
disclosed to others. The availability of the privilege is considered indispensable to effective
lawyer advocacy on behalf of clients in every representation, both before tribunals and elsewhere.
In a landmark case regarding attorney-client privilege, the Supreme Court noted full and frank
communication between attorneys and their clients also promote[s] broader public interests in
the observance of law and administration of justice.14
Attorney-client communications are generally only privileged if the communication was
for the purpose of enabling the client to secure legal assistance and was made outside the presence
of third parties. Some exceptions to the privilege include communications unrelated to the
representation, non-legal advice, and advice in furtherance of an illegal activity.15 The privilege is
also lost if the client knowingly waives the privilege on informed consent.16 However, the
attorney-client privilege cannot be lost simply because a government agency or other third party
claims they need to know the clients communications with a lawyer. If this exception were
adopted, clients could not know whether their communications would be privileged in advance.
As a result, clients would likely withhold crucial facts from their lawyers and fail to receive the
advice they need to conform their conduct to the law.
The work product doctrine protects the work product of an attorney developed in
anticipation of litigation.17 Like the attorney-client privilege, the doctrine is rooted in ensuring
effective legal representation by preventing the exposure of certain lawyer work product material
to adversaries. However, the doctrines main purpose is to allow the lawyer to thoroughly prepare
for litigation. Thus, while not all attorney-client privileged communications are work product
(because they do not occur in anticipation of litigation), work product is in a certain sense broader
because it covers communications with non-clients as well as clients, if undertaken in anticipation
of litigation. Another key difference is that both the attorney and client may claim ownership of
the work product while the attorney-client privilege belongs solely to the client.18

2.
13

Confidentiality Obligations in Cyberspace

See MODEL RULES OF PROF'L CONDUCT R. 1.6(b) (2013).

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
15
See Clark v. U.S., 289 U.S. 1, 15 (1933); U.S. v. Bob, 106 F.2d 37, 40 (2d Cir. 1939).
16
See U.S. v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950).
17
EDNA EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE, 391-465 (4th
ed. 2001).
18
Id., at 490.
14

118
Recent technological advances create new and unique legal challenges. The American Bar
Association is already providing leadership and guidance on protecting client information from
cybersecurity breaches and balancing important policy goals.19 Lawyers have a responsibility to
develop and maintain systems that will effectively secure client information and firm computer
networks. Lawyers must also dedicate themselves to staying competent in cybersecurity to better
represent clients who are victims of cybercrimes.
The legal profession has historically provided leadership and played an essential role in
preserving legal rights and, ultimately, the rule of law. The complexity and severity of
cybersecurity threats only make the legal professions involvement more necessary. In August
2005, the ABA House of Delegates unanimously approved Resolution 111, which broadly
addressed attorney-client principles. The resolution reaffirmed the preservation of the attorneyclient privilege and work product doctrine as central to maintaining the confidential lawyer-client
relationship. The key public benefits can be summarized as follows:
1.
2.
3.
4.
5.

Promoting voluntary legal compliance.

Encouraging client candor.
Ensuring effective client advocacy.
Ensuring access to justice.
Promoting efficiency in the American adversarial legal system.

The principles of the attorney-client privilege and work product doctrine must be protected
in the context of cyber intrusions. However, lawyers must also develop policies that strike the
right balance between client-attorney confidentiality and necessary access to protected
information. The client information implicated in a law firm cyber intrusion may be relevant in
attempting to determine the perpetrator who exposed the privileged information in the first place.
Reconciling these competing objectives will require thoughtful debate and patience from the legal
community.
B.

Potential Government Actions to Reduce Cyber Intrusions

The United States government has an obligation to help protect the computer systems and
networks of American companies and citizens from unlawful intrusion. In order to combat the
new and significant threats of cyber attacks, the government should evaluate a full spectrum of law
enforcement, military, diplomatic, intelligence, and economic measures to pressure cyberespionage actors into stopping their attacks. This Report notes a number of tools that United
States authorities may consider, including increased investigations to hold hackers accountable,
high-profile diplomatic actions, economic sanctions, and use of visa authority.
1.

Renewed Focus on Investigations

Government criminal and civil investigations should use law enforcement and intelligence
authorities to penetrate hacker networks. Litigants and lawyers who participate in or abet cyber
intrusions should also be sanctioned and prosecuted. Such conduct by lawyers should also be
19

See e.g., MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. & R. 1.6(c) (2013) (as adopted in August 2012).

118
subject to review by lawyer disciplinary authorities. The United States Department of Justice
(DOJ) prosecutes cyber-espionage primarily through the National Security Division and the
Criminal Divisions Computer Crime and Intellectual Property Section. DOJ should prioritize and
devote more resources to cybercrime, including attacks on law firms.20 For example, DOJs
National Security Division may begin indicting suspected state-sponsored hackers, in part as a
deterrent strategy. Although nation states are not likely to turn over their citizens to the United
States for criminal prosecution, the specific legal action makes it more difficult for a hackers
state-sponsor to deny a problem exists. The action would give the United States additional
leverage in diplomatic negotiations. The indictments would also have the benefit of discouraging
suspected hackers from traveling freely because foreign governments could easily turn them over
to United States law enforcement.21
The United States could reemphasize mutual international assistance for investigatory
powers under the Convention on Cybercrime.22 In 2001, the Convention of the Council of Europe
codified international best practices for legal frameworks protecting against cybercrime.23 The
United States has both signed and ratified the Convention.24 Article 25 states parties should
afford one another mutual assistance to the widest extent possible for the purpose of investigations
or proceedings concerning criminal offences related to computer systems and data.25 As a
practical matter, this principle of active cooperation remains extremely relevant to the world of
cyber-espionage.
Cyber intrusion investigations would also greatly benefit from domestic public-private
cooperation. Since private companies are frequent victims of cybercrimes, they often possess the
motivation and creativity to bolster the governments efforts. In particular, the private sector
could supplement the governments relative lack of financial resources. This may include using a
private investigator in place of a government investigator.26 A compromised company can also
volunteer information on the cyber intruders nature, goals, tactics, and potential vulnerabilities.
2.

Diplomatic Responses

The United States should lead a multinational coalition of countries that have been major
targets of cyber attacks to discourage such attacks, including those against lawyers and law
20

See The Hackback Debate, STEPTOE CYBERBLOG (Nov. 2, 2012), available at

http://www.steptoecyberblog.com/2012/11/02/the-hackback-debate/.
21
Siobhan Gorman, U.S. eyes pushback on China hacking, WALL ST. J. (Apr. 22, 2013),
http://online.wsj.com/article/SB10001424127887324345804578424741315433114.html.
22
COUNCIL OF EUROPE, CONVENTION ON CYBERCRIME (Nov. 11, 2001) E.T.S. No. 185, available at
http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm (last visited Apr. 22, 2013).
23
Id.; David Satola & Henry L. Judy, Towards A Dynamic Approach to Enhancing International
Cooperation and Collaboration in Cybersecurity Legal Frameworks: Reflections on the Proceedings of the
Workshop on Cybersecurity Legal Issues at the 2010 United Nations Internet Governance Forum, 37 WM.
MITCHELL L. REV. 1745, 1791 (2011).
24
Satola, supra note 23, at 1772-73.
25
CONVENTION ON CYBERCRIME, supra note 22.
26
Testimony of Stewart Baker, The Department of Homeland Security: An Assessment of the Department
and a Roadmap for its Future, House Homeland Security Committee 112th Congress (Sep. 20, 2012).

118
firms.27 Using a collaborative approach through bilateral and multilateral diplomacy, the U.S.
should encourage development of an international code of conduct to combat cyber intrusions. At
his January 2013 nomination hearing, Secretary of State John Kerry mentioned the need to
engage in cyber diplomacy and cyber negotiations and try to establish rules of the road that help
us to be able to cope with the challenges of foreign hackers.28
When cooperation is not feasible, the United States should take a firmer diplomatic tone
with nation states implicated in attacks on the computer systems and networks of American law
firms. The international community cannot tolerate such activity from any country, said
National Security Advisor Thomas Donilon regarding cyber intrusions in March 2013 remarks to
the Asia Society.29 With proper attribution, the international community could bring negative
publicity to state-sponsored hackers. This in turn could persuade specific countries and private
companies to raise complaints with the offending nation state. Along those lines, the United
States government should continue to press cyber-espionage actors at the highest levels of
diplomacy. All state-sponsors of cyber attacks should recognize the urgency of the problem and
acknowledge the need to prevent widespread cybercrimes. The United States can encourage these
nation states to conduct their own investigations, prioritize domestic anti-hacking enforcement,
and expose the individuals responsible for specific intrusions.
3.

Other Government Sanctions and Tools

The United States government could also consider serious measures such as economic
sanctions or asset forfeitures against those involved in cyber intrusions, or the strategic use of visa
authority vis--vis foreign nationals. The Treasury Departments Office of Foreign Assets Control
(OFAC) administers sanctions against targeted foreign actors.30 OFAC accomplishes key
national security goals by imposing controls on transactions and freezing assets under United
States jurisdiction.31 OFACs legal authority derives from presidential national emergency powers
and specific legislation.32 Many of the sanctions are based on United Nations resolutions and
other international mandates. The Computer Fraud and Abuse Act (CFAA) also authorizes the
criminal forfeiture of any personal property or interest in personal property derived from illegal

27

Dean Cheng, Chinese Cyber Attacks: Robust Response Needed, Heritage Foundation Issue Brief #3861
(Feb. 23, 2013), http://www.heritage.org/research/reports/2013/02/chinese-cyber-attacks-robust-responseneeded.
28
Testimony of John Kerry, Hearing on the Nomination of John Kerry to be Secretary of State, Senate
Foreign Relations Committee 112th Congress (Jan. 24, 2013).
29
Thomas Donilon, National Security Advisor to the President, Remarks at the Asia Society: The United
States and the Asia-Pacific in 2013 (Mar. 11, 2013), available at http://www.whitehouse.gov/the-pressoffice/2013/03/11/remarks-tom-donilon-national-security-advisory-president-united-states-a.
30
Office of Foreign Assets Control, TREASURY.GOV, (last accessed May 3, 2013),
http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-AssetsControl.aspx.
31
Id.
32
See 50 U.S.C. 1702 (a)(1)(B), (C) (2012) (granting authority to the President to declare an economic
emergency and then impose sanctions).

118
activity.33 Additionally, the Obama administration has proposed amending the CFAA to include a
civil forfeiture provision.34
Visas too could be used either as a carrot or a stick. At the Attorney Generals discretion,
DOJ can issue S-5 criminal informant visas to foreign nationals possessing critical reliable
information concerning a criminal organization.35 Meanwhile, the Department of Homeland
Security has the authority to adopt a policy of denying or canceling visas to individuals involved
in cyber-espionage, including researchers.36
C.

Protecting Client Confidentiality During Investigations

Confidential client information should be protected during any cyber intrusion

investigation, consistent with ethics rules and to prevent the erosion of the attorney-client privilege
and work product doctrine. Assisting such government investigations is important, but law
enforcement should seek ways to conduct investigations without breaching confidentiality. If
private investigators are going through compromised computer systems and networks instead of
government investigators, they too must take steps to avoid disclosing the clients information.
Guidelines should also ensure client confidences are not used in unrelated investigations, unless
the privilege or work product protection is waived by the clients consent. Privileged and
confidential client information from law firm systems and networks should not be permitted to be
used in prosecutions or civil enforcement cases against the client and third parties. This protection
should also extend to government agency inquiries related to intelligence or national security.
Government efforts to combat cyber attacks should comport with ABAs long-standing
commitment to the principle of attorney-client confidentiality. Both parties suffer when the
foundation of the attorney-client relationship is threatened. The exposure of information to
government agencies or private parties creates a chilling effect on client-attorney communication
and reduces client candor. Such exposure also discourages voluntary legal compliance and
information-sharing in cybercrime investigations. This is especially problematic as companies
conducting internal investigations increasingly rely on law firms attorney-client privilege.37
IV.

Ethical and Professional Obligations for Computer Security

The wealth of confidential data maintained in lawyers computers and information systems
faces substantial and very real security risks.38 It is critical for all lawyers to understand and
33

See 18 U.S.C. 1030 (i)(A),(B) (2012).

Testimony of Richard Downing, Cyber Security: Protecting Americas New Frontier, House Judiciary
Subcommittee on Crime, Terrorism and Homeland Security 112th Congress (Nov. 15, 2011).
35
KARMA ESTER, CONG. RESEARCH SERV., RS21043, IMMIGRATION: S VISAS FOR CRIMINAL AND
TERRORIST INFORMANTS (2005), available at http://www.fas.org/sgp/crs/terror/RS21043.pdf.
36
See e.g., 8 U.S.C. 1184(b); Geoff Dyer, US seeks cyber espionage crackdown, FINANCIAL TIMES (Mar.
28, 2013), http://www.ft.com/cms/s/0/f2adc696-97cc-11e2-97e0-00144feabdc0.html#axzz2QrxFlXSV.
37
Christopher Matthews, Law firms tout cybersecurity cred, WALL ST. J. (Mar. 31, 2013),
http://online.wsj.com/article/SB10001424127887324883604578394593108673994.html.
38
RANDY J. CURATO, CYBER LAWYERING DATA MANAGEMENT AND SECURITY: A LAW FIRM
MANAGEMENT GUIDE 14 (Dec. 2012).
34

118
address these risks to ensure they comply with their legal, ethical, and regulatory obligations to
safeguard client data.39 The ABA Model Rules of Professional Conduct provide guidance to
lawyers regarding their ethical obligations about preventing the unauthorized disclosure of and
unauthorized access to confidential client information and responding to a breach should it occur.
This Resolution, in the final Further Resolved clause, reminds lawyers and law firms of the
importance of reviewing and complying with applicable ethics rules and also other law that
governs their conduct in the cybersecurity context.
A.

Protection of Information Systems

There are two main duties implicated in the protection of confidential client information
from inadvertent disclosure or unauthorized access: (1) the duty of competence under Model Rule
1.1, and (2) the duty of confidentiality under Model Rule 1.6.
1.

Duty of Competence: Model Rule 1.140

Model Rule 1.1 provides that a lawyer shall provide competent representation to a client.
This requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.41 In August 2012, the House of Delegates adopted amendments to the
Comments to Model Rule 1.1 at the recommendation of the ABA Commission on Ethics 20/20 to
highlight the importance of technology to legal practice. Comment [8] to Model Rule 1.1 now
states that a lawyer should keep abreast of changes in the law and its practice, including the
benefits and risks associated with relevant technology . . .42 The amendment does not impose
new obligations on lawyers.43 Rather, it is intended to highlight the growing significance of
technology to legal practice and emphasize a lawyers responsibility to stay informed.44
The duty is not necessarily for lawyers to become technological experts, but to ensure that
they understand the impact of technology on the activities of a client or law firm. Technical
proficiency implicates not only adequate protection of confidential information, but providing
adequate advice to clients on technological matters including protection of the clients own data.
The Report of ABA Ethics 20/20 Commission explaining the amendment noted that a
lawyer should understand the basic features of relevant technology, such as how to create an
electronic document and how to use email, in order to ensure clients receive competent and

39

Jon M. Garon, Technology Requires Reboot of Professionalism and Ethics for Practitioners, 16 J.
INTERNET L. 3 (2012).
40
MODEL RULES OF PROF'L CONDUCT R. 1.1 (2013).
41
Garon, supra note 39.
42
CURATO, supra note 38.
43
MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. [8] (2013).
44
Garon, supra note 39; Matt Nelson, New changes to Model Rules a wake-up call for technologically
challenged lawyers, INSIDE COUNSEL (Mar. 13, 2013), http://www.insidecounsel.com/2013/03/28/newchanges-to-model-rules-a-wake-up-call-for-tech.

118
efficient legal services.45 Some suggest that the level of knowledge a lawyer should obtain will
depend on factors such as the types and sensitivity of data collected by the lawyer or law office in
each particular area of practice.
Attorneys have an obligation to safeguard information relating to clients. This may
include approaching information security as a process, understanding the limitations in attorneys'
competence, obtaining appropriate assistance, continuing security training and awareness, and
reviewing technology, threats, and available security options as they evolve over time.46
Flexibility is required to allow obligations to grow and develop alongside technological
advancement.
Many law firms and lawyers already rely on IT to assist them in relevant technology and
training. Lawyers who do not do so already may want to consult with technological experts to
ensure that they are adequately keeping pace with rapidly changing technology and related
security threats.47 Additionally, law firms might benefit by increasing the number of nonlawyers
devoted to safeguarding information and training attorneys in how to prevent accidental disclosure
or unauthorized access.
2.

Duty of Confidentiality: Model Rule 1.648

A lawyer has an ethical duty to take reasonable measures to protect a clients confidential
information from unauthorized access and disclosure. Under Model Rule 1.6, lawyers must take
reasonable precautions to safeguard information relating to the representation of a client.
The ABA amended Model Rule 1.6 in August 2012 to require that this duty extend to
client information in computers and information systems. New paragraph (c), states, [a] lawyer
shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or
unauthorized access to, information relating to the representation of a client.49 However, an
inadvertent disclosure or breach alone does not constitute a violation of the rule if reasonable
precautions have been taken. Notably, the new black letter Rule and Comment did not change any
ethical obligations. It simply made the prevailing understanding of the obligations explicit and
clear in light of new technology.
Defining the reasonable precautions lawyers must take to protect data poses a challenge.
The specific administrative, technical, or physical safeguards required for a client's information
will vary from situation to situation. Additionally, what is reasonable will change as technology
45

ABA Commission on Ethics 20/20 Introduction and Overview (May 7, 2012), available at

http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120508_ethics_20_20
_final_hod_introdution_and_overview_report.authcheckdam.pdf.
46

David G. Ries, Cybersecurity for Attorneys: Understanding the Ethical Obligations, LAW PRACTICE
TODAY (Mar. 2012),
http://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/march12/
cyber-security-for-attorneys-understanding-the-ethical-obligations.html.
47
Id.
48
MODEL RULES OF PROF'L CONDUCT R. 1.6 (2013).
49
MODEL RULES OF PROF'L CONDUCT R. 1.6(c) (2013).

118
changes. Comment [18] provides guidance as to what is reasonable by identifying some of the
factors that would dictate heightened security and require greater precaution.50 These standards
include the:
1.
2.
3.
4.
5.

Sensitivity of the information

Likelihood of disclosure if additional safeguards are not used
Cost of using additional safeguards
Difficulty of using the safeguards
Extent to which the safeguards adversely affect the ability to represent the client
(e.g., by making a device or important piece of software excessively difficult to
use).51

Lawyers may develop greater clarity and specificity with individual clients through
contractual agreements and waivers. Indeed, Comment [18] states that a client may require the
lawyer to use special security measures beyond the requirements of Rule 1.6, or may waive certain
security measures that would otherwise be required by the Rule.52 Comment [19] includes a
similar provision. These provisions should be utilized to avoid uncertainty. Significantly, many
state bar ethics opinions have indicated that lawyers and law firms should obtain informed consent
from the client prior to utilizing any cloud computing or third-party online hosts of confidential
client information.53 Accordingly, these types of agreements may already be relatively common
practice for many lawyers and law firms.
Confidentiality also implicates Model Rule 5.3, which provides that lawyers with
managerial authority in a law firm must take steps to ensure that all firm employees, including
nonlawyers, handle data and use technology in a manner that reasonably safeguards client
information. Further, Comment [3] to Rule 5.3 extends the obligation beyond firm staff to
vendors and other nonlawyers outside the firm.54 Many incidences of hacking occur through
offsite vendors or the personal computers of employees. In response, lawyers and law firms could
develop internal policies and training as part of the reasonable precautions utilized to safeguard
confidential information and prevent liability.

50

CURATO, supra note 38, at 14.

MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. [18] (2013).
52
CURATO, supra note 38, at 15.
53
See e.g., Massachusetts Bar Assn., Ethics Op. 12-03 (2012), available at
http://www.massbar.org/publications/ethics-opinions/2010-2019/2012/opinion-12-03; Pennsylvania Bar
Assn., Formal Op. 2011-200 (2011), available at http://www.slaw.ca/wp-content/uploads/2011/11/2011200-Cloud-Computing.pdf; New Hampshire Bar Assn., Advisory Op. 2012-13/4 (2012), available at
http://www.nhbar.org/legal-links/Ethics-Opinion-2012-13_04.asp; New York State Bar Assn Comm. on
Profl Ethics, Advisory Op. 842 (2010), available at
http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&template=/CM/ContentDisplay.cfm&
ContentID=140010; Vermont Bar Assn., Advisory Op. 2010-6 (2010). See also JOHN M. BARKETT,
ETHICAL CHALLENGES ON THE HORIZON: CONFIDENTIALITY, COMPETENCE AND CLOUD COMPUTING
(2011), available at
http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/sac2013/sac_2013/36_the_
ethical.authcheckdam.pdf.
54
CURATO, supra note 38, at 14.
51

118
Lawyers should keep informed of state and federal laws governing information security.
Comment [18] to Model Rule 1.6 notes that whether a lawyer is required to take additional steps
to comply with other laws that govern data privacy is beyond the scope of the Rule. However,
there is a burgeoning body of privacy and breach notification laws that apply to lawyers, as well as
those who store or transmit electronic information. Lawyers should familiarize themselves and
comply with these laws.
B.

Legal and Ethical Duties Triggered by a Security Breach

With respect to client communications, when there is a breach of confidentiality, a lawyer

may have a duty to disclose that breach under the Model Rules. The ethical obligations of lawyers
to disclose breaches to a client are set forth in Model Rule 1.4. Model Rule 1.4 generally
discusses a lawyers duty to communicate with his or her client. Rule 1.4(a) requires keeping the
client reasonably informed about the status of the matter.55 Rule 1.4(b) states that a lawyer
shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.56 Though not explicitly stated, these provisions indicate
that in certain circumstances lawyers might have an ethical obligation to provide notice to a client
when confidential information relating to the client is compromised.
The general standard for Rule 1.4 is that a lawyer must keep clients informed about
material developments. Therefore, lawyers must tell clients that a breach occurred when it is
material to their case. However, the scope of the duty to inform remains under review. For
example, in 2009, the Illinois State Bar Association took the position that a lawyer may be
obligated to disclose a breach to its client if it is likely to affect the position of the client or the
outcome of the client's case.57 However, other state bars have either specifically declined to issue
direct opinions or have issued opinions that have no clear standard.58
Some of the ambiguity associated with determining when a material breach has occurred
can be mitigated by provisions in Rule 1.4 that require obtaining informed consent.59 As part of
good practice, a lawyer may want to inform clients of the technology and security practices they
utilize so that clients can make informed decisions. Lawyers may also want to provide specialized
instructions to clients regarding how a breach or possible breach of confidential information will
be handled.60 By obtaining informed consent in advance, lawyers and law firms can craft specific
terms regarding what constitutes a material breach and when clients will be informed of a breach.
Notably, certain legal and regulatory requirements may be stricter than the ethical rules. Thus, it
is important that lawyers ensure that consent agreements are in accordance with state and federal
laws.
55

MODEL RULES OF PROF'L CONDUCT R. 1.4 (2013); Roland L. Trope & Sarah Jane Hughes, Red Skies in
the Morning-Professional Ethics at the Dawn of Cloud Computing, 38 WM. MITCHELL L. REV. 111, 228-30
(2011).
56
Id.
57
BARKETT, supra note 53.
58 Id., at 14.
59
60

MODEL RULES OF PROF'L CONDUCT R. 1.4 (2013).

Trope & Hughes, supra note 55, at 229 (2011).

118
Beyond their ethical duties, lawyers may be subject to legal or regulatory requirements for
breach notification.61 Forty six (46) states as well as the District of Columbia, Puerto Rico, and
the U.S. Virgin Islands have enacted data breach notification laws that require any business in
possession of certain sensitive personal information about a covered individual to disclose a
breach of that information to the person(s) affected. The first federal data breach notification law
covers health care.62 Furthermore, a breach may affect entities and individuals who are not clients.
This means that lawyers legal obligations may not be limited to information relating to their
clients.
V.

Conclusion

Information security represents an increasingly important issue for the legal profession.
Sophisticated hacking activities on private computer systems and networks, including on those
utilized by lawyers and law firms, have increased dramatically over the last decade. These
information security breaches expose clients, their lawyers, and society at large to significant
economic losses. Further, these breaches undermine the legal profession as a whole by threatening
client confidentiality, the attorney-client privilege, and the broader confidential lawyer-client
relationship. As the national representative of the legal profession, the ABA should play a leading
role in urging the United States and other governmental bodies to discourage, prevent, and punish
malicious intrusions into lawyer and law firm computer systems and networks, but only in a
fashion that protects these core legal principles and traditional state court regulation and oversight
of lawyers and the legal profession. The ethical rules have long imposed certain professional
obligations on lawyers and law firms to protect confidential information from breaches, but as
technology advances, the legal profession must adapt to meet the demands of clients and ensure
that cornerstones of the profession, such as confidentiality, remain intact.
Respectfully submitted,
Judith Miller and Harvey Rishikof
Co-Chairs, Cybersecurity Legal Task Force
August 2013

61

LUCY THOMSON, DATA BREACH AND ENCRYPTION HANDBOOK (ABA 2011).

National Conference of State Legislatures, State Security Breach Notification Laws, available at
http://www.ncsl.org/issues-research/telecom/security-breach-notification-laws.aspx; 42 U.S.C. 17931, 78
FR 5642 (Jan. 25, 2013).
62

118
GENERAL INFORMATION FORM
Submitting Entity: Cybersecurity Legal Task Force
Submitted By: Judith Miller and Harvey Rishikof, Co-Chairs

1. Summary of Resolution(s).
This Resolution condemns unauthorized, illegal intrusions by governments,
organizations, and individuals into the computer systems and networks utilized by
lawyers and law firms; urges federal, state, and other governmental bodies to
examine and, if necessary, amend existing laws to fight such intrusions; urges the
United States government to work with other nations and organizations in both the
public and private sectors to deter, prevent, and punish such intrusions; supports
governmental measures to combat such intrusions while opposing governmental
measures that would have the effect of eroding the attorney-client privilege, the
work product doctrine, the confidential lawyer-client relationship, or traditional state
court regulation of lawyers; urges lawyers and law firms to review and comply with
the provisions relating to the safeguarding of confidential client information and
keeping clients reasonably informed that are set forth in the Model Rules of
Professional Conduct, as amended in August 2012 and as adopted in the jurisdictions
applicable to their practice; and urges lawyers and law firms to comply with other
applicable state and federal laws and court rules relating to data privacy and
cybersecurity.
2. Approval by Submitting Entity.
May 7, 2013
3. Has this or a similar resolution been submitted to the House or Board previously?
No.
4.

What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
The proposed Resolution is consistent with and builds upon the cybersecurity
principles previously developed by the Task Force and adopted by the Board of
Governors in November 2012, especially Principle 3 (Legal and policy
environments must be modernized to stay ahead of or, at a minimum, keep pace with
technological advancements.) and Principle 4 (Privacy and civil liberties must
remain a priority when developing cybersecurity law and policy.) (see Board of
Governors resolution adopted in November 2012). The proposed Resolution is also
consistent with ABA Model Rule of Professional Conduct 1.6 (Confidentiality of
Information), which prohibits lawyers from revealing confidential client
information unless the client gives informed consent or one or more narrow

118
exceptions apply. In addition, the Resolution is generally consistent with and would
build upon other existing ABA policies (1) supporting the attorney-client privilege
and the work product doctrine and opposing governmental policies, practices, or
procedures that would erode those protections (see Resolution 111, adopted August
2005), and (2) opposing new federal agency regulations on lawyers engaged in the
practice of law where the effect would be to undermine the confidential lawyerclient relationship, the attorney-client privilege, or traditional state court regulation
of lawyers (see Board of Governors resolution adopted in October 2009).
5.

If this is a late report, what urgency exists which requires action at this meeting of
the House?
Not applicable.

6. Status of Legislation. (If applicable)

Not applicable.
7.

Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
In consultation with the ABA Governmental Affairs Office, Task Force leaders
would prepare letters to Congress and/or comment letters to relevant federal
agencies, and may meet with congressional and agency staff to urge adoption of
legislations or regulations consistent with the Resolution. Task Force leaders may
also reach out to law firms, bar associations, other legal groups, and the courts in
order to educate them about the growing problem of unauthorized, illegal intrusions
into the computer systems and networks utilized by lawyers and law firms and to
help them devise practical ways to protect confidential client information from such
intrusions.

8. Cost to the Association. (Both direct and indirect costs)

None.
9. Disclosure of Interest. (If applicable)
Not applicable.
10. Referrals.
The proposed Resolution and Report has been sent to the Chairs and staff liaisons of
each ABA Section, Division, Task Force, Standing Committee and Commission
represented in the ABA Cybersecurity Legal Task Force. They are: Section of
Administrative Law, Business Law, Center for Professional Responsibility, Criminal
Justice Section, Section of Individual Rights and Responsibilities, International Law,
Law Practice Management Section, Litigation, Science and Technology Law,

118
Special Committee on Disaster Response and Preparedness, Standing Committee on
Law and National Security, Standing Committee on Technology and Information
Systems, State and Local Government Law, Tort, Trial and Insurance Practice and
Public Utility, Communications and Transportation Law.
11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Stewart Baker
Partner, Steptoe & Johnson
1330 Connecticut Avenue, NW
Washington, DC 20036
(202) 429-6402
sbaker@steptoe.com
Judith Miller
Co-Chair, ABA Cybersecurity Legal Task Force
1050 Connecticut Avenue, N.W., Suite 400
Washington, D.C. 20036
(202) 341-8127 (cell)
Judith.miller3@gmail.com
Harvey Rishikof
Co-Chair, ABA Cybersecurity Legal Task Force
1050 Connecticut Avenue, N.W., Suite 400
Washington, D.C. 20036
(202) 288-2013 (cell)
rishikofh@me.com
Holly McMahon
Staff Director
ABA Cybersecurity Legal Task Force
1050 Connecticut Avenue, N.W., Suite 400
Washington, D.C. 20036
(202) 662-1035
Holly.mcmahon@americanbar.org
12. Contact Name and Address Information. (Who will present the report to the
House? Please include name, address, telephone number, cell phone number and
e-mail address.)
Judith Miller
Co-Chair, ABA Cybersecurity Legal Task Force
1050 Connecticut Avenue, N.W., Suite 400
Washington, D.C. 20036
(202) 341-8127 (cell)
Judith.miller3@gmail.com

118
Harvey Rishikof
Co-Chair, ABA Cybersecurity Legal Task Force
1050 Connecticut Avenue, N.W., Suite 400
Washington, D.C. 20036
(202) 288-2013
rishikofh@me.com

118
EXECUTIVE SUMMARY

1.

Summary of the Resolution

This Resolution condemns unauthorized, illegal intrusions by governments,
organizations, and individuals into the computer systems and networks utilized by
lawyers and law firms; urges federal, state, and other governmental bodies to
examine and, if necessary, amend existing laws to fight such intrusions; urges the
United States government to work with other nations and organizations in both
the public and private sectors to deter, prevent, and punish such intrusions;
supports governmental measures to combat such intrusions while opposing
governmental measures that would have the effect of eroding the attorney-client
privilege, the work product doctrine, the confidential lawyer-client relationship, or
traditional state court regulation of lawyers; urges lawyers and law firms to
review and comply with the provisions relating to the safeguarding of confidential
client information and keeping clients reasonably informed that are set forth in the
Model Rules of Professional Conduct, as amended in August 2012 and as adopted
in the jurisdictions applicable to their practice; and urges lawyers and law firms to
comply with other applicable state and federal laws and court rules relating to
data privacy and cybersecurity.

2.

Summary of the Issue that the Resolution Addresses

As American businesses and government agencies become increasingly reliant
upon network communications, they grow more vulnerable to information
security attacks. These attacks increasingly target both citizen information and
national security assets. Criminals, terrorists, and nation states all see potential
gains from attacking information systems. These threats to highly sensitive
information trigger concerns from the national security community, privacy
advocates, and industry leaders alike, and seriously threaten client confidentiality.

3.

Please Explain How the Proposed Policy Position will Address the Issue
By adopting the proposed Resolution, the ABA will be able to play a leading role
in urging the United States government and other governmental bodies to
examine, and if necessary, amend or supplement existing laws in order to
discourage, prevent, and punish malicious intrusions into lawyer and law firm
computer systems and networks, but only in a fashion that protects client
confidentiality, the attorney-client privilege, the larger confidential lawyer-client
relationship, and traditional state court regulation and oversight of lawyers and the
legal profession.

4.

Summary of Minority Views

The Cybersecurity Legal Task Force is unaware of any minority views.

Immigration Status for Victims of Workplace Crimes

Women make up 40% of the immigrant workforce. In the low wage labor force, women comprise
44% of low wage noncitizen workers and 32% of undocumented workers. This workshop will
explore options to prevent deportation of and to gain legal status for victims/survivors of workplace
crimes, focusing on the U visa and other immigration and labor-based remedies. It will address
issues of sexual violence in the workplace as well as other criminal and retaliatory violations faced
by undocumented low wage workers. The workshop will also discuss new developments in
administrative advocacy, common fact patterns, and tips on protecting low-wage immigrant
workers.
The workshop will introduce screening and outreach strategies to identify to immigrant victims of
workplace crime. It will identify common workplace crimes and explore the legal standards for a
U visa based on qualifying criminal activity under 8 U.S.C. 1101(a)(15)(U)(iii). The workshop
will include legal practice pointers, responding to Requests for Evidence, and emerging legal and
policy developments.
Presenters:
Sheerine Alemzadeh, Staff Attorney, Chicago Alliance Against Sexual Exploitation, Chicago, IL
Eunice Hyunhue Cho, Staff Attorney, Immigrant Justice Project, Southern Poverty Law Center,
Atlanta, GA
Sonia Parras Konrad, Attorney and Co-Director, ASISTA Immigrant Assistance, Des Moines, IA
Trisha K. Teofilo Olave, Legal Supervisor and BIA Accredited Representative, National Immigrant
Justice Center, Chicago, IL
Sheerine Alemzadeh is a staff attorney at the Chicago Alliance Against Sexual Exploitation, where
she seeks workplace justice for sexual assault survivors. She has represented undocumented
survivors of sexual violence in employment discrimination litigation, U-visa petitions, Civil No
Contact Order cases, and advocacy in the criminal justice system. Sheerine co-leads the Coalition
Against Workplace Sexual Violence, a group of Chicago-based rape crisis advocates, labor
organizers, attorneys, and government representatives working to improve community responses
to workplace sexual assault. She provides training to attorneys, government agencies, workers
centers, students, and community-based organizations on sexual assault, sex trafficking, and labor
rights. Sheerine graduated magna cum laude from the University of Pennsylvania Law School.
Prior to law school, Sheerine worked for the legal department of Tahirih Justice Center. Sheerine
has authored multiple law review articles on gender and labor law, including "Protecting the
Margins: Intersectional Strategies to Protecting Gender Outlaws from Workplace Harassment"
(N.Y.U. J. of Law & Social Change) and Baring Inequality: Revisiting the Legalization Debate
through the Lens of Strippers' Rights," (Mich. J. of Gender & the Law). She has also written for
media outlets such as the Huffington Post, Labor Notes, and the Chicago Reporter.

Eunice Hyunhye Cho is a Staff Attorney with the Immigrant Justice Project of Southern Poverty Law
Center in Georgia, where she focuses on immigrant rights litigation and advocacy, including issues
related to low-wage migrant workers. Previously, Eunice worked as a Staff Attorney for the
National Employment Law Project (NELP) in California, where she advocated for the rights of lowwage immigrant workers. She has also worked as a law clerk for Judge Kim McLane Wardlaw of
the U.S. Court of Appeals for the Ninth Circuit. Her recent publications include U Visas for
Victims of Workplace Crime: A Practice Manual, NELP (2014) and U Visa Protections for Victims
of Workplace Crime, Clearinghouse Review (2012). Eunice is a board member of Worksafe,
which works to protect the health and safety of low-wage workers, as well as ASISTA, a national
organization supporting advocates and attorneys working with immigrant survivors. Prior to law
school, Eunice was the Education Director at the National Network for Immigrant and Refugee
Rights. She is a long-time member of the National Immigration Project of the National Lawyers
Guild.
Sonia Parras Konrad has worked with immigrant survivors of domestic violence and sexual assault
for close to 20 years and is Co-Executive Director of ASISTA, a nationwide program that provides
immigration technical assistance to front line advocates and attorneys working with survivors of
gender-based violence. She is also in private practice at the Law Offices of Sonia Parras PLLC in
Des Moines, Iowa, and has represented more than 1,000 survivors in immigration cases. Sonia is a
frequent presenter at local and national conferences and serves as an adjunct professor of
immigration law at Drake University Law School. She is a board member of the National
Immigration Project of the National Lawyers Guild, as well as several other organizations dealing
with domestic and sexual violence. Sonia is also known as a national and international speaker
on womens rights, working in Peru, Guatemala, Mexico, Costa Rica and all over the USA.
Through her work Sonia strives to promote the organization and leadership of immigrant survivors
of domestic violence and sexual assault. She is the author of Rompiendo el Silencio (Breaking the
Silence), a manual for Latino community activists organizing against domestic violence and sexual
assault, published by Futures Without Violence, and Defensa y Promocin de la Mujer
Latina (Defense and Promotion of the Latina Woman) published by National Latino Alliance. She
is licensed to practice law in Spain, Iowa and in Federal Court.
Trisha K. Teofilo Olave is a Board of Immigration Appeals (BIA) accredited representative and a
legal supervisor for the Immigrant Legal Defense project of the National Immigrant Justice Center
(NIJC) in Chicago, Illinois. Trisha supervises the VAWA & U Visa Pro Bono Projects. Prior to
joining NIJC, Trisha was a BIA-accredited representative at World Relief-Chicago and Catholic
Charities of the Archdiocese of Galveston-Houston. While at Catholic Charities, she supervised
the Crime Victims Program, was the Violence Against Women Act (VAWA) coordinator and the
pro bono coordinator. Trisha also worked as the senior legal assistant for a private immigration
firm. She has participated in the VAWA/U Visa collaborative in Chicago since 2005. Trisha
graduated magna cum laude from Loyola University Chicago with an honors bachelor of arts
degree in political science and minors in Spanish and international studies.

o
o
o
o
o
o

APPENDIX A1

APPENDIX A1

MARCH 2014

The U Visa: A Potential Immigration Remedy for

Immigrant Workers Facing Labor Abuse
What is a U visa?
A U visa is a temporary non-immigrant status available to non-citizen victims of certain crimes. Congress
created the U visa as part of the Victims of Trafficking and Violence Prevention Act of 2000, in order to
strengthen the ability of law enforcement agencies to investigate and prosecute certain crimes against
immigrants and to offer protection to victims who fear cooperating with law enforcement due to their
immigration status.

What Are the Benefits of a U visa?

U visa holders are eligible for the following benefits:
Lawful status for up to 4 years;
Eligibility to adjust status to lawful permanent resident after 3 years;
Automatic grant of work authorization;
Derivative visas for qualifying family members.

What are the eligibility requirements for a U visa?

In order to be eligible for a U visa, an immigrant worker must:
1) Have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal
activity;
2) Possess information concerning the qualifying criminal activity;
3) Have been helpful, be helpful, or be likely to be helpful in the detection, investigation, or prosecution of the
qualifying criminal activity;1
4) Show that the qualifying criminal activity violated a local, state, or federal law, or have occurred in the United
States.2

What constitutes a qualifying criminal activity?

U visa regulations identify 28 categories of qualifying criminal activity (QCAs) and any other substantially similar
criminal activity as eligible for certification.3 Advocates should identify violations of local, state, or federal
statutes that may correspond to the qualifying criminal activity when seeking certification. Law enforcement
agencies may also certify U visa petitions for attempt, conspiracy, or solicitation of the qualifying criminal activity.

8 C.F.R. 214.14(a)(5) defines investigation or prosecution of a qualifying crime or criminal activity as referring to the detection or investigation of a
qualifying crime or criminal activity, as well as to the prosecution, conviction, or sentencing of the perpetrator of the qualifying crime or criminal activity.
Id. (emphasis added); see also 8 C.F.R. 214.14(c)(2)(i).
2

8 C.F.R. 214.14(b)(4).

8 C.F.R. 214.14(a)(9).

National Employment Law Project | 75 Maiden Lane, Suite 601, New York, NY 10038 | www.nelp.org
APPENDIX A2

The U Visa: A Potential Remedy for Immigrant Workers

Qualifying crimes that constitute criminal activity include:

Abduction
Abusive sexual contact
Being held hostage
Blackmail
Domestic violence
Extortion
False imprisonment
Felonious assault
Female genital mutilation
Fraud in foreign labor contracting

Incest
Involuntary servitude
Kidnapping
Manslaughter
Murder
Obstruction of justice
Peonage
Perjury
Prostitution

Rape
Sexual assault
Sexual exploitation
Slave trade
Stalking
Torture
Trafficking
Unlawful criminal restraint
Witness tampering

What are some examples of worker abuse that may constitute qualifying criminal
activity?
Below is a list of qualifying criminal activity and corresponding fact patterns that have received certification.
Please note that statutory requirements and elements of offenses may vary by jurisdiction.

Felonious Assault

Abusive touching, battery, beating, or use of a weapon by employer resulting in substantial mental or
physical harm.

Fraud in Foreign Labor Contracting

False representations by employers to contracted workers on conditions of employment, housing,

fees to labor brokers, food and transportation, ability to work at other places of employment, and
other material aspects of the work arrangement.

Involuntary Servitude/Peonage/Labor Trafficking

Threats of physical, psychological, financial or reputational restraint or harm by employer that

compels an individual to continue work;
Threats to contact local law enforcement or immigration authorities by employer in order to
compel continued work;
Confiscation or withholding of identity documents, passports, or other travel documents by
employer;
Supporting facts could include: wage theft; inadequate food, housing, medical care or clothing;
lengthy hours; verbal or physical abuse; restricted contact with others; use of locks and fences to
restrict workers mobility (see also false imprisonment/unlawful criminal restraint).4

Obstruction of Justice/Perjury/Witness Tampering

Evidence of visa fraud, false statements in seeking certification for labor, misuse of visas by employer;
fraudulent wage and hour records;
Instructions to lie to law enforcement investigations by employer;
Intimidation of workers who seek to comply with law enforcement investigations or affirmative
complaints against an employer, including threats to contact local law enforcement or immigration
authorities.5

Involuntary servitude includes a condition of servitude induced by any scheme intended to cause a person to believe that, if the person did not enter into or continue in such
condition, that person or another person would suffer serious harm or physical restraint; . . . or the abuse or threatened abuse of the legal process. 22 U.S.C. 7102(5). See
also 18 U.S.C. 1589(c)(1)-(2) (definition of serious harm and abuse of the law or legal process).
4

National Employment Law Project | 75 Maiden Lane, Suite 601, New York, NY 10038 | www.nelp.org
APPENDIX A2

The U Visa: A Potential Remedy for Immigrant Workers

Abusive Sexual Contact/Rape/Sexual Assault/Sexual exploitation

Unwelcome sexual contact, rape, assault, or exploitation by co-workers, employers, or clients.

What government agencies have the authority to certify a U Visa petition?

Federal, state, or local law enforcement agencies, prosecutors, and judges may certify a U visa petition. U visa
regulations specify that agencies such as the Equal Employment Opportunity Commission and the Department of
Labor, which have criminal investigative jurisdiction in their respective areas of expertise, are valid certifying
agencies.6 Federal judges have also certified U visa petitions in the context of labor abuse.7
Several labor enforcement agencies have released certification protocol for U visas. These agencies include the
U.S. Department of Labor (US DOL), the Equal Employment Opportunity Commission (EEOC), the National
Labor Relations Board (NLRB), as well as the New York Department of Labor (NY DOL), and the California
Department of Fair Housing and Employment (CA DFEH). Other agencies, such as the California Division of
Labor Standards Enforcement (CA DLSE), have indicated plans to issue certification protocol. In addition, local,
state, and federal law enforcement agencies, prosecutors, and judges have certified U visa petitions for
workplace-related crimes. Copies of agency protocols are available at http://www.just-pay.org.

Certifying
Labor Agency

QCAs Certified

Other Requirements

Requests for Certification

U.S. Department of
Labor

Involuntary servitude,
peonage, trafficking,
obstruction of justice,
witness tampering

-Authority to certify is limited

to Wage and Hour Division
(WHD)

-Request for certification,

detailed description of facts and
relevant case law/statutes should
be submitted to one of five
Regional U Visa Coordinators

-Considers whether QCA arises

in context of employment and
related allegation of violation of
law enforced by DOL WHD
-In-person interview of applicant
required

U.S. Equal
Employment
Opportunity
Commission

All QCAs specified by

statute

-QCA must be related to

unlawful employment
discrimination investigated by
EEOC;
-Interview of applicant required

-Request for certification,

including I-918B, detailed
description of facts and relevant
case law/statutes should be
submitted to EEOC Regional
Attorney

8 C.F.R. 214.14(a)(14)(ii) specifies that a petitioner may be considered a victim of the crimes of witness tampering, obstruction of justice, or perjury if s/he has been directly
and proximately harmed by the perpetrator, and if there are reasonable grounds to conclude that the perpetrator committed the crime as a means to avoid or frustrate
investigation or prosecution for other criminal activity, or to further abuse, undue control, or exploitation through manipulation of the legal system.
5

8 C.F.R. 214.14(a)(2).

See, e.g. Garcia v. Audubon Cmty. Mgmt., No. 08-1291, 2008 WL 1774584 (E.D. La. Apr. 15, 2008).

National Employment Law Project | 75 Maiden Lane, Suite 601, New York, NY 10038 | www.nelp.org
APPENDIX A2

The U Visa: A Potential Remedy for Immigrant Workers

National Labor
Relations Board

All QCAs specified by

statute

-QCA must be related to an

unfair labor practice under
investigation by NLRB

-NLRB regional offices should

contact Deputy Assistant General
Counsel Aaron Karsh,
aaron.karsh@nlrb.org, if
approached with request for
certification.

California
Department of Fair
Employment and
Housing

Sexual assault, sexual

exploitation, abusive sexual
contact, rape, trafficking,
domestic violence, murder,
manslaughter, abduction,
extortion, torture, incest,
prostitution

-DFEH must conduct an ongoing

investigation into a FEHA or
Ralph Act claim

-Not specified in protocol.

California Division
of Labor Standards
Enforcement

All QCAs specified by

statute

-QCA must be detected or

investigated in the course of
DLSEs enforcement efforts

-Request for certification,

including draft I-918B, DLSE case
status and case number, and
description of QCA and
helpfulness of victim.

Illinois Department
of Labor

All QCAs specified by

statute

-IDOL must have jurisdiction to

investigate charge or is
conducting an ongoing
investigation

-Oral or written request to

IDOL employee; draft I-918B,
and cover letter describing
request.

New York
Department of
Labor

All QCAs specified by

statute

-NY DOL must have jurisdiction

to investigate case (allegation of
NY state labor law violation);

-Request for certification,

including I-918B, NY DOL claim
number and names of staff
involved in claim, and other
relevant information should be
submitted to NY Labor
Commissioner.

-Petitioner must be a victim of a

QCA

How do you petition for a U visa?

In order to successfully petition for a U visa, the applicant must first obtain certification from a law enforcement
agency stating that he or she is a victim and has been, is currently, or likely to be helpful in the detection,
investigation, or prosecution of a qualifying criminal activity. The certification form, Form I-918 Supplement B,
must be signed by a supervisory agent from the certifying agency.
After obtaining certification, the applicant must then submit a complete U visa petition to U.S. Customs and
Immigration Services (USCIS), which has authority to grant the U visa. The petition should include:
Form I-918 Petition for U Nonimmigrant Status
Form I-918B U Nonimmigrant Status Certification
Filing Fee ($585) and biometrics fee ($80) or fee waiver
Supplemental evidence: personal statement, other evidence of abuse/injury
Copy of identity page of applicants passport (or request for waiver)
Form I-192 Application for Advance Permission to Enter as Non-Immigrant
Form G-28 Notice of Entry as Appearance of Attorney or Accredited Representative
Form I-918A Petition for Qualifying Family Members of U-1 Recipient

National Employment Law Project | 75 Maiden Lane, Suite 601, New York, NY 10038 | www.nelp.org
APPENDIX A2

The U Visa: A Potential Remedy for Immigrant Workers

How can U visas affect immigrant worker organizing?

The successful grant of a U visa may support organizing by providing relief to immigrant leaders willing to call
attention to workplace abuse, and by strengthening investigation and enforcement of labor laws. Employment
authorization gained through a U visa may also provide plaintiffs with eligibility for damages in private lawsuits.
However, the highly individualized nature of U visa relief may pose challenges in broader organizing contexts
where all workers may not have encountered similar treatment by an abusive employer.
Legislative proposals, including the Protect Our Workers from Exploitation and Retaliation Act (POWER Act)
(S 3207), introduced by Senator Robert Menendez in 2010, could provide key labor protections for immigrants
who face retaliation by employers. Specifically, the POWER Act expands U visa protections to workers involved
in civil workplace claims and who fear or have received threats of force, physical restraint, or harm in retaliation
by employers.

Additional resources on U visas:

To join a national listserv dedicated to labor-related U visa advocacy, nelplaborexploitation@yahoogroups.com, please contact Eunice Cho at echo@nelp.org.

Relevant statutory and regulatory provisions:

o Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, div. A
1513(a), 114 Stat. 1464, 1533 (2000) (detailing Congresss findings and purpose for U
visa statute);
o New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant
status; Interim Rule, 72 Fed. Reg. 53,014 (Sept. 17, 2007) (to be codified at 8 C.F.R. pts.
103, 212, 214, 248, 274a, and 299).
o Alien Victims of Certain Qualifying Criminal Activity, 8 C.F.R. 214.14.
o Agency certification protocol, including the U.S. DOL, EEOC, NLRB, CA DFEH, and NY
DOL are located at the National Wage and Hour Clearinghouse, located at:
http://www.just-pay.org.

U visa practice guides:

o Sameera Hafitz, et al., U Visa Certification Tool Kit for Judges and Magistrates (2010),
available at: http://iwp.legalmomentum.org/immigration/u-visa/tools.
o Sally Kinoshita, Susan Bowyer, and Catherine Ward-Seitz, THE U VISA: OBTAINING
STATUS FOR IMMIGRANT VICTIMS OF CRIME (2010). To order, visit: www.ilrc.org.
o Susana Martinez, et al., Help for Undocumented Victims of Crime, 44 CLEARINGHOUSE REV.
129 (2010).
o Leticia M. Saucedo, A New U: Organizing Victims and Protecting Immigrant Workers, 42 U.
RICH. L. REV. 891 (2008).
o Suzanne B. Seltzer, et al., IMMIGRATION RELIEF FOR CRIME VICTIMS: THE U VISA MANUAL
(2010), available at: http://www.nsvrc.org.
o Andrew Turner, et al., Case of First Impression: Federal Judge in Civil Case May Certify U Visa
Applications of Undocumented Immigrant Human Trafficking Victims, 43 CLEARINGHOUSE
REV. 510 (2009).

For more information on U visas for victims of labor abuse, please contact:

National Employment Law Project | 75 Maiden Lane, Suite 601, New York, NY 10038 | www.nelp.org
APPENDIX A2

The U Visa: A Potential Remedy for Immigrant Workers

Eunice Cho, Staff Attorney | echo@nelp.org | 510-663-5707

Rebecca Smith, Deputy Director | rsmith@nelp.org | 206-324-4000

National Employment Law Project | 75 Maiden Lane, Suite 601, New York, NY 10038 | www.nelp.org
APPENDIX A2

The U Visa: How Can It Protect

Immigrant Workers?
All immigrant workersincluding documented and undocumented workersare protected by employment
laws in the United States. Under these laws, all workers should be able to work in safe working conditions,
receive minimum wage and overtime pay, and be free from harassment and abuse by employers. Many workers
are afraid to report crimes to authorities because they fear detention or deportation due to their status.
However, Congress has created the U visa to help undocumented victims of crime to come forward.
To qualify for a U visa, you must:
1) Have suffered substantial physical or mental abuse as a result of having been a victim of a crime;
2) Have credible and reliable information about the crime;
3) Have been helpful, be helpful, or be likely to be helpful in the detection, investigation, or prosecution of the
crime;
4) Show that the crime occurred in the United States.
What are the benefits of a U visa?
Temporary legal status and work permit for up to 4 years;
Eligibility to adjust status to lawful permanent resident after 3 years;
Temporary residency and work permit for some family members:
o Spouse, children, unmarried siblings under 18, and parents if you are younger than 21;
o Spouse and unmarried children under 21 if you are older than 21;
o Family members do not have to be in the U.S. when you apply for a U visa.
What kinds of crimes qualify?
Several crimes, including those that take place in the workplace, qualify for a U visa. These include:
Abusive sexual contact, rape, sexual assault, or sexual exploitation
Felonious assault: abusive touching, beating, or use of a weapon that causes serious harm. This may
include touching of a sexual nature.
Extortion: an employer may obtain something of valueincluding money, by using threats or force
Involuntary servitude or peonage: An employer makes threats, including threats to contact immigration
authorities, to force you to continue to work.
Obstruction of justice, perjury, or witness tampering: An employer may instruct you to lie to law
enforcement investigations, intimidate workers from filing complaints, or force you to destroy or hide
evidence of a crime.
The U visa application process:
To apply for a U visa,
1)You should meet with an attorney for an initial screening
2) Your attorney will contact a certifying agency (for example, the Equal Employment Opportunity
Commission (EEOC), Department of Labor (DOL)) or a judge to provide a document that proves a
crime took place and that you are helping or are likely to help in the investigation or prosecution of a
crime.
3) Your attorney will submit your petition for a U visa based on the information filed. There is no fee
for this.
4) If you or a family member is not admissible (for example, if you entered the country without
authorization or have a criminal record), you will have to file a waiver. You will have to pay a fee of
$585, but it can be waived if you earn very little.

APPENDIX A3

La Visa U : Cmo protege a los

trabajadores inmigrantes?
Todos los trabajadores inmigrantes, inclusive los trabajadores documentados e indocumentados estn protegidos

por las leyes de empleo en los Estados Unidos. Bajo estas leyes, todos los trabajadores deben poder trabajar en
condiciones seguras de trabajo, recibir el salario mnimo y pago de tiempo extra y estar libre de acoso y abuso por
parte de los empleadores. Muchos trabajadores tienen miedo a denunciar los delitos, incluyendo el abuso y el acoso,
que pueden pasar en el trabajo a las autoridades, porque temen detencin o deportacin debido a su condicin. Sin
embargo, el Congreso cre la visa U para ayudar a los indocumentados y las indocumentadas vctimas de delitos.
Para calificar para una visa U, usted debe:
1) Haber sufrido abuso fsico y mental como consecuencia de haber sido vctima de un delito;
2) Tener informacin creble y confiable acerca del delito;
3) Haber sido til, ser til o pudiera ser til en la deteccin, la investigacin o el enjuiciamiento del delito;
4) Mostrar que el crimen paso en los Estados Unidos.
Cules son los beneficios de la visa U?
Estatus legal temporal y permiso de trabajo de hasta 4 aos;
Elegibilidad para ajustar estatus a residente permanente legal despus de 3 aos;
Autorizacin de trabajo y residencia temporal de algunos miembros de la familia:
o Cnyuge, hijos, hermanos solteros menores de 18 aos y los padres si es menor de 21;
o Cnyuge e hijos solteros menores de 21 si es mayor de 21;
o Miembros de la familia no tienen que estar en los Estados Unidos al aplicar para una visa U.

Qu tipos de crmenes califican?

Varios crmenes, incluyendo aquellas que se realizan en el lugar de trabajo, califican para una visa U. Estos incluyen:
o Servidumbre involuntaria o peonaje: un empleador hace amenazas, incluida la amenaza de ponerse en
contacto con las autoridades de inmigracin, para forzarlo a seguir trabajando.
o Asalto criminal: tocar abusivo, paliza o uso de un arma que provoca graves daos. Esto puede incluir contacto
de naturaleza sexual.
o Contacto sexual abusivo, violacin, agresin sexual o explotacin sexual.
o Extorcin: un empleador puede obtener algo de valor incluyendo dinero, mediante el uso de amenazas o
la fuerza
o Obstruccin de la justicia, perjurio o testigos: un empleador lo dirige a mentir en investigaciones policiales,
intimida a los trabajadores de presentar quejas o lo forza a destruir u ocultar la evidencia de un crimen.
El proceso de solicitud de la visa U:
Para solicitar una visa U,
1) Usted debe reunirse con un abogado para una evaluacin inicial;
2) Su abogado se pone en contacto con una agencia de certificacin (por ejemplo, la Comisin de Oportunidad Igual
de Empleo (EEOC), el Departamento de Labor (DOL)) o un juez, para que estos proporcionen un documento que
demuestra que un delito tuvo lugar y que usted est ayudando o es probable que ayude en la investigacin o el
enjuiciamiento de un delito;
3) Su abogado presenta su peticin para la visa U basndose en la informacin presentada. No hay ninguna cuota para
ello;
4) Si usted o un miembro de la familia no es admisible (por ejemplo, si entraron al pas sin autorizacin o si tiene
antecedentes penales), tendr que presentar una renuncia. Usted tendr que pagar una cuota de $585, pero si usted
gana muy poco, lo pueden dejar hacer sin costo.

APPENDIX A3

U VISA INTAKE FORM (SCREENING FOR WORKPLACE CRIMES)

BASIC INFORMATION/Informacin Bsica
Last Name/Apellidos completes: ___________________________________________________
First Name/Nombre: ____________________________________________________________
Other names used (including maiden name)/Otro nombres que Usted ha usado (incluso nombre de
soltero/a): _______________________________________________________________________
Address/Domicilio: _____________________________________________________________________
City/Ciudad: _______________ State/Estado: _____________ Zip/Codigo postal: __________________
Telephone/Telefono:
(home/casa)______________________________(cell)______________________________
Email: ______________________________________________________________________
Emergency contact/contacto de emergencia: (name/nombre)___________________________
Tel: ___________________________________________________
Date of Birth/Fecha de nacimiento: __________________________________________________
City and country of birth/ciudad y pas de nacimiento: __________________________________
Country of citizenship/pas de ciudadana: ______________________________________________
Social Security number (if you have)/ nmero de seguro social (si tiene): __________________________
Alien registration number (if you have)/ nmero de inmigracion (si tiene): _________________________
Primary language/Primer idioma: ________________________________________________________
English Proficiency/Habilidad con Ingles:
__Spanish only/Solamente espaol

___English/Spanish

___English only/Solamente Ingls

Current employer/empleyador presente: ________________________________________________

Monthly income/ingresos mensual: $___________________________________________________
Number of adults in the household/ nmero de adultos en el hogar: _________________
Number of children in household/ nmero de nios en el hogar: _________________
Are you receiving any public benefits? Est recibiendo beneficios pblicos?
__________________________________________________________________________________

APPENDIX A4

CLIENTS NAME: ___________________________________________________________

INTERVIEWERS NAME: _______________________________

DATE: ________________

FAMILY INFORMATION
How old are you? _______________
Are you married?

Do you have any children? Yes No

Single / Married / Separated / Divorced / Widowed

CHILDREN
If you have children, please provide us with the following information:
Childs name

Childs date of
birth

Childs country
of birth

Childs current
location

Childs marital
status

Childs
Immigration
status
undocumented
conditional
resident
permanent
resident
U.S. Citizen
undocumented
conditional
resident
permanent
resident
U.S. Citizen
undocumented
conditional
resident
permanent
resident
U.S. Citizen
undocumented
conditional
resident
permanent
resident
U.S. Citizen

Would you like to obtain immigration status for any children under the age of 21 who are not already
U.S. citizens? Yes
No

PARENTS
If you are under the age of 21, would you like to obtain immigration status for your parents? Yes No

APPENDIX A4

If yes, please provide the following information:

Parents name Parents date
Parents
of birth
country of birth

Parents
current
location

Parents
marital status

Parents
Immigration
status
undocumented
conditional
resident
permanent
resident
U.S. Citizen
undocumented
conditional
resident
permanent
resident
U.S. Citizen

SIBLINGS
If you are under the age of 21, would you like to obtain immigration status for your siblings who are
under 18? Yes No
If yes, please provide us with the following information:
Siblings name
Siblings date
Siblings
Siblings
of birth
country of birth current
location

APPENDIX A4

Siblings
marital status

Siblings
Immigration
status
undocumented
conditional
resident
permanent
resident
U.S. Citizen
undocumented
conditional
resident
permanent
resident
U.S. Citizen
undocumented
conditional
resident
permanent
resident
U.S. Citizen

SPOUSE
Are you married?
Yes
No
If yes, what was the date of your marriage? ________________
Is the person who committed a crime against you your spouse? Yes
No
If no, do you want to obtain immigration status for your spouse?
Yes
No
Is your spouse also applying for a U visa?
Yes
No
If no, what is your spouses name? ______________________
Spouses date of birth? ________________ Spouses country of birth? _______________________
Spouses current location? _________________________________________________________
Spouses current immigration status: _________________________________________________
A U visa application also allows you to file a petition and obtain immigration status for the person who is
your spouse at the time of the filing of the petition. Would you plan to get married and obtain status on
behalf of your spouse? Yes
No
IMMIGRATION HISTORY
When did you first enter the United States? _________________________________________________
How did you enter the United States? ______________________________________________________
Where did you first enter the United States? ________________________________________________
If you entered with a visa, where was it issued? ___________________ Expiration date? ____________
(please make copy of visa and I-94 if available and add to file)
Do you have a passport? Yes
No
(If yes, please copy and add to file)
Name on passport: ________________________________________________________
If yes, what is the issuing country? ________________ Passport No. ____________________
Expiration date: ___________________________
Have you ever had any immigration petitions filed on your behalf?

Yes

No

If so, which ones? When?

_____________________________________________________________________________________
_____________________________________________________________________________________
What immigration documents do you have? (Please list, copy, and include in file):
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Have you ever had a work authorization document (permiso de trabajo)?

Yes

No

Have you ever worked in the U.S. without permission?

Have you ever used false documents in order to work in the U.S.?

Yes
Yes

No
No

APPENDIX A4

Have you ever pretended to be a U.S. citizen?

Yes

No

Did you use false documents to enter the U.S.?

If so, what kind of false documents did you use?
False social security card
False residency card

Yes

No

Have you left the U.S. since your first entry?

If yes, please list the following information:
Departure date/country

Yes

Arrival to U.S/date

False birth certificate

Other: ________________________
No

Purpose for trip

Have you ever had any encounters with immigration authorities?

Yes
No
If yes, please explain:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Have you ever been (circle):
Fingerprinted
Picture taken by immigration
Asked to sign papers by immigration
Seen an immigration judge or criminal judge
Been arrested or detained at the border or airport
If yes, please explain:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________

Have you ever appeared before an immigration judge? Yes

No
If yes, when? ________________________________ Where? ________________________________
What happened at the end of proceedings?
____________________________________________________________________________________

Have you ever left the U.S. following a deportation order?

Yes
No
If yes, when? ________________________________________________________________________

APPENDIX A4

Do you have any U.S. citizen or legal permanent resident relatives?

Yes
No
If so, what is your relationship to them? What is their status?
_____________________________________________________________________________________
_____________________________________________________________________________________

Have you ever overstayed a visa/I-94? Yes

No

Have you ever been denied a visa or denied entry into the U.S.?

Yes

No

Have you ever lied or stated in writing that you are a U.S. citizen?

Yes

No

Have you ever knowingly helped anyone to enter the U.S. illegally?

Yes

No

Have you ever voted in a U.S. election?

Yes

No

Have you or ever received any public benefits?

If so, what kind?
General assistance/asistencia general
Food stamps/estampillas de comida
Social security/seguro social
SSDI
Disability/Incapacidad

Yes

No

CRIMINAL HISTORY
Have you ever been arrested? Yes
No
If yes, what were you charged with? ___________________________________
Where? ______________________________________________________________________
When? _______________________________________________________________________
Were you convicted? Yes
No
If so, what was the punishment? _________________________________________________
(Please copy any relevant documents)

FEE WAIVER INFORMATION

Are you currently working?

Yes

No

If yes, how much do you earn per month? $_______________

If not, how do you support yourself? _______________________________________________
Are you or your children receiving any public assistance?
Yes
No
If so, in what amount? ____________________________________________________________
Are you receiving any child support, unemployment, social security, or other income? Yes
No
If so, please describe: _______________________________________________________________

APPENDIX A4

INFORMATION ABOUT CRIMINAL ACTIVITY IN WORKPLACE

When did you start working at your job? ______________________________________

Are you still working there?

Yes

No

If no, what was your last day? ___________

What kind of work did you do? ____________________________________

What was your job title? _____________________________________________________
Who were your supervisors? _________________________________________________
Where did you work/address/unit? ___________________________________________
How many days did you normally work per week? _________________________________
How many hours did you work per day? __________________________________________
Were you free to decide to work overtime? Did you get paid overtime?
__________________________________________________________________________
How much were you paid? ____________________________________________________
Were you paid in cash, check, or other? __________________________________________
Were you paid for all of your work? If not, what did you do? What happened? ____________
_____________________________________________________________________________
Did you get pay stubs? Were they correct? _________________________________________
If they were not correct, did you ever ask about it? If so, what happened? __________________
Were you ever forced to buy papers or change papers to work? __________________________
Were you able to take vacation time? ______________________________________________
Do you have copies of your pay stubs, or records of your hours worked? ___________________
LAW ENFORCEMENT COOPERATION/OBSTRUCTION OF JUSTICE, WITNESS TAMPERING, PERJURY
Have you ever filed a complaint with the Department of Labor, Equal Employment Opportunity
Commission, National Labor Relations Board, or state department of labor? Have you ever sued your
employer?

If so, why and when? If not, would you be willing to do so?

APPENDIX A4

Has your employer ever told you to lie about conditions at work to government officials?

Has your employer filed false documents with the government (i.e. false records, H2A applications,
etc.)?

Has your employer ever threatened you in response to complaints about work conditions?

QUALIFYING CRIMINAL ACTIVITY: SCREENING FOR EXTORTION, ASSAULT, INVOLUNTARY SERVITUDE,

TRAFFICKING, PEONAGE, UNLAWFUL CRIMINAL RESTRAINT
When you worked at your job, were you ever treated badly by a supervisor or manager? Yes
If so, what was his/her name? How did your employer treat you badly?

No

Did any of your managers/employers ever make degrading or discriminatory comments to you? Did he
or she ever say anything cruel, humiliating, or embarrassing? If so, what kind of comments were made?

Did a manager or employer ever threaten you in any way?

Did he or she ever threaten violence?

Did he or she ever threaten to report you to immigration, get you arrested, fire you, hurt you
economically, or cause you legal problems?

Did he or she ever threaten to destroy your reputation?

Did a manager or employer ever destroy or threaten to destroy your documents, or anything of yours?

APPENDIX A4

Did a manager or employer ever make any threats to harm a family member or anyone else you know?

Did you ever see a manager or employer ever make degrading comments, threaten, hit, punch, injure,
or mistreat a co-worker in any way? If so, did it make you scared?

Did a manager or employer ever hit, punch, or injure you in any way? If so, when and where? What
happened?

If so, why did he or she hit you? Is one of the things s/he wanted to do is to have him pay you money?

Were you ever asked to make payments to your manager/employer? Why? When? For how much?

Have you ever owed money to your employer? If so, why? How much? Did you pay this off? What
happened if you did not pay your employer?

Did your employer ever bar you from taking a break?

Did your employer ever prevent you from using the bathroom?

Did you ever feel that you could not leave your work because of your employer?

Did your employer ever limit you from leaving work, or limiting access to transportation?

APPENDIX A4

Did your employer ever make you afraid to take time off for vacation or if you or a member of your
family was sick?

Did you ever try to leave your position or change positions? If so, what happened?

If you were physically injured, did you ever go to the doctor or hospital? If so, do you have records?
Did you take pictures or tell anyone else about what happened?

Did you live on the premises of your work? Did your employer provide you housing or food? If so, what
were the conditions like? If you lived on the premises, did your employer ever threaten to evict you?

Did you ever suffer from lack of food, housing, medical care, clothing, or other basic needs because of
your employers mistreatment?

Sexual misconduct
Did your employer ever make comments about your clothing, behavior, or your body? Did he or she
ever make sexual or sex-based jokes? If yes, what happened? Where and when?

Did your employer ever look at you in a sexual manner or make derogatory gestures or facial
expressions of a sexual nature?

Did a manager or employer ever ask for sexual favors or ask you out repeatedly? Did he or she ever ask
you to have sex with him or her, spread rumors, or make sexual comments? If so, what happened?
Where did it happen, and when?

APPENDIX A4

Did a manager or employer ever touch you inappropriately in a sexual way? Did he or she ever touch
your clothes, kiss, hug, or pat you in a way that made you feel uncomfortable? If so, what happened?
Where did it happen, and when?

Did a manager or employer ever force you to have unwanted sex? If so, what happened? Where, and
when?

Did you ever report any of this mistreatment or complain to your supervisors? If so, what happened?

Did you ever feel scared, threatened, or harmed by an employer or manager outside of work?

Were you afraid of your employer or manager? Why? Did he or she ever say anything to you that made
you scared?

Did you ever take pictures or documentation of your injury or mistreatment? (Police records, hospital
records, photos?)

When you were having a difficult time at your job, did you ever talk to anyone about your difficulty, and
how it was making you feel? If so, who? Do you think they would be willing to support your application?

APPENDIX A4

Emotional impact
Did things ever get so bad that you ever:

0= nunca / never
1= una o dos veces / 1 or 2
times
2= varias veces / sometimes
3=muchas veces / many times
Please describe:

Felt like crying

Felt like quitting the job but couldnt

Complained to other people about the problems

Talked to a counselor, pastor, or other professional

Used alcohol or drugs
Felt angry
Felt helpless
Felt sick
Couldnt sleep well or slept too much
Sought help from someone
I was bothered by things that usually did not bother me
I did not want to eat, had a poor appetite
I could not feel better even with the help of my family or friends
I had problems thinking about what I was doing
I was depressed
I felt that everything I did was a great effort
Thought that my life is a failure
I was fearful

APPENDIX A4

I talked less than usual

I felt lonely
I felt that people did not like me/got along with me
Felt pain in my bodyhead, neck, shoulders, etc. that I did not
normally feel
Anything else?

APPENDIX A4

U.S. Department of Labor Wage and Hour Division (WHD) FIELD...

1 of 4

Subscribe to E-mail Updates

http://www.dol.gov/whd/FieldBulletins/fab2011_1.htm

All DOL

WHD Advanced Search

A to Z | Site Map | FAQs | Forms | About DOL | Contact Us | Espaol

Wage and Hour Division

DOL Home > WHD > FIELD ASSISTANCE BULLETIN > 2011-1

Wage and Hour Division (WHD)

U.S. Department of Labor
Wage & Hour Division
Washington D.C. 20210
April 28, 2011
FIELD ASSISTANCE BULLETIN NO. 2011-1
MEMORANDUM FOR:

REGIONAL ADMINISTRATORS
DISTRICT DIRECTORS

FROM:

NANCY J. LEPPINK
Acting Administrator

SUBJECT:

CERTIFICATION OF SUPPLEMENT B FORMS OF U NONIMMIGRANT VISA

APPLICATIONS

This memorandum discusses the guidelines and procedures the Wage and Hour Division (WHD) will follow to determine when and whether to
complete and certify Supplement B of a I-918 petition for U Visa Nonimmigrant Visa Status. The Secretary of Labor has the authority to complete and
certify Supplement B forms for U Nonimmigrant Visas (U Visas) under Section 1513(b) of the Victims of Trafficking and Violence Protection Act of
2000, as amended, 8 U.S.C. 1101(a)(15)(U) and related Department of Homeland Security regulations, 8 C.F.R. 214.14. The Secretarys Order
05-2010 delegated this authority to the WHD Administrator. This authority is being further delegated to the WHD Regional Administrators. WHD
Regional and District Office representatives will work closely with Solicitor of Labor Regional Office (RSOL) attorneys to gather, document and
review the facts and information to determine whether to complete and certify Supplement B form of a I-918 U-Visa petition.
WHD will regularly evaluate these protocols for effectiveness and efficiency and may revise as it deems necessary.
I. Background
A. Statute
Under Section 1513(b) of the Victims of Trafficking and Violence Protection Act of 2000, as amended, 8 U.S.C. 1101(a)(15)(U), victims of qualifying
criminal activities (QCAs) who have suffered substantial physical or mental abuse may apply for a U Visa if they are willing to assist law enforcement
or other officials in the investigation or prosecution of those crimes. The U.S. Citizenship and Immigration Service (USCIS) has sole jurisdiction over all
petitions for U nonimmigrant status. See 8 C.F.R. 214.14(c). 1 Individuals who receive U Visas from USCIS may be authorized to stay in the United
States for up to 4 years. See 8 C.F.R. 214.14(g). USCIS will issue an Employment Authorization Document (EAD) to individuals who are granted a U
Visa. See 8 C.F.R. 214.14(c)(7) and (f)(7).
B. Form I-918
Nonimmigrants seeking U Visas must submit a completed Form I-918, Petition for U Nonimmigrant Status to USCIS for consideration. Supplement B of
Form I-918 is to be completed by an agency such as the Department of Labor (DOL) that is authorized to complete and certify Supplement B forms as
a result of its responsibility for the detection, investigation, prosecution, conviction, or sentencing of qualifying criminal activity. See 8 C.F.R.
214.14(c)(2)(i); Instructions for I-918, Supplement B at 2. In completing Supplement B, the agency must certify that the individual submitting the Form
I-918 is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that activity. See
8 C.F.R. 214.14(c)(2). 2 An agencys decision to complete and certify a Supplement B form is entirely discretionary. See Form I-918, Supplement B
at 1. The applicant is responsible for submitting the entire Form I-918, including Supplement B, to USCIS for review and approval. See 8 C.F.R.
214.14(c). The decision whether to approve or deny the Form I-918 Petition rests solely with USCIS.
C. Applicable Regulations
Department of Homeland Security (DHS) regulations specify that Federal or local law enforcement agencies, or other authorities that have
responsibility for the investigation or prosecution of a qualifying crime or criminal activity may complete and certify Supplement B of Form I-918.
See 8 C.F.R. 214.14(a)(2). The regulations explicitly state that this includes the DOL, as well as other agencies such as the Equal Employment
Opportunity Commission (EEOC). Id. Further, the regulations define investigation or prosecution to include the detection or investigation of a
qualifying crime or criminal activity. See 8 C.F.R. 214.14(a)(5) (emphasis added). WHD will consider exercising its authority to certify Supplement
B forms in cases in which it has detected a QCA and each of the following conditions are met: (1) the detected QCA is involuntary servitude, peonage,
trafficking, obstruction of justice or witness tampering; (2) the alleged QCA arises in the context of a work environment or an employment
relationship; and (3) there is a related, credible allegation of a violation of a law that WHD enforces. The procedures WHD and SOL will follow to
determine whether to complete and certify a Supplement B form are outlined below.

APPENDIX B1

9/15/2011 1:24 PM

U.S. Department of Labor Wage and Hour Division (WHD) FIELD...

2 of 4

http://www.dol.gov/whd/FieldBulletins/fab2011_1.htm

II. WHDs Procedures

Each WHD Regional Administrator will designate a representative to serve as the coordinator for U Visa petitions for that region. Likewise, each
Regional Solicitor will designate one attorney to coordinate U Visa petition issues for that SOL region. This will enable DOL to develop the necessary
expertise to effectively and efficiently handle requests to certify Supplement B forms for U Visa applications. Although WHD intends to hire
individuals to serve as regional U Visa coordinators, on an interim basis the regional Director of Enforcement (DOE) will serve in this capacity, unless a
Regional Administrator determines otherwise. The regional WHD U Visa coordinator will work closely with the regional RSOL attorney designated to
handle U Visa issues.
Generally speaking, the regional WHD U Visa coordinator will be responsible for overseeing incoming Supplement B form certification requests,
providing guidance and assistance with related WHD investigations, and coordinating efforts with appropriate law enforcement agencies, social service
organizations or outside entities representing U Visa applicants, as well as other DOL agencies and the designated RSOL attorney. The designated
RSOL attorney will conduct any necessary legal research and analysis and provide legal guidance regarding the QCA. The RSOL attorney will prepare
the Supplement B form I-918 and required supporting documentation, as described below.
The WHD U Visa coordinator will make a recommendation to the WHD Regional Administrator as to whether or not to certify Supplement B of Form
I-918. In most cases, the WHD Regional Administrator will be the certifying official, pursuant to a delegation of authority from the WHD Acting
Administrator.
The key steps in WHDs process for completing and certifying Supplement B forms are outlined below.
A. Investigation of a violation of a law that WHD enforces and detection of a related QCA
As mentioned above, WHD will consider requests for certification of Supplement B forms in cases in which the alleged QCA arises in the context of a
work environment or an employment relationship and there is a related, credible allegation of a violation of a law that WHD enforces. There are a
number of QCAs identified in the DHS regulations and the Form I-918. Of these, WHD has determined that it will consider requests to certify
Supplement B forms predicated on the following QCAs: involuntary servitude, peonage, trafficking, obstruction of justice, and witness tampering. 3
WHD believes that these QCAs are most likely to be found in connection with its workplace investigations and that it can effectively train its staff in
the detection of these QCAs. WHD will document basic information and evidence concerning these QCAs when they are detected during a WHD
investigation, but it does not have jurisdiction to investigate or prosecute these crimes. Thus, DOLs authority to complete and certify Supplement B
forms will be based on its role as a law enforcement agency that has detected the crimes.
Because DOL does not have the authority to investigate and prosecute QCAs, WHD will refer the underlying QCA to appropriate law enforcement
agencies in accordance with its normal protocols for referral of criminal laws not enforced by WHD. WHDs role would be to provide, where
appropriate, detected information to the appropriate law enforcement agency charged with investigating and prosecuting the crime, and to pursue in
coordination with that law enforcement agency the wage and hour or other workplace claims on behalf of the workers. Whether such a referral is
made before or after a decision to complete and certify a Supplement B form will depend on the circumstances of a case. In all cases, the safety of the
petitioner and his or her family should be a primary consideration, as well as the safety of other individuals who have been harmed or may be at risk of
harm from the detected criminal activity. The regional U Visa coordinator will provide guidance as necessary to the local District Office (DO) as to
how to manage the referral and will, as appropriate, work with social service organizations or representatives for the petitioner.
WHD anticipates that Supplement B form certification requests will arise in two primary contexts: (1) during a WHD workplace investigation, or after
the investigation is completed, an individual connected with the investigation requests that WHD complete and certify a Supplement B form based on a
detected or alleged QCA; (2) a U Visa petitioner contacts WHD with an allegation of both a violation of a law that WHD enforces and a related QCA
and requests that WHD complete and certify a Supplement B form. In all cases, the regional U Visa coordinator will be the point of contact for the
individual seeking Supplement B form certification.
(1) Requests for certification connected to current or completed WHD investigations If a U Visa petitioner contacts WHD to request certification
connected to a current or completed WHD investigation, the U Visa coordinator will determine whether one of the five QCAs for which WHD will
consider requests for certification was detected during the course of the WHD investigation. If the investigation is ongoing, the DO will proceed with
normal investigation protocols, taking care to document separately any detected information related to the QCA, as discussed further below.
In any investigation, regardless whether there has been a U Visa request, upon detection of information related to a QCA the DO will alert the regional
WHD U Visa coordinator. Although Wage and Hour Investigators (WHIs) will only receive training on detecting the five QCAs listed above
(involuntary servitude, peonage, trafficking, obstruction of justice, and witness tampering), the DO will notify the U Visa coordinator of any QCA it has
detected. If, during the course of a WHD investigation, the WHI has detected a QCA other than the five enumerated above, the U Visa coordinator
and the Regional Administrator will determine how best to proceed based on the facts and circumstances of the case. In all cases, the WHD Regional
U Visa coordinator will maintain information about the detected QCA for use in the event WHD receives a certification request connected with the
wage and hour investigation. In any case where WHD has detected a QCA during the course of its investigation, when appropriate and feasible WHD
will notify the victim of, or otherwise utilize the services of, community resources that may be able to assist the victim.
(2) Requests for certification concurrent with a WHD complaint If a U Visa petitioner contacts WHD claiming a workplace violation of a law that
WHD enforces and a related QCA, along with requesting certification of a Supplement B form, the DO will proceed with normal intake of the
underlying wage and hour complaint and forward the information related to the QCA and Supplement B form request to the regional WHD U Visa
coordinator. The DO should assign the WH complaint for investigation consistent with its normal protocols. The petitioner should provide the U Visa
coordinator with information that supports his or her allegation of a QCA and related violations of a law that WHD enforces and make him or herself
available to be interviewed by a representative from WHD.
Regardless of how a request to certify a Supplement B form originates, the regional WHD U Visa coordinator will review the information detected
during the WHD investigation, if any, and any information provided by the petitioner related to the QCA and in support of the Supplement B
certification request, and make a preliminary determination as to whether WHD would potentially certify the Supplement B form. The primary factors
the WHD U Visa coordinator should consider include whether:
The QCA arises in the context of an employment relationship or work environment and there is a related, credible allegation of a violation of a law
that WHD enforces;

APPENDIX B1

9/15/2011 1:24 PM

U.S. Department of Labor Wage and Hour Division (WHD) FIELD...

3 of 4

http://www.dol.gov/whd/FieldBulletins/fab2011_1.htm

Petitioner alleges a QCA of either involuntary servitude, peonage, trafficking, obstruction of justice, or witness tampering;
The Petitioner has demonstrated that he or she has been, is being, or is likely to be cooperative with law enforcement officials in any investigation
or prosecution of the QCA;
Another law enforcement agency is already engaged in the investigation or prosecution of the QCA or would be in a better position to certify the
Supplement B form based on the facts presented; and
Certification of the Supplement B form would assist WHDs investigation of a violation of a law that it enforces.
The first three elements listed above are required in order to certify the Supplement B form and the remainder will be weighed in prioritizing requests.
Although WHDs detection of a QCA should be considered in the petitioners favor, in cases where there is an ongoing or completed WHD
investigation the fact that WHD did not detect a QCA should not be the basis for denying a certification request.
If the regional WHD U Visa coordinator makes a preliminary determination that this is a case where WHD would potentially complete and certify a
Supplement B form, the regional WHD U Visa coordinator should alert the DO that received the wage and hour complaint and also provide the
designated RSOL attorney with basic information about the case. The RSOL attorney should advise the WHD U Visa coordinator regarding the
necessary legal elements of the particular QCA and provide advice to WHD U Visa coordinator about the kind of information and evidence that will be
needed to inform the certification decision. If necessary, as will be the case when there has not yet been a WHD investigation, the regional U Visa
coordinator will interview the U Visa petitioner to gather and confirm any information needed for the Supplement B form certification decision.
If the WHD U Visa coordinator makes the preliminary determination that it is unlikely that WHD would certify the Supplement B form based on the
above factors, the U Visa coordinator should inform the petitioner of that assessment in writing as soon as possible, along with information as to which
other law enforcement agencies may be able to certify the petition so that the petitioner can explore other avenues for certification.
B. Investigator Action
For requests associated with ongoing WHD investigations, the regional WHD U Visa coordinator will work with the appropriate DO to make sure that
evidence is gathered and documented consistent with the direction set out below to assist with determining whether to certify Supplement B of Form
I-918. For requests received simultaneously with a complaint alleging a violation of a law WHD enforces, the WHD complaint will be directed to the
appropriate DO for a determination whether to investigate in accordance with WHDs Complaint Policy. WHD investigators will not initiate an
investigation or return to a workplace for the sole purpose of detecting information about a QCA.
If necessary, such as when a request for certification is received simultaneously with the complaint, the regional U Visa coordinator will interview the U
Visa petitioner to gather and confirm any information needed for the Supplement B form certification decision. For requests associated with an active
investigation of a WH violation, the U Visa coordinator will alert the DO and Wage Hour Investigator (WHI) of the request and alleged QCA so that
the DO knows to keep the U Visa coordinator informed of any relevant evidence detected during the course of the investigation.
As discussed, WHD does not have jurisdiction to conduct investigations of the QCAs. Consequently, WHD investigators should follow WHD training
and guidance on detecting crimes that are enforced by other law enforcement agencies.
C. U Visa Coordinator Action
The detected facts related to the QCA will be recorded as part of a narrative statement prepared by the U-Visa coordinator. This statement should be a
separate document and will not be incorporated into the WHD case file. Rather, a separate file folder should be created for the case information that is
relevant to a particular U Visa petitioner. The narrative statement should:
Address how the case came to WHDs attention, and the current status of the WH complaint. For example, it should be noted whether WHD is
pursuing injunctive and/or monetary remedies to address the WH claims.
Provide a summary of the information provided by the petitioner to the U Visa coordinator or written information provided by the petitioner,
which should be attached to the narrative statement, together with a credibility determination by the U Visa coordinator or, if the individual was
interviewed during the course of a WHD investigation, the WHI.
Include an assessment of the petitioners helpfulness in detecting the QCA and investigating the workplace violation claim, as well as an
assessment as to whether the individual is likely to be helpful in any future investigation or prosecution of the QCA. This assessment can be made
based on the helpfulness of the individual to the WHD investigation, the individuals personal knowledge of the circumstances surrounding the
QCA, and other observations made by the WHI and the U Visa coordinator concerning the individuals general disposition and willingness to assist
government officials.
Address what, if anything, has been done or will be done to refer the case to the appropriate law enforcement agency that has jurisdiction to
investigate and/or prosecute the QCA.
Document any known injury to the petitioner, if available, and whether any of the petitioners family members are believed to have been involved
in the criminal activity of which he or she is a victim. This information will be needed in order to complete Supplement B of Form I-918.
D. Legal analysis and review of documentation, and recommendation whether to certify
Upon completion of the narrative statement, the U Visa coordinator will consult with the designated RSOL attorney regarding whether the information
set out in the narrative statement and any attachments is sufficient to recommend completion and certification of the Supplement B form. After
receiving the RSOL attorneys advice, the U Visa coordinator will make a recommendation to the Regional Administrator as to whether the application
should be certified. If the U Visa Coordinator, after consultation with the Regional Administrator and the RSOL attorney, concludes that a
recommendation to certify should be made, the RSOL will proceed to complete the Supplement B, Form I-918. If the conclusion is not to recommend
certification, the U Visa coordinator will state in writing to the Regional Administrator the reasons for not recommending certification and submit the
reasons and narrative statement to the Regional Administrator.
III. Certification Decision

APPENDIX B1

9/15/2011 1:24 PM

U.S. Department of Labor Wage and Hour Division (WHD) FIELD...

4 of 4

http://www.dol.gov/whd/FieldBulletins/fab2011_1.htm

A. Completion of Supplement B, Form I-918

The designated RSOL attorney will use the narrative statement provided by WHD and the completed legal research and analysis to complete the
Supplement B of Form I-918. To complete Supplement B, the RSOL attorney will draft an attachment that includes information such as:
A statement that WHD is involved because it is or was investigating or has received a complaint related to an alleged violation of a law that WHD
enforces, and that the agency is seeking monetary and injunctive remedies for those violations (if applicable).
A statement explaining the facts detected and/or alleged that support a finding that the individual has been a victim of a QCA.
A statement regarding any known injury to the victim, if available, and the individuals helpfulness in investigating the matter.
A summary of what has been done (or will be done), if anything, to refer the case to or share information with the appropriate criminal law
enforcement agency.
B. Review and certification of Supplement B, Form I-918
Once RSOL has completed the Supplement B form, it will be sent to the Regional Administrator. In most instances, the final authority to certify will be
delegated to the Regional Administrator. If the Regional Administrator certifies a Supplement B form, he or she should attach to the form a copy of
the memoranda delegating the certification authority to the Administrator and further to the Regional Administrator. If the Regional Administrator
decides not to certify the Supplement B form, the U Visa coordinator should inform the petitioners representative of the decision in writing as soon as
possible, along with information as to which other law enforcement agencies may be able to certify the petition so that the petitioner can explore other
avenues for certification.
C. Timeliness and notification of WHDs certification decision
It is very important that all requests for U Visa certification be processed expeditiously and that WHD notify the petitioner and/or his or her
representative of its decision in writing as soon as possible. The timely review of the petitioners allegations and, where appropriate, the certification
of a U Visa petition could help to protect the individual victims of QCAs who may be at risk of future harm, and whose cooperation with law
enforcement officials will be helpful to investigating or prosecuting the alleged perpetrator(s) of the QCAs. In those cases where WHD determines it
will be unable to certify a Supplement B form, the petitioner should be provided with information as to which other law enforcement agencies may be
able to certify the petition.
WHD anticipates that it will take it three months to review a single U Visa certification request and make a determination as to whether or not to
certify. This timeframe will vary, however, depending upon the complexity of the case and the overall volume of U Visa certification requests WHDs
regional representatives are handling at any one time. This estimated timeline may be adjusted based on WHDs experience reviewing certification
requests under the procedures outlined here.
D. Confidentiality
DOL officials are prohibited from using or disclosing information relating to the beneficiary of a pending or approved petition for U nonimmigrant
status unless the disclosure is made to a sworn officer or employee of DHS, the Department of Justice, or the Department of State for legitimate agency
purposes, or in certain other limited circumstances. See 8 C.F.R. 214.14(e) and 8 U.S.C. 1367. If a WHD official is uncertain as to whether it is
permissible to disclose information to a particular party, SOL should be consulted for advice.
IV. Conclusion
Additional guidance and training concerning investigation protocols and the handling of Supplement B form certifications will be provided to WHD
and RSOL staff, and shared with other DOL worker protection agencies that may also encounter U Visa issues.
1. The certifying agency does not have to certify as to whether the petitioner suffered substantial physical or mental abuse as a result of the QCA.
See 8 C.F.R. 214.14(c)(2)(i). This is a determination that will be made by USCIS based on information submitted by the petitioner. See 8 C.F.R.
214.14(b)(1) and (c)(2)(ii).
2. The certifying agency does not have to certify as to whether the petitioner suffered substantial physical or mental abuse as a result of the QCA.
This is a determination that will be made by USCIS based on information submitted by the petitioner. See 8 C.F.R. 214.14(b)(1) and (c)(2)(ii).
3. If WHD receives a request to certify for any other QCA, the U Visa coordinator will work with the requestor to identify other federal and state
agencies that may be willing to consider certifying the request.

Freedom of Information Act | Privacy & Security Statement | Disclaimers | Customer Survey | Important Web Site Notices | Plug-ins Used by DOL
U.S. Department of Labor | Frances Perkins Building, 200 Constitution Ave., NW, Washington, DC 20210
www.dol.gov | Telephone: 1-866-4-USWAGE (1-866-487-9243) | TTY: 1-877-889-5627 | Contact Us

APPENDIX B1

9/15/2011 1:24 PM

Department of Labor U Visa Process and Protocols

Question Answer
What are U Visas?
U Nonimmigrant Visas (U Visas) were created by the Victims of Trafficking and Violence
Prevention Act of 2000 (Public Law 106-386). Victims of qualifying criminal activities who have
suffered substantial physical or mental abuse may apply for a U Visa if they are willing to assist law
enforcement or other government officials in the investigation or prosecution of those crimes.
Individuals who receive U visas may remain in the United States for up to four years, and may
eventually apply for permanent residency. Among other requirements, a U Visa petitioner must ask
a federal law enforcement agency or official to complete a certification form asserting that the U
Visa petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or
prosecution of the criminal activity. The Department of Homeland Security, U.S. Citizenship and
Immigration Services, administers this program and grants or denies U Visa petitions.
What authority does the Department of Labor have to complete U Visa Certifications?
Department of Homeland Security regulations (8 C.F.R. 214.14(a)(2)) expressly list certain
federal law enforcement agencies that may certify U Visa applications, including the Department of
Labor. In doing so, the Department of Homeland Security recognized that Department of Labor
investigators may detect evidence of qualifying criminal activity during the course of investigating
violations of workplace laws. The Department of Labors authority to complete U Visa
Certifications (Form I-918, Supplement B) is based on its role as a law enforcement agency that has
detected the crimes.
What is Form I-918, Supplement B, U Visa Certification?
Form I-918, Supplement B, U Visa Certification, is the specific form that a petitioner asks the
Department of Labor to complete and sign as part of his or her petition for a U Visa. The U Visa
Certification does not provide individuals with a U Visa; rather, certification of the form is a
required element in a U Visa petitioners petition to U.S. Citizenship and Immigration Services. In
completing the U Visa Certification, the agency must certify that the individual submitting the Form
I-918 is a victim of a certain qualifying criminal activity and is, has been, or is likely to be helpful
in the investigation or prosecution of that activity. The Department of Labor has developed
protocols to ensure the U Visa Certification process the completion of the U Visa Certification
is efficient and an effective enforcement tool.
What agency within the Department of Labor has authority to complete U Visa Certification
requests?
The authority to complete U Visa certifications has been delegated to the Wage and Hour Division.
The Wage and Hour Division is responsible for enforcing some of the nations most comprehensive
federal labor laws, including the minimum wage, overtime pay, child labor, the employment of
persons with disabilities, family and medical leave, the employment of temporary or seasonal
migrant workers, the use of lie detector tests, and prevailing wages for government service and
construction contracts. While the Wage and Hour Division does not investigate violations of
qualifying criminal activities, it does conduct investigations for minimum wage and overtime
1

APPENDIX B1

violations. Because many wage and hour investigations take place in industries marked by
vulnerable workers, the Wage and Hour Division is often the first federal agency to make contact
with these workers and detect criminal activity in the workplace, which it may then refer to the
appropriate authorities. Additional agencies may be delegated authority where appropriate.
Where will the authority to certify rest within the Wage and Hour Division?
The certification process has been delegated to the Wage and Hour Divisions Regional
Administrators located in five cities around the country. These senior agency officials will have the
resources and training needed to make ultimate decisions about certification. Each official will be
assisted by a regional coordinator, who will have additional training to ensure that requests for
certification will be handled efficiently and effectively. Wage and Hour Division officials will work
closely with the regional offices of the Solicitor of Labor in the consideration of certification. The
final authority to complete U Visa Certifications will be delegated to the Regional Administrator.
What factors will the Wage and Hour Division consider in response to a request for completion
of a U Visa Certification?
The primary factors that will be considered include: 1.) whether the qualifying criminal activity
arises in the context of an employment relationship or work environment and there is a related,
credible allegation of a violation of a law the Department of Labor enforces; 2.) if the petitioner
alleges a qualifying criminal activity of involuntary servitude, peonage, trafficking, obstruction of
justice or witness tampering; 3.) the petitioner has demonstrated that he or she has been, is being, or
is likely to be helpful to law enforcement officials in any investigation or prosecution of the
qualifying criminal activity; 4.) if another law enforcement agency is already engaged in the
investigation of the qualifying criminal activity or would be in a better position to certify based on
the facts presented; and, 5.) whether completion of the U Visa Certification would assist the
Departments investigation of a violation of a law that it enforces.
Will the Department of Labor certify U Visa petitions based upon qualifying criminal activities
that are unrelated to an investigation of a civil law under Wage and Hour Division jurisdiction?
No. The Wage and Hour Division will only certify for the five qualifying criminal activities
identified above when they are detected in the process of investigating an allegation of a civil law
under its jurisdiction, for example, the right to a minimum wage and overtime. The alleged
qualifying criminal activity must arise in the context of a work environment or an employment
relationship and there must be a related, credible allegation of a violation of a law that the
Department of Labor enforces.
Why has the Department identified five specific qualifying criminal activities for certification?
The Department of Labor has determined it will consider completing U Visa Certifications where it
has detected violations of any one of the following five qualifying criminal activities: involuntary
servitude, peonage, trafficking, obstruction of justice, or witness tampering. It is most efficient and
effective to train staff on the detection of these qualifying criminal activities, which are most likely
to be found in connection with the agencys workplace investigations.

APPENDIX B1

What should a petitioner and/or his or her representative expect when requesting certification of
a Supplement B form for a U Visa?
All requests for completion of a U Visa Certification will be directed to the regional coordinator. In
most cases the coordinator will interview the petitioner regarding their allegations to determine
whether or not the request meets the requisite factors identified to consider certification. The
petitioners underlying minimum wage or overtime complaint will be addressed according to the
Wage and Hour Divisions standard complaint policy. Should the coordinator determine that the
request is related to an ongoing Wage and Hour investigation, the coordinator will notify the
appropriate Wage and Hour Division investigator. The coordinator will work as appropriate with
colleagues in the Regional Solicitor of Labors office in consideration of the request. The
Department of Labor recognizes the importance of expeditious processing and timely responses and
intends to notify the petitioner and/or his or her representative of its decision in writing as soon as
possible.
The petitioner and/or his or her representative will be responsible for completing the remainder of
the U Visa petition and submitting needed information to the Department of Homeland Securitys
U.S. Citizenship and Immigration Services. Should the Department of Labor determine a
certification is appropriate, it will only complete one portion of the application, the Supplement B
certification. Once the U Visa Certification is complete, it must be returned to the petitioner, who
will then send it to U.S. Citizenship and Immigration Services as part of the entire U Visa petition
package.
In some instances, it is possible that a Wage and Hour Division investigator will detect a qualifying
criminal activity during the course of an investigation. Should this occur, the Wage and Hour
Division investigator will provide information about the detection to the appropriate coordinator;
the coordinator and the Regional Administrator will decide how best to proceed given the facts and
circumstances of the case.
What should a petitioner expect if their request is denied?
If a decision is made not to certify the Supplement B form, the petitioner or their representative will
be informed of the decision in writing as soon as possible, along with information as to which other
law enforcement agencies may be able to certify the petition.
Is the Department obligated to complete every request for a U Visa Certification?
The U Visa Certification requires the Department of Labor to attest that the petitioner is a victim of
certain qualifying criminal activity, and is, has been, or is likely to be helpful in the investigation or
prosecution of that activity. The Department of Labor has established protocols that it will follow
when considering a request to complete a U Visa Certification. Completion of a U Visa
Certification is entirely discretionary.
Will the Department of Labor refer underlying qualifying criminal activities for prosecution?
The Wage and Hour Division will refer the underlying qualifying criminal activity to appropriate
law enforcement agencies in accordance with its normal referral procedure. The Wage and Hour
Division places paramount importance on the safety of a petitioner, his or her family, and other
3

APPENDIX B1

individuals who have been harmed or who may be at risk. The timing and proper recipient of each
referral will be made on a case-by-case basis. Proper confidentiality procedures will be followed in
any referral.
How long does the Department of Labor expect the certification process to take?
The Department of Labor recognizes the importance of expeditious processing and timely
responses. The Department anticipates that it will take it three months to review a single U Visa
Certification request and make a determination as to whether or not to complete the Certification.
This timeframe will vary, however, depending upon the complexity of the case and the overall
volume of U Visa Certification requests the Departments regional representatives are handling at
any one time. This estimated timeline may be adjusted based on the Departments experience
reviewing certification requests under the procedures outlined. The Department intends to notify the
petitioner and/or his or her representative of its decision in writing as soon as possible.
Does the Department of Labors completion of a U Visa Certification result in the issuance of a
U Visa?
The Department of Labor, like other federal and state law enforcement agencies and the Equal
Employment Opportunities Commission, has authority to complete the portion of a petitioners UVisa petition known as Supplement B, U Visa Certification. The Department of Labor does not
have the authority to issue a U Visa. The decision whether to approve or deny a U Visa petition
rests solely with the Department of Homeland Securitys U.S. Citizenship and Immigration
Services. There is a single, statutory, annual cap on the number of principal applicants who may be
admitted in U nonimmigrant status in any fiscal year, regardless of the origin of the certification.
The Department of Labor does not have a separate allotment of U Visas at its discretion.
What training will Wage and Hour Division employees be provided on U Visas?
Guidance and initial training concerning investigation protocols and the handling of Supplement B
form certifications has already been provided to certain key Wage and Hour Division and Regional
Solicitor of Labor staff. Further training is planned for the future. Guidance will be shared with
other Department of Labor worker protection agencies that may also encounter U Visa issues as
appropriate.
Will the Department of Labor review these processes and procedures?
The Wage and Hour Division will regularly evaluate protocols for effectiveness and efficiency.
Revisions may be made as deemed necessary.
Current: April 28, 2011

APPENDIX B1

U.S. Department of Labor Wage and Hour Division

Regional U Visa Coordinators
Contact Information (as of May 2014)
SOUTHWEST REGION
Esther Del Toro
525 S. Griffith St. Suite 800
Dallas, TX 75202
Tel: 972-850-2656
Fax: 972-850-2601
Email: DelToroOliver.Maria@dol.gov
States: Arkansas, Colorado, Louisiana, Montana,
New Mexico, North Dakota, Texas, Utah,
Wyoming

NORTHEAST REGION:
Rachel Dinetz Christiansen
U Visa Coordinator, Northeast Region
U.S. Department of Labor
Wage and Hour Division
170 S. Independence Mall West
Suite 850 West
Philadelphia, PA 19106-3317
Tel: 267-687-4026
Fax: 267-687-4026
Email: Christiansen.Rachel@dol.gov
States: Connecticut, Delaware, District of
Columbia, Maine, Maryland, Massachusetts,
New Hampshire, New Jersey, New York,
Pennsylvania, Puerto Rico, Rhode Island,
Vermont, Virginia, West Virginia

WESTERN REGION
Jennifer Tse
90 7th St. Suite 13-100
San Francisco, CA 94103
Tel: 415-625-7700
Fax: 415-625-7699
Email: Tse.Jennifer@dol.gov
States: Alaska, Arizona, California, Hawaii,
Idaho, Nevada, Oregon, Washington; American
Samoa, Guam, Northern Mariana Islands

SOUTHEAST REGION
Daniel S. Chapman
Southeast Regional U Visa Coordinator
U.S. Department of Labor, Wage and Hour
Division
61 Forsyth Street SW, Room 7M40
Atlanta, GA 30303
Tel: 678-237-0525
Fax: 678-237-0525
Email: chapman.daniel@dol.gov
States: Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina,
Tennessee
MIDWEST REGION
Anna Lusero
230 South Dearborn St. Room 530
Chicago, IL 60604
Tel: 312-596-7180
Fax: 312-596-7205
Email: Lusero.Anna@dol.gov
States: Illinois, Indiana, Iowa, Kansas, Missouri,
Michigan, Nebraska, Ohio, Wisconsin

APPENDIX B2

APPENDIX B3

APPENDIX B3

APPENDIX B3

APPENDIX B3

OFFICE OF THE GENERAL COUNSEL

Division of Operations Management
MEMORANDUM OM 11-62

June 7, 2011

TO:

All Regional Directors, Officers in Charge,

and Resident Officers,

FROM:

Richard A. Siegel, Associate General Counsel

SUBJECT:

Updated Procedures in Addressing Immigration Status

Issues that Arise During NLRB Proceedings

This memorandum provides a brief introduction to immigration status issues, and an update
regarding how such issues should be addressed during NLRB investigations and proceedings.
The NLRA protects all employees covered by the Act regardless of immigration status;1
however, immigration status issues may affect remedies and occasionally present other practical
difficulties for the enforcement of the Act. Supplementing GC 02-06, this memorandum
provides further guidance for proceeding when immigration status issues arise during NLRB
case handling. It also identifies immigration agencies that have discretion to provide
immigration remedies and other assistance to discriminatees or witnesses in Board proceedings.
Regions should contact DAGC Peter Sung Ohr in the Division of Operations-Management
whenever issues arise that may require assistance from such immigration agencies as further
described below.
A. Background
1. Immigration Agencies
Since the organization of the Department of Homeland Security (DHS) in 2002, primary
responsibility for immigration issues has been split between three agencies within DHS:

United States Citizenship and Immigration Services (USCIS) is responsible for

adjudicating immigration benefits, such as visas;
Immigration and Customs Enforcement (ICE) investigates immigration violations and
enforces the law, including the prosecution of removal actions before immigration judges
within the Department of Justice;
Customs and Border Patrol (CBP) is responsible for securing the physical borders and
points of entry.

Within the limits of the law, USCIS, ICE, and CBP have discretion to decide whether, when, and
how to enforce the law in each particular case coming within their respective jurisdictions. See
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-87 (1999). In
1

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984); see Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.
137, 152 (2002) (expressly reaffirming this principle, though limiting remedies in order to avoid conflict with
immigration law).

APPENDIX B4

2
exercising this discretion, immigration agencies will consider, among other things, [c]urrent or
past cooperation [by the individual] with . . . law enforcement authorities, such as the U.S.
Attorneys, the Department of Labor, or National Labor Relations Board, among others.
Memorandum, Exercising Prosecutorial Discretion, Commissioner of Immigration and
Naturalization Services Doris Meissner, p. 8 (November 17, 2000); see also Memorandum,
Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of
Aliens, Assistant Secretary of Immigrations and Customs Enforcement John Morton p. 4 (June
30, 2010); OM Memo 97-11 Relations with Immigration and Naturalization Service (INS) of
the U.S. Department of Justice (February 14, 1997).
2. Immigration Status
Non-citizens2 may hold one of two general categories of lawful visa status:

Immigrant visas confer status as a Lawful Permanent Resident, colloquially referred to

as a green card. Lawful Permanent Residents generally have work authorization. This
status does not expire but can be terminated in a variety of circumstances, including
certain criminal convictions.
Nonimmigrant visas are temporary and will expire within a specific defined term. There
are many varied types of nonimmigrant visas, most often named after the statutory
subsection in the Immigration and Nationality Act (INA), which creates each specific
type. INA, Pub. L. 82-414, as amended, see 8 U.S.C. 1101, et seq. For example, the
H-2B visa refers to the temporary worker visa governed by INA 101(a)(15)(H)(ii)(b),
(see below). The scope and nature of work authorization varies considerably among the
nonimmigrant visas:
o No work authorization is provided by many of the most common nonimmigrant
visa types, including B-1 visas for business, B-2 visas for tourists and short term
visitors covered by the visa waiver program (visitors from, for example, Japan,
Czech Republic, Italy, England, etc.).
o Limited work authorization is provided by a number of visas, particularly those
obtained through work (rather than family or asylum). Such work authorization is
limited to a specific employer; indeed, the visa itself is terminated if the
employment relationship ends, and the former employee is then required by law
to leave the country. Visas of this sort include H-1 visas for professionals, H-2B
visas for nonprofessionals, and L visas for intracompany transferees.
o Broader work authorization that permits working for any employer is provided
by some visas, including portions of the term of some student visas, K-1 fiance
visas, and T, U, and S,3 law enforcement visas (described more fully below).

All persons born or naturalized in the United States are citizens under the Fourteenth Amendment.
Citizens generally do not encounter immigration status issues when working in the United States.
3
The S visa was created in 1994 as a temporary program and made permanent in 2001 require certification
by the Attorney General and are capped at 200 visas per year. They are available only for informants against
criminal organizations or enterprises. 8 U.S.C. 1101(a)(15)(S)(i). An additional 50 visas are available where the
Secretary of State and the Attorney General provide certification for a reliable informant on terrorist organizations.
8 U.S.C. 1101(a)(15)(S)(ii); 8 U.S.C. 1184(k)(1).

APPENDIX B4

3
Violations of visa termseither by working when unauthorized or by overstaying after the
expiration of a visacan result in loss of visa status and removal from the country. In addition,
entering the country without any valid immigration status violates immigration law and can
result in removal; such persons are commonly referred to as undocumented.
B. Procedure for Addressing Immigration Status Issues
As noted, the NLRA protects covered employees regardless of immigration status. Therefore,
immigration status (or lack thereof) is generally not relevant either in representation proceedings
or at the merits stage of unfair labor practice proceedings. As stated, in GC 02-06, Procedures
and Remedies for Discriminatees Who May Be Undocumented Aliens after Hoffman Plastic
Compounds, Inc. p. 6:

Regions generally should presume that employees are lawfully authorized to work. They
should refrain from conducting a sua sponte immigration investigation and should object
to questions concerning the discriminatee's immigration status at the merits stage.
Regions should investigate the discriminatee's immigration status only after a respondent
establishes the existence of a genuine issue [during the remedial stage].
Regions should conduct an investigation by asking the Union, the charging party and/or
the discriminatee to respond to the employer's evidence.

Regions should continue to follow this policy and consult GC 02-06 for additional direction.
Nonetheless, immigration issues are sometimes unavoidably interjected into NLRB proceedings.
For example, NLRB discriminatees, witnesses, or voting-eligible employees may be taken into
custody by ICE or CBP. In addition, immigration status may be inextricably intertwined with an
unfair labor practice, such as where immigration threats or related conduct is the basis of the
unfair labor practice allegation. Finally, the issue may be as simple as an employee volunteering
information about immigration status or asking the Region for immigration advice or assistance.
Regions should not provide immigration advice. Resolution of these issues is best addressed
when employees can obtain immigration advice through their union or from an independent
immigration attorney. Regions may refer interested persons to the list of accredited immigration
services providers maintained by the Department of Justice and found at
http://www.justice.gov/eoir/statspub/raroster.htm.4 Individuals sometimes are mistaken about
their immigration status and Regions should not assume that immigration status information
volunteered by an unrepresented person is correct.
C. Seeking Assistance from Immigration Agencies Regarding Status Issues
As set forth below, in certain cases where immigration status is of particular significance, the
Agency may decide to seek the assistance of one of the three immigration agencies to advance
4

As a public service, the Region could place copies of the listing of currently recognized organizations and
accredited individuals in a binder in a designated area in the Regional office for the publics use.

APPENDIX B4

4
the effective enforcement of the NLRA. Such agencies might assist in providing visa remedies,
deferring immigration actions during the pendency of the NLRB proceeding, and/or releasing
individuals from custody or providing access to witnesses in custody. Regions should consult
with DAGC Peter Sung Ohr in the Division of Operations-Management when such issues arise.
Regions should also discuss with the Division of Operations-Management cases involving any of
the following circumstances: 1) where the status of an individual involved in the case is lost,
particularly because of protected concerted activities; 2) where the individuals presence in the
country is important to the effectuation of the Act; 3) where NLRB or immigration processes are
being abused by the employer; and/or 4) where the employer knew or was willfully ignorant of
the employees lack of status. These circumstances are merely illustrative and there may be
others where consulting with the Division of Operations-Management would be prudent.
1. Loss of Status, Particularly Where Status is Lost Because of Protected Concerted
Activities
Cases involving lawful immigration status that is illegally stripped from an employee as a direct
result of an unfair labor practice are very compelling. For example, as previously noted, an
employee holding a nonimmigrant work visasuch as the H or L visaswill be dependent upon
continued employment by a specific employer in order to maintain immigration status and
legally remain in the country. An employer who fired such an employee in violation of, for
example, Section 8(a)(1) or 8(a)(3), also would have unlawfully deprived the employee of visa
status. In addition, the investigation, prosecution, and remediation of the unfair labor practice
would likely be impeded by the discriminatees absence from the country. However, remaining
in the country to pursue the unfair labor practice could subject the discriminatee to immigration
penalties and could complicate remedial considerationseven though the employee had always
complied with immigration law and has been illegally deprived of immigration status.
In addition, cases where individuals lost lawful immigration status for any of a variety of other
reasons may also require assistance from immigration agencies in order to remain in the country
to participate in NLRB proceedings. This category includes those cases where there is simply
the expiration of a temporary nonimmigrant visa.
2. Importance of the Individuals Presence in the Country to the Effectuation of the
Act
Immigration status issues may interfere with enforcement and effectuation of the NLRA by, for
example, impacting the availability of discriminatees and important witnesses during NLRB
proceedings. In such cases, it may be appropriate to seek the assistance of immigration agencies.
In addition, particular attention is required where the alleged ULP involves egregious conduct,
such as physical coercion, involuntary servitude, blackmail, or violations of other laws.
Examples of physical coercion and involuntary servitude may include taking an employees
passport or imposing illegal working conditions. Examples of blackmail may include interfering
with protected activity through illegal threats of retaliation such as threats to call immigration
authorities or threats to blacklist employees. In such cases, additional immigration remedies

APPENDIX B4

5
may be available, including a law enforcement visa such as the U or T Visa.5 It is very important
that Regions contact the Division of Operations-Management when such issues arise.
T Visas:
The T Visa category was created in 2000 by the Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. 106-386. This visa is available where the applicant is the victim of severe
forms of trafficking in persons,6 and the victim must be present in the United States because of
the trafficking. 8 U.S.C. 1101(a)(15)(T)(i)(II). The victim must have either complied with
any reasonable request for assistance in the investigation or prosecution of acts of such
trafficking in persons, or [i]s less than 15 years of age. 8 U.S.C. 1101(a)(15)(T)(i)(III).
Additionally, the victim must also prove extreme hardship involving unusual and severe harm
if the victim were deported. 8 C.F.R. 214.11(i) (describing evidentiary standard for extreme
hardship). There is also a numerical limit of 5000 T Visas per year.
T Visas last for a term of three years, and automatically include work authorization. 8 C.F.R.
214.11(l)(4)(work authorization); 214.11(p)(three year term). Family members of victims
can also obtain T Visas; family member T Visas are not subject to the numerical cap. 8 C.F.R.
214.11(o). T Visas also include a path to becoming a lawful permanent resident. 8 C.F.R.
214.11(p)(2).
This visa could be applicable in some cases that come before the NLRB. For example, where a
discriminatee is brought into the country under false pretenses and confined in sweatshop
conditions, a T Visa may be available. However, in most cases, T Visas may not be available
either because the individual came to the United States independent of any trafficking, or the
circumstances do not rise to the level of severe trafficking required by USCIS.
In those cases where a T Visa may be applicable, the Regional Office should immediately
contact DAGC Peter Sung Ohr in the Division of Operations-Management.
U Visa:
Like the T Visa, the U Visa category was created by the Victims of Trafficking and Violence
Protection Act. The U Visa is available where the nonimmigrant applicant is the victim of one
the following qualifying crimes while in the United States:
rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual
contact; prostitution; sexual exploitation; female genital mutilation; being held
hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction;
unlawful criminal restraint; false imprisonment; blackmail; extortion;
5

Such visas are available to the victims of certain qualifying crimes who are cooperating with law
enforcement agencies. 8 U.S.C. 1101(a)(15)(T) & (U); 8 C.F.R. 214.14.
6
Defined as sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in
which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring,
transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion
for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 8 C.F.R. 214.11(a).

APPENDIX B4

6
manslaughter; murder; felonious assault; witness tampering; obstruction of
justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above
mentioned crimes.
8 U.S.C. 1101(a)(15)(U)(iii).
Applicants for U Visas must submit a completed Form I-918, Petition for U Nonimmigrant
Status to USCIS for consideration, along with a completed and certified Supplement B form
completed by an agency responsible for the detection, investigation, prosecution, conviction, or
sentencing of qualifying criminal activity. See 8 C.F.R. 214.14(c)(2)(i); Instructions for I918, Supplement B at 2. In completing Supplement B, the agency must certify that the
individual submitting the Form I-918 is a victim of certain qualifying criminal activity and is, has
been, or is likely to be helpful in the investigation or prosecution of that activity. See 8 C.F.R.
214.14(c)(2).
USCIS has interpreted this list of U Visa qualifying crimes broadly, and stated in the relevant
regulatory documents that this is a list of general categories of criminal activity. It is also a
non-exclusive list. Any similar activity to the activities listed may be a qualifying criminal
activity. New Classification for Victims of Criminal Activity; Eligibility for U
Nonimmigrant Status, Interim Final Rule, 72 F.R. 53014, 53018 (September 17, 2007).
If a Regional Office receives a request to complete the Supplemental B form to certify a U Visa
application, the Region should immediately contact DAGC Peter Sung Ohr in the Division of
Operations-Management. Initially, it will be the Regional Offices responsibility to investigate
whether the nonimmigrant applicant has been a victim of a qualifying criminal activity and is
being, has been, or is likely to be helpful to the investigation of that activity. The qualifying
criminal activity must be related to the meritorious unfair labor practice alleged in the ULP under
investigation by the NLRB.
Upon the conclusion of the Regional investigation, the Region should submit a written
recommendation to the Division of Operations-Management addressing whether the ULP
allegation is related to the qualified criminal activity within the meaning of the U Visa statute
and whether the nonimmigrant applicant has demonstrated that he or she has been, is being, or is
likely to be helpful to the investigation.
The U Visa should be applicable in a greater number of cases than the T Visa because of the
breadth of the crimes which qualify. The list includes a number of crimes that may arise in the
workplace, and which also constitute unfair labor practices in some cases, including peonage;
involuntary servitude; . . . unlawful criminal restraint; false imprisonment; blackmail; extortion;
. . . felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy,
or solicitation to commit any of the above mentioned crimes.
The remedy provided by the U Visa are substantially similar to those available with the T Visa: a
term of generally three or four years (USCIS may extend the term beyond four aggregate years),
work authorization, family member visas, and a path to becoming a lawful permanent resident. 8
C.F.R. 214.14(g), (c)(6), (f), (g)(2), respectively.

APPENDIX B4

7
3. Abuse of Process: Retaliation Using Immigration Status
Whether or not a T or U Visa may be available to an individual involved in a Board proceeding,
Regions should contact the Division of Operations-Management in cases where an employer is
taking advantage of immigration status issues in an attempt to abuse the NLRB process and
thwart the effective enforcement of the law. Examples of this type of behavior include calling or
threatening to call ICE in retaliation for protected concerted activities, citing immigration status
as a pretext for unlawful firing, and alluding to immigration status in a menacing or suggestive
way during representation or ULP proceedings.7
4. Employer Knowledge or Willful Ignorance of Individuals Undocumented Status
Regions should also contact the Division of Operations-Management in cases where a
respondent employer commits ULPs against an employee knowing or with willful ignorance of
such employees lack of immigration work authorization. Such employers pose a significant
threat to the enforcement of the NLRA because they deliberately take advantage of the
employees lack of status. In most such cases, the employees are aware or suspect that the
employer knows of their immigration status, and are thus deterred from exercising their legal
rights even where no overt immigration threats are made.
The kind of evidence that demonstrates that an employer knew or was willfully ignorant of the
workers status includes: failure to ask for I-9 documents,8 complicity in accepting fraudulent I-9
documents, and irregular pay arrangements. Threats to take action based on status or other
statements acknowledging employees status also reflect a knowing or willfully ignorant
Employer.9
Conclusion
Although Regions should not raise immigration status issues sua sponte, in cases where such
issues arise, immigration agencies may grant immigration remedies or favorably exercise
discretion in order to assist the NLRB in the enforcement of the NLRA. Regions should contact
DAGC Peter Sung Ohr in the Division of Operations-Management in all cases where the
circumstances arguably justify using these mechanisms.
/s/
R.A.S.
cc:
NLRBU
Released to the Public
7

Generally, an employer may raise immigration status during remedial ULP proceedings as a defense to
back pay and reinstatement. GC 02-06; see Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002);
NLRB v. Domsey Trading Corp., __ F.3d __, 10-3356, 2011 WL 563688 (2d Cir. February 18, 2011) ([W]e find
that employers may cross-examine backpay applicants with regard to their immigration status, and leave it to the
Board to fashion evidentiary rules consistent with Hoffman.).
8
Acceptable documents to establish a workers identity and eligibility to work in the United States.
9
Seeking such information should be done consistent with the guidelines in GC 02-06.

APPENDIX B4

DEPARTMENT OF FAIR EMPLOYMENT

AND HOUSING

ENFORCEMENT DIVISION
DIRECTIVE

DIRECTIVE NUMBER

317
DISTRIBUTION DATE
May 6, 2010

1.

SUBJECT:

OBTAINING U VISAS IN INVESTIGATED CASES

2.

PURPOSE: To set forth the procedures for certifying, under limited

circumstances, requests for a U Visa.1

3.

BACKGROUND: The federal Victims of Trafficking and Violence Protection Act

of 2000 created the U Visa, which is available to immigrant victims of serious
crimes. The purpose behind the U Visa was to recognize that many
undocumented crime victims fear that assisting law enforcement could lead to
deportation. The U Visa encourages these victims to report crimes and assist in
their prosecution by offering temporary legal status and work authorization. To
obtain a U Visa, victims must demonstrate to the U.S. Citizenship and
Immigration Services (USCIS), via certification by a law enforcement agency,
their willingness to cooperate in a qualifying investigation or prosecution.
Because the Department of Fair Employment and Housing (DFEH) investigates
claims under the Fair Employment and Housing Act (FEHA) and the Ralph Civil
Rights Act, the DFEH may qualify as a law enforcement agency that can submit
certifications to the USCIS on behalf of certain undocumented complainants.
There are, however, several factors which would need to be present before
DFEH could submit a U Visa certification.

4.

PROCEDURES:
A.

When a U Visa is Appropriate:

1)

The first step in determining when a U Visa certification is

appropriate would be that the case under investigation would have
to allege acts covered under the FEHA or Ralph Act and where the
allegations, if proven, would fall into one of the offenses covered by
the U Visa program:2
a)
b)
c)

Sexual Assault;
Sexual Exploitation;
Abusive Sexual Contact;,

This Directive may be applied to U Visas created by future amendments to the Victims of Trafficking and Violence Protection Act.
2 8 U.S.C. 1101(a)(15)(U)(iii).

DIR 317

-1APPENDIX B5

05/06/10

d)
e)
f)
g)
h)
i)
j)
k)
l)
m)

B.

Rape;
Trafficking;
Domestic Violence;
Murder;
Manslaughter;
Abduction;
Extortion;
Torture;
Incest; and
Prostitution.

2)

The DFEH would have to be conducting an ongoing investigation

into the complainants FEHA or Ralph Act claim.

3)

The complainant would either have to be cooperating or willing to

cooperate in DFEHs investigation.

4)

The complainant would have to request DFEH to submit the U Visa

certification on his or her behalf.

Submitting the request for U Visa Certification:

1)

2)

If all the factors listed in 4. (A) (1-4) are present, the DFEH can, and
should, prepare and submit a law enforcement certification form
(Attached Form I-918, Supplement B, U Nonimmigrant Status
Certification) to USCIS.
The Consultant should fill out the form including:
a)
b)
c)
d)

3)

Details of the crime;

Complainants personal data;
Knowledge of the incident; and
Helpfulness to the investigation or prosecution.

The Consultant should sign the form. Signing the form would not
indicate the DFEHs sponsorship for the complainant/immigrant,
and the DFEH may, and should, notify USCIS if the complainant
failed to meet his or her ongoing responsibility to cooperate with the
Department. Accordingly, while the DFEHs participation in this
federal immigration program will likely be limited, a U Visa
certification by the DFEH may, in certain circumstances, provide
the Enforcement Division with another effective tool to ensure the
thorough investigation of alleged FEHA or Ralph Act violations.

4) DFEH staff members are not to question complainants regarding their

immigration status. The Departments new U Visa Practice does not
change this approach. However, if a complainant voluntarily raises
his or her immigration status with DFEH staff, and DFEH staff
believes that pursuing a U Visa for the complainant would be
DIR 317

-2APPENDIX B5

05/06/10

appropriate under the circumstances, then please contact

immediately, through your District Administrator/Regional
Administrator, Deputy Director, or Chief of Enforcement. The Chief of
Enforcement will review any certification before it is submitted to
USCIS.

5.

APPROVAL:

______________________________________
Phyllis W. Cheng, Director

DIR 317

-3APPENDIX B5

May 6, 2010
_____________________
Date

05/06/10

APPENDIX B6

APPENDIX B6

APPENDIX B6

APPENDIX B6

APPENDIX B6

APPENDIX B6

APPENDIX B7

APPENDIX B7

APPENDIX B7

APPENDIX B7

APPENDIX B7

APPENDIX B7

APPENDIX B7

New York State Department of Labor

Andrew M. Cuomo, Governor
Colleen C. Gardner, Commissioner

NEW YORK STATE DEPARTMENT OF LABOR

MEMORANDUM & ORDER REGARDING CERTIFICATION OF U VISA PETITIONS
1. PURPOSE
The purpose of this order is to establish guidelines and procedures for U visa certifications
signed by the New York State Department of Labor (NYSDOL).1
2. BACKGROUND
Congress created the U visa in 2000 in recognition of the fact that many undocumented
immigrant crime victims do not cooperate with law enforcement out of fear that such contact
could lead to their deportation. The U visa encourages these victims to report crimes and
cooperate in criminal investigations by offering temporary legal status and work authorization.
The U visa was created with the express purpose of strengthening the ability of law enforcement
agencies to detect, investigate and prosecute crimes committed against undocumented
immigrants, while simultaneously offering protection to the victims.
While it is the policy of the NYSDOL not to inquire into the immigration status of claimants or
witnesses, or to share witness information with the immigration authorities, the NYSDOL
recognizes that undocumented victims of labor-related criminal offenses may nevertheless be
reluctant to assist in the investigation or prosecution of that criminal activity out of fear of
deportation. The U visa allows the NYSDOL to more aggressively pursue perpetrators of
criminal labor violations while building trust in immigrant communities.
3. THE NEW YORK STATE DEPARTMENT OF LABOR IS AN APPROPRIATE
CERTIFYING AGENCY
Crime victims applying for a U visa must submit a certification completed by a law enforcement
agency to the United States Citizenship and Immigration Services (USCIS) affirming that the
applicant has been, is being, or is likely to be helpful to that agency in the investigation or
prosecution of the criminal activity. As a state law enforcement agency with the jurisdiction to
detect and/or investigate certain U visa-qualifying crimes under the New York State Labor Law,
the NYSDOL is an appropriate U visa certifying agency.

This order may be applied to U visas created by future amendments to relevant immigration statutes.

W. Averell Harriman State Office Campus

Building 12, Room 500, Albany, NY 12240
www.labor.ny.gov
APPENDIX B8

4. PROCEDURE
a. WHEN A U VISA IS APPROPRIATE
i. The NYSDOL must have jurisdiction to investigate the case (i.e., the case

must contain allegations of violations of New York State Labor Law) and the
allegations, if proven, must make the claimant a victim of one of the offenses
listed in the U visa statute. These offenses include
Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Abusive sexual contact
Prostitution
Sexual exploitation
Female genital
mutilation

Being held hostage

Peonage
Involuntary servitude
Slave trade
Kidnapping
Abduction
Unlawful criminal
restraint
False imprisonment
Blackmail
Extortion

Manslaughter
Murder
Felonious assault
Witness tampering
Obstruction of justice
Perjury
Attempt, conspiracy, or
solicitation to commit
any of the above
mentioned crimes

The above list of qualifying criminal activities is a list of general categories of

qualifying crimes which are not tied to any particular statutory definition. The list
is not exhaustive and similar activities may serve as qualifying criminal activity
where the nature and elements of the offenses are substantially similar to offenses
included in the list.
ii. The request for certification must be submitted at any time during, or within a
reasonable time after the conclusion of, the NYSDOLs investigation or
involvement in the detection of the qualifying crime.
iii. The potential U visa applicant must currently be, have been, or be likely to be
helpful in the NYSDOLs investigation. The individual must have actually
provided, or be willing to provide, relevant testimony to the NYSDOL during
its investigation, even if that testimony is not subsequently used at trial. There
is no requirement that the crime be charged or prosecuted; if the case is
prosecuted there is no requirement that the victim testify or the perpetrator be
convicted.

APPENDIX B8

b. SUBMITTING A REQUEST FOR U VISA CERTIFICATION

If all the factors listed in Section 4(a)(i) through (iii) are present, the NYSDOL may
prepare a law enforcement certification form (USCIS Form I-918, Supplement B, U
Nonimmigrant Status Certification) for the claimant/witness submission to the USCIS.
i. PROCEDURE
1. The Commissioner of Labor may delegate her/his authority to issue U
visa certifications on behalf of the NYSDOL.2
2. Claimants or witnesses in a NYSDOL investigation who believe they
have been victims of a qualifying criminal activity and are being, have
been, or are likely to be helpful to the NYSDOL detection or
investigation of that criminal activity may submit a request for U Visa
certification to the Commissioner of Labor or her/his designee.
3. In submitting the request for U visa certification, the claimant or
witness should include the NYSDOL claim number and the name of
any NYSDOL staff involved in the claim, if known. The claimant or
witness should also fill out as much of the certification form (USCIS
Form I-918, Supplement B) as possible, including:
a. The victims personal data;
b. The details of the crime, including
i. Any known dates,
ii. A description of the criminal activity being investigated
and the victims knowledge of and involvement in the
investigation, and
iii. A description of any known or documented injuries to
the victim, including physical or mental abuse; and
c. The victims statement as to his or her helpfulness in the
investigation and/or prosecution of the criminal activity.
Claimants or witnesses may attach additional pages as necessary,
including copies of any relevant reports or findings.
2

Please refer to Letter of designation of certifying authority.

APPENDIX B8

4. Requests for U Visa certification will also be accepted from advocates

representing NYSDOL claimants or witnesses. For the NYSDOL to
communicate with said advocate regarding the claim and/or the
request for U Visa certification, the claimant or witness should submit
a written statement to the NYSDOL authorizing the NYSDOL to
communicate directly with the advocate.
5. TIMELINE
In order to protect eligible victims from deportation, certifications should be sought as soon as
potential applicants meet the eligibility requirements listed in Section 4(a).
The individual designated by the Commissioner to issue U visa certifications shall issue or deny
a certification as soon as possible, but no later than thirty (30) days from the date the request was
received.
6. ADDITIONAL CONSIDERATIONS
a. NYSDOL enforces New Yorks Labor Laws regardless of the immigration status of
any individuals involved. NYSDOL staff will not question claimants or witnesses
about their immigration status, unless it is to discuss the possibility of a U Visa
certification. Pursuant to Sec. 4(b)(i)(3) of this order, NYSDOL staff will not discuss
the possibility of U Visa certifications with claimants or witnesses until after
receiving authorization to do so from a supervisor, who would have by then discussed
the matter with the Commissioner of Labor or her/his designee. In any conversation
regarding the possibility of U Visa certification, NYSDOL staff shall explain to the
claimant or witness that NYSDOL does not make referrals to the USCIS or ICE.
Under no circumstances will NYSDOL staff give immigration legal advice to any
victim.
b. The role of the NYSDOL in the U Visa process is to certify the helpfulness of the
claimant or witness in the NYSDOL investigation, not to determine the applicants
eligibility for a U visa or whether the applicant has suffered sufficient harm to merit a
visa. USCIS will adjudicate the U Visa petition.
c. In addition to direct victims, the U Visa encompasses certain indirect victims, such as
the victims of witness tampering, obstruction of justice and perjury, which are not
crimes against a person. The claimant or witness may be considered a victim of

APPENDIX B8

witness tampering, obstruction of justice, or perjury, including any attempt,

conspiracy, or solicitation to commit one or more of those offenses if:
i. The victim has been directly and proximately harmed by the perpetrator of the
witness tampering, obstruction of justice, or perjury; and
ii. There are reasonable grounds to conclude that the perpetrator committed the
witness tampering, obstruction of justice, or perjury offense, at least in
principal part, as a means:
1.

To avoid or frustrate efforts to investigate, arrest, prosecute, or

otherwise bring to justice the perpetrator for other criminal activity; or

2. To further the perpetrator's abuse or exploitation of or undue control

over the petitioner through manipulation of the legal system.
d. If the victim unreasonably refuses to assist in the investigation or prosecution of the
qualifying criminal activity of which he or she is a victim, even after the certification
has been submitted to the USCIS, the NYSDOL may notify the USCIS by sending a
written statement to the address listed on the USCIS Form I-918, Supplement B.

APPENDIX B8

USDOL Field Assistance Bulletin No. 2011-1, Certification of Supplement B Forms of U

Nonimmigrant Visa Applications, (2)(A) (April 28, 2011); Department of Labor U Visa Process and
Protocols Question-Answer (April 28, 2011). By certifying the enclosed Form I-918, Supplement B,
USDOL is in no way making a judgment as to the merits of CLIENTs U Visa application. The form is
only an acknowledgement that he has been, is being or is likely to be helpful in the investigation and/or
prosecution of the criminal activity. 8 U.S.C. 1101(a)(15)(U)(i).

APPENDIX B9

APPENDIX B9

APPENDIX B9

Page 1
Not Reported in F.Supp.2d, 2008 WL 1774584 (E.D.La.)
(Cite as: 2008 WL 1774584 (E.D.La.))

Only the Westlaw citation is currently available.

that certification of the U-Visa applications is appropriate.

United States District Court,

E.D. Louisiana.
Fredi GARCIA, Misbel Garcia, Jose Salvadoe Valladares, Denis Amadordiaz, Emilio Salgueto, Reyes
Agulia-Garcia, Gustavo Garcia, Ilsa Canales Jose
Efrain Garcia-Hernandez, Edgar Govanti GarciaMartinez, and Santos Lara, on Behalf of Themselves and all others Similarly Situated
v.
AUDUBON COMMUNITIES MANAGEMENT,
LLC, Audubon-Algiers, LLC, and Charles Rehyer.
Civil Action No. 08-1291.
April 15, 2008.
Vanessa Spinazola, The ProBono Project, New Orleans, LA, for Fredi Garcia, Misbel Garcia, Jose
Salvadoe Valladares, Denis Amadordiaz, Emilio
Salgueto, Reyes Agulia-Garcia, Gustavo Garcia,
Ilsa Canales Jose Efrain Garcia-Hernandez, Edgar
Govanti Garcia-Martinez, and Santos Lara, on Behalf of Themselves and all others Similarly Situated.
ORDER AND REASONS
HELEN G. BERRIGAN, District Judge.
*1 Before the Court are Emergency Motions
for U Visa Certification, filed by the plaintiffs,
Fredi Garcia, Misbel Garcia, Jose Salvadoe Valladares, Denis Amador-Diaz, Emilio Salgueto,
Reyes Agulia-Garcia, Gustavo Garcia, Ilsa Canales
Jose Efrain Garcia-Hernandez, Edgar Govanti Garcia-Martinez, and Santos Lara (Plaintiffs) (Rec.
Docs. 10 & 24). The defendants, Audubon Communities Management, LLC, Audubon-Algiers,
LLC, and Charles Rehyer (Defendants), oppose
FN1
the motions.
The motions are before the Court
on the briefs without oral argument. Having considered the memoranda and arguments of counsel,
the record, and the applicable law, the Court finds

FN1. The Defendants initially assert that

the Court does not have the authority to
issue the requested U-Visas. The Court
agrees. However, the Plaintiffs' motion
merely requests that the Court certify
Supplement B of Form I-918 so that the
Plaintiffs may apply for U-Visas. The Department of Homeland Security (Vermont
Service Center) is responsible for making
U-Visa determinations.
I. Background
The plaintiffs are non-documented workers
who have filed suit against their former employer
alleging that the Defendants improperly withheld
wages. In addition, the Plaintiffs allege claims under the Fair Labor Standards Act (FLSA) and the
Victims of Trafficking Protection Act, 18 U.S.C.
1581 et seq. Specifically, the Plaintiffs allege that
the employer-defendants promised housing and
weekly salaries in exchange for labor. The
Plaintiffs state that they were consistently underpaid, and that complaints were met with threats of
eviction. The Plaintiffs note that shortly after they
filed this lawsuit to recoup their wages, agents of
the Department of Homeland Security and Immigration and Customs Enforcement raided the employer-defendant's workplace and apprehended several of the named plaintiffs. The Plaintiffs now seek
U-Visa certifications because the apprehended
Plaintiffs have been detained since February 27,
2008, and are facing deportation.
II. Law & Analysis
According to the regulations promulgated by
the Department of Homeland Security, the purpose
of the U nonimmigrant classification is to provide a
safe-harbor for non-documented victims of qualifying crimes. 72 Fed.Reg. 53014-15. The regulations
state:

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

APPENDIX B10

Page 2
Not Reported in F.Supp.2d, 2008 WL 1774584 (E.D.La.)
(Cite as: 2008 WL 1774584 (E.D.La.))

Alien victims may not have legal status and,

therefore may be reluctant to help in the investigation or prosecution of criminal activity for fear
of removal from the United States. In passing this
legislation, Congress intended to strengthen the
ability of law enforcement agencies to investigate
and prosecute cases of domestic violence, sexual
assault, trafficking of aliens and other crimes
while offering protection to victims of such
FN2
crimes. See BIWPA,
sec. 1513(a)(2)(A).
Congress also sought to encourage law enforcement officials to better serve immigrant crime
victims.
FN2. BIWPA stands for the Battered Immigrant Women Protection Act of 2000.
Id.
There are several criteria in order to obtain UVisa status. The applicant(s) must demonstrate: (1)
that they have suffered substantial physical or mental abuse as a result of having been the victim of
qualifying criminal activity; (2) they must possess
information concerning the qualifying criminal
activity; and (3) the must have been helpful, are being helpful, or are likely to be helpful in the investigation or prosecution of the qualifying criminal
act. 8 U.S.C. 1101(a)(15)(U)(i). In addition, applicants must submit Supplement B to Form I918 to
file for a U-Visa. Supplement B is also known as
U Nonimmigrant Status Certification, and requires a qualified certifying official to affirm:
*2 the person signing the certificate is the head of
the certifying agency, or any person(s) in a supervisory role who has been specifically designated
by the head of the certifying agency to issue U
nonimmigrant status certifications on behalf of
that agency, or is a Federal, State, or local judge;
the agency is a Federal, State, or local law enforcement agency, or prosecutor, judge or other
authority, that has responsibility for the detection,
investigation, prosecution, conviction, or sentencing of qualifying criminal activity; the applicant

has been a victim of qualifying criminal activity

that the certifying official's agency is investigating or prosecuting; the petitioner possesses information concerning the qualifying criminal
activity of which he or she has been a victim; the
petitioner has been, is being, or is likely to be
helpful to an investigation or prosecution of that
qualifying criminal activity; and the qualifying
criminal activity violated U.S. law, or occurred in
the United States, its territories, its possessions,
Indian country, or at military installations abroad.
8 C.F.R. 214.14(c)(2)(i); see also 72
Fed.Reg. 53023-24.
In their motions, the Plaintiffs request that the
undersigned act as the certifying official for their
U-Visa applications. It is undisputed that a federal
judge is qualified to certify U-Visa applications.
8 U.S.C. 1101(a)(15)(U)(i)(III); 8 C.F.R.
FN3
214.14(a)(3)(ii).
However, the Defendants assert that the Plaintiffs are not eligible for U-Visa
status, and thus, the undersigned should not
certify their applications. Essentially, the Defendants argue that they were not the perpetrators of any
of the alleged qualifying criminal activity because
outside contractors were responsible for hiring and
firing the Plaintiffs. In addition, the Defendants
contend that the Plaintiffs have not alleged
substantial physical or mental abuse as required
to obtain U-Visas. Finally, the Defendants assert
that the Plaintiffs are not entitled to U-Visa certification because the Plaintiffs' allegations are confined
to a civil complaint, instead of criminal charges.
FN3. The regulations specifically states,
[j]udges neither investigate crimes nor
prosecute perpetrators. Therefore, USCIS
believes that the term investigation or prosecution should be interpreted broadly as
in the AG Guidelines. 72 Fed.Reg. 53020.
Based on the complaint and the exhibits attached to the Emergency Motions for U-Visa Certification, the Court finds that the Plaintiffs have
FN4
made a prima facie
showing that they have

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

APPENDIX B10

Page 3
Not Reported in F.Supp.2d, 2008 WL 1774584 (E.D.La.)
(Cite as: 2008 WL 1774584 (E.D.La.))

FN5
been a victim of qualifying criminal activity,
that they possess information concerning the qualifying criminal activity, and that they are likely to
be helpful to an investigation or prosecution of that
qualifying criminal activity. Specifically, the
Plaintiff's statements are evidence that legal coercion was used against the Plaintiffs to continue
working without pay. Indeed, the allegations detail
a pattern of conduct by the employer-defendants to
force the plaintiff-employees to work by taking advantage of the plaintiff-employees undocumented
immigration status. The statutory definition of
Involuntary Servitude states:
FN4. Prima Facie has two (2) definitions
in Black's Law Dictionary: 1. Sufficient
to establish a fact or raise a presumption
unless disproved or rebutted. 2. As an adjective, at first sight; on first appearance
but subject to further evidence or information. Both definitions apply in this matter.
FN5. The Plaintiffs assert that they have
been victims of several qualifying
crimes, including: Involuntary Servitude
and Human Trafficking.
*3 The term involuntary servitude includes a
condition of servitude induced by means of(A) any scheme, plan, or pattern intended to
cause a person to believe that, if the person did
not enter into or continue in such condition, that
person or another person would suffer serious
harm or physical restraint; or
(B) the abuse or threatened abuse of the legal
process.
22 U.S.C. 7102(5). In this matter, the Plaintiffs
specifically allege that when they complained of
failure to remit wages in a timely fashion, they
were told that they didn't have any rights in this
county and that we should shut up and keep
FN6
working if we didn't want [to be deported].
Rec. Doc. 10, Exhibit 2, 11. The Plaintiffs al-

lege that their demands for wages were met with

the threatened abuse of the legal process. Stated
another way, the Plaintiffs allege that their employers used the threat of deportation to force
continued labor. Thus, there is sufficient evidence for a prima facie showing of Involuntary
Servitude.
FN6. One plaintiff alleges that he
continued working without pay because
[he] was afraid that the bosses would call
the police to deport [him] as they had
said. Rec. Doc. 10, Exhibit 2, 12.
Furthermore, the Court notes that on-going
criminal investigation may not be necessary to certify a U-Visa application because the regulations
contemplate the future helpfulness of the applicant(s):
USCIS interprets helpful to mean assisting law
enforcement authorities in the investigation or
prosecution of the qualifying criminal activity of
which he or she is a victim ... The requirement
was written with several verb tenses, recognizing
that an alien may apply for U nonimmigrant
status at different stages of the investigation or
prosecution. By allowing an individual to petition
for U nonimmigrant status upon a showing that
he or she may be helpful at some point in the
future, USCIS believes that Congress intended
for individuals to be eligible for U nonimmigrant
status at the very early stages of an investigation.
This suggests an ongoing responsibility to cooperate with the certifying official while in U
nonimmigrant status.
72 Fed.Reg. 53019 (emphasis added). Indeed,
part of the regulations in the CFR state, U nonimmigrant status certification means Form I-918, Supplement B, U Nonimmigrant Status Certification,
which confirms that the petitioner has been helpful,
is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. 8 C.F.R.
214.14(a)(12). Therefore, the Defendants' argu-

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

APPENDIX B10

Page 4
Not Reported in F.Supp.2d, 2008 WL 1774584 (E.D.La.)
(Cite as: 2008 WL 1774584 (E.D.La.))

ment that the Plaintiffs do not qualify for U-Visa

certification is unconvincing. The Court concludes
that the Plaintiffs are entitled to U-Visa certification because they have provided sufficient evidence
to show that they may be helpful at some point in
the future to an investigation regarding qualifying
criminal activity.
The Defendants argument that the Plaintiffs
have failed to allege facts sufficient to constitute
substantial physical or mental abuse is not convincing. The Defendants note that the Plaintiffs
have neither alleged that they were victims of
battery or physical violence, nor victims of
extreme cruelty. The Court finds that physical or
mental abuse is not commensurate with battery or
physical violence. The regulations regarding
substantial physical or mental abuse state:
*4 Whether abuse is substantial is based on a
number of factors, including but not limited to:
The nature of the injury inflicted or suffered; the
severity of the perpetrator's conduct; the severity
of the harm suffered; the duration of the infliction
of the harm; and the extent to which there is permanent or serious harm to the appearance, health,
or physical or mental soundness of the victim, including aggravation of pre-existing conditions.
No single factor is a prerequisite to establish that
the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse
suffered was substantial. A series of acts taken
together may be considered to constitute substantial physical or mental abuse even where no
single act alone rises to that level.
8 C.F.R. 214.14(b)(1). In addition, the regulations state, [p]hysical or mental abuse means injury or harm to the victim's physical person, or
harm to or impairment of the emotional or psychological soundness of the victim. 8 C.F.R.
214.14(a)(8). In this matter, the Plaintiffs have alleged mental and physical suffering because of the
living conditions they were forced to endure. The
Plaintiffs state that without steady pay, they had to

find food in the trash. Not only have the Plaintiffs

alleged feeling shameful and sad because they
could not afford to buy food; they also allege physical distress from the lack of nourishment. Rec Doc.
10, Exhibit 3 14; Rec. Doc. 10, Exhibit 2 10.
Therefore, the Court finds that the Plaintiffs have
made a prima facie showing of substantial mental
and physical suffering.
Finally, the Defendants' contention that the
Plaintiffs are not entitled to U-Visa certification because the allegations pertain to the conduct of
third parties, not the conduct of Audubon itself, is
unconvincing. The regulations state that applicants
for U-Visa certification must be victims of qualifying crimes. The regulations do not mandate that a
specific entity be the alleged perpetrator of the
qualifying crimes. Consequently, at this point in the
proceedings, the Plaintiffs have made a prima facie
showing that they are entitled to U-Visa certification.
III. Conclusion
Accordingly,
The Plaintiffs' Emergency Motions for U-Visa
Certification are GRANTED (Rec. Docs. 10 & 24).
The Court will certify the Plaintiffs' U-Visa applications by signing the submitted Supplement B
forms, so long as no additions, deletions, or alterations are made to the Attachment A forms.
E.D.La.,2008.
Garcia v. Audubon Communities Management,
LLC
Not Reported in F.Supp.2d, 2008 WL 1774584
(E.D.La.)
END OF DOCUMENT

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

APPENDIX B10

FILED IN MY OFFICE
DISTRICT COURT CLERK
STATE OF NEW MEXICO
COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT COURT

Plaintiffs,
v.

No.

Defendants.

MOTION FOR U-VISA CERTIFICATION

For the reasons set forth in the accompanying Memorandum of Law, Plaintiffs
respectfully request that the Court certify that moving Plaintiff

has

been helpful, is being helpful, or likely will be helpful in the investigation or prosecution
of Defendants violations of NMSA 1978 30-24-3 (Intimidation of a Witness), NMSA
1978 30-25-1 (Perjury) and NMSA 1978 30-22-5 (Tampering with Evidence).
Plaintiffs request that the Court sign the attached Form I-918 so that Plaintiff

may

petition the U.S. Customs and Immigration Service (USCIS) for U visa relief, which if
granted would permit him to remain in the United States to complete presentation of
his claims brought pursuant to the New Mexico Minimum Wage Act (NMSA 50-4-1et
seq.) and the above-listed criminal charges. Counsel for Plaintiffs conferred in good

-1-

APPENDIX B11

faith with counsel for Defendants via email message on

and

Defendants declined to concur in this Motion.

Respectfully submitted,

Attorney for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on this
I served a true and
correct copy of the foregoing pleading on all parties entitled to notice via the electronic
file and serve system.

-2-

APPENDIX B11

STATE OF NEW MEXICO

COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT COURT

and

Plaintiffs,
v.

No.

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR U-VISA

CERTIFICATION
For the reasons set forth herein, Plaintiffs respectfully request that the Court
certify that moving Plaintiff

has been helpful, is being helpful, or

likely will be helpful in the investigation or prosecution of Defendants violations of

NMSA 1978 30-24-3 (Intimidation of a Witness), NMSA 1978 30-25-1 (Perjury) and
NMSA 1978 30-22-5 (Tampering with Evidence). Such judicial certification would
allow Plaintiff

to petition the U.S. Customs and Immigration Service (USCIS) for U

visa relief, which if granted would permit him to remain in the United States to
complete presentation of his claims brought pursuant to the New Mexico Minimum
Wage Act (NMSA 50-4-1et seq.) and the above-listed criminal charges.
1

Plaintiff
lawsuit as

normally uses only his paternal last name and is therefore listed in the caption of this
.

-1-

APPENDIX B11

I. Procedural History
Plaintiffs filed the instant lawsuit on

on their own behalf and on

behalf of a class of similarly-situated employees to recover unpaid minimum and

overtime wages they are owed by Defendants. In their Complaint, Plaintiffs also allege
that Defendants unlawfully retaliated against Plaintiff

by terminating his

employment when he attempted to recover the wages he is owed. Plaintiffs filed their
Motion to Proceed as a Collective Action on
Compel Discovery on

Defendants filed a Motion to

Both Motions are currently pending before the

Court.
II. This Court Should Certify Plaintiff Soy Lopes Application for U Visa Relief.
A. Plaintiff
Offers a Preliminary Showing that He Is Qualified for
a Nonimmigrant U Visa.
Congress created the U visa program with the passage of the Victims of
Trafficking and Violence Prevention Act of 2000 (TVPA). See Pub. L. No. 106-386,
1513, 114 Stat. 1464, 1533-37; see also 72 FR 53014-15. The purpose of the U visa
program is to strengthen the ability of law enforcement agencies to investigate and
prosecute crimes enumerated in the TVPA (which include witness tampering,
obstruction of justice and perjury) by granting qualifying witnesses to those crimes
nonimmigrant status to remain in the United States to assist law enforcement in the
investigation or prosecution of such crimes. 8 U.S.C. 1101(a)(15)(U)(iii); 72 Fed. Reg.
53014-15 (Alien victims may not have legal status and, therefore may be reluctant to
help in the investigation or prosecution of criminal activity for fear of removal from the
United States.) (Congress also sought to encourage law enforcement officials to better
serve immigrant crime victims.).
-2-

APPENDIX B11

To be eligible for U visa relief, a person (1) must have suffered substantial
physical or mental abuse as a result of having been a victim of [a] criminal activity
enumerated by the Act; (2) must posses[] information concerning the qualifying
criminal activity; and (3) must have been helpful, is being helpful, or is likely to be
helpful in the investigation or prosecution of the qualifying criminal act. See 8 U.S.C.
1101(a)(15)(U)(i). The TVPAs qualifying criminal acts include, inter alia: (1) witness
tampering; (2) obstruction of justice; and (3) perjury, as well as any similar activity in
violation of federal, state, or local criminal law. See 8 U.S.C. 1101(a)(15)(U)(iii).
i.

Plaintiff

Is A Victim of Witness Intimidation.

In New Mexico, the crime of Intimidation of a Witness is committed when any

person knowingly:
intimidat[es] or threaten[s] any witness or person likely to become a
witness in any judicial, administrative, legislative or other official
cause or proceeding for the purpose of preventing such individual
from testifying to any fact, to abstain from testifying or to testify
falsely
NMSA 1978 30-24-3(A)(2)
It is not necessary that a judicial proceeding be underway when an act of
intimidation occurs for criminal liability to adhere to a defendant who intimidates a
witness. State v. Clements, 146 N.M. 745, 749 (N.M. App. 2009); certiorari denied 147
N.M. 362. (Statute criminalizing intimidation of a witness does not require that a judicial
proceeding be instituted at the time defendant engaged in the improper intimidation of a
person likely to become a witness in any judicial proceeding.). Further, proof that the
potential witness was actually intimidated is not required -- it is the defendants intent to
intimidate that is queried. State v. Fernandez, 117 N.M. 673, 679-680 (N.M. App. 1994).

-3-

APPENDIX B11

Here, on

, Plaintiff

delivered to Defendants a letter

declaring that he and other workers at the

had formed a workers

committee to attempt to resolve a series of problems that these employees were

experiencing in the workplace. See Pl. Ex. 1, Letter to
Plaintiff

wrote to Defendants that [t]he most pressing of these

problems is that some of us are not being paid the city minimum wage of $9.85 or
overtime pay. Id. In response, Defendants summarily terminated Mr.
employment.2
Defendants violated the criminal anti-retaliation provisions of the New Mexico
Minimum Wage Act (NMSA 1978 50-4-26(A), 50-4-26.1) and the federal Fair Labor
Standards Act (29 U.S.C. 215, 216) when they terminated Plaintiff

in

retaliation for bringing forth his wage claim. Kasten v. Saint-Gobain Performance
Plastics Corp., 131 S. Ct. 1325 (2011) (Employers are prohibited from retaliating against
employees for making informal, non-judicial and non-administrative complaints
regarding unpaid wages.).
Defendants also committed an act of witness intimidation in violation of NMSA
1978 30-24-3(A)(2) when they terminated Plaintiff
did so by demonstrating to Plaintiff

employment. Defendants

that, should he pursue his wage claims,

they would take action against him. Though Defendants did not directly inform Plaintiff
that they fired him in order to prevent him from pursuing and testifying in a
wage case, such proof is not required. State v. McGee, 2003, 135 N.M. 73, 77 (Proof of
defendant's intent to retaliate or to exact pay back, for purposes of offense of

The other signatory to the letter, Plaintiff

Defendants when the letter was delivered.

had already terminated his employment with

-4-

APPENDIX B11

retaliation against a witness, is rarely provable by direct evidence, and thus

circumstantial evidence must often be relied upon for its proof.) Indeed, Defendants
message was clear: Should Plaintiff

seek to recover the wages he worked

for, Defendants would (and did) take action against him. Thus, Defendants violated
NMSA 1978 30-24-3(A)(2) when they terminated Plaintiff

employment in

an attempt to prevent him from participating in the instant lawsuit.

ii.

Plaintiff

Is A Victim of Tampering with Evidence.

Tampering with evidence consists of destroying, changing, hiding, placing or

fabricating any physical evidence with intent to prevent the apprehension, prosecution
or conviction of any person3 NMSA 1978 30-22-5. In a prosecution for tampering
with evidence, when there is no other evidence of the specific intent to disrupt an
investigation, intent is often inferred from an overt act of the defendant. State v. Garcia,
149 N.M. 185, 192 (2011) ([Defendants] multiple overt acts made clear his intent to
thwart law enforcement by jettisoning key evidence.).
Here, Defendants sought to evade civil and criminal liability for failing to pay their
employees minimum and overtime wages by discarding records of their employees
hours worked. See Pl. Ex. 2, Letter to

, dated

. They did so

despite the fact that they were required by law to maintain such records. NMSA 1978
50-4-9. When Defendants destroyed what would be the key evidence in an
investigation/prosecution of civil and criminal violations of the New Mexico Minimum

Failure to pay wages owed is a criminal offense. NSMA 1978 50-4-26(A) (An employer who violates
any of the provisions of the Minimum Wage Act is guilty of a misdemeanor and upon conviction shall be
sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.).

-5-

APPENDIX B11

Wage Act, they made clear their intent to thwart law enforcement, and thus committed
an act of Tampering with Evidence.
Similarly, Defendants falsified wage records submitted to the New Mexico
Department of Workforce Solutions (DWS) in an attempt to evade law enforcement
notice of their criminal refusal to pay wages for hours worked. Compare Pl. Ex. 3,
Employers Quarterly Wage and Contribution Reports submitted by Defendants to
DWS with Pl. Ex. 4, Plaintiff

records of hours worked. For example, in the

fiscal quarter running from

through

earned approximately $

in wages. For this period, Defendants reported

to DWS that they paid only $

the

in wages to Plaintiff

through

Similarly, during

quarter, Defendants reported to the State

of New Mexico that they paid Plaintiff

him approximately $

, Plaintiff

in wages when they in fact paid

in wages. Defendants thus committed another act of

Tampering with Evidence.

iii.

Plaintiff

is a Victim of Defendants Perjury.

A person commits an unlawful act of perjury when they make a false statement
under oath, affirmation or penalty of perjury, material to the issue or matter involved in
the course of any judicial, administrative, legislative or other official proceeding or
matter, knowing such statement to be untrue. NMSA 1978 30-25-1; State v.
Gallegos, 98 N.M. 31, 31 (NM. App. 1982) overruled on other grounds by State v.
Benavidez, 127 N.M. 189 (1999).
In New Mexico, employers are required to submit quarterly Wage and
Contribution reports to the Department of Workforce Solutions wherein each employer

-6-

APPENDIX B11

must certify the wages paid to its employees for that quarter so that the State can
determine each employers Unemployment Insurance tax responsibility. See NMSA
1978 51-1-9; NMAC 11.3.400 et seq. Employers are required to sign the Wage and
Contribution reports that they submit. NMAC 11.3.400.404.B. When such reports are
signed, the employer certifies that the report is true and correct according to law and
department regulations See Pl. Ex. 3, Employers Quarterly Wage and Contribution
Reports submitted by Defendants.
In this case, Defendants paid Plaintiff

in cash, off-the-books during

much of his tenure and thus committed perjury when they submitted reports to the New
Mexico Department of Workforce Solutions that vastly under-reported the wages paid to
Plaintiff

Compare Pl. Ex. 3 with Pl. Ex. 4. For example, in the fiscal quarter

running from

through

, Plaintiff

earned

approximately $

in wages. For this period, Defendants reported to DWS that

they paid only $

in wages to Plaintiff

Similarly, during the

quarter, Defendants reported to the State of New

Mexico that they paid Plaintiff
approximately $

in wages when they in fact paid him

in wages. Defendants thus committed acts of perjury when

they submitted sworn and untruthful reports to DWS.

B. Plaintiff
Suffered Substantial Mental Abuse as a Result of
Defendants Crimes.
To be eligible for U visa relief, an alien must have suffered substantial physical
or mental abuse as a result of having been a victim of criminal activity enumerated by
the Act. See 8 U.S.C. 1101(a)(15)(U)(iii)(1). To determine whether suffered abuse is
substantial, a number of factors may be considered, including:
-7-

APPENDIX B11

The nature of the injury inflicted or suffered; the severity of the

perpetrators conduct; the severity of the harm suffered; the
duration of the infliction of the harm; and the extent to which there
is permanent or serious harm to the appearance, health or physical
or mental soundness of the victim A series of acts taken together
may be considered substantial physical or mental abuse even
where no single act alone rises to that level.
8 C.F.R. 214.14(b). Ultimately, the determination for eligibility for U visa interim
relief, is made by USCIS on a case-by-case [basis], using [these] factors as
guidelines Through these factors, USCIS will be able to evaluate the kind and degree
of harm suffered by the individual applicant, based upon the applicants experience. 72
FR 53018.
Plaintiff

suffered substantial mental abuse as a result of Defendants

criminal activities. In her attached evaluation, Licensed Psychotherapist

, LPCC, describes how, after Plaintiff

was unlawfully terminated from

his employment, he fell into a deep depression and anxiety regarding his inability to
acquire any work and support his family. See Pl. Ex. 5, Psychotherapist evaluation
dated

. The psychotherapist notes that [Plaintiff

] was

angry at himself and that he questioned himself for having reported the exploitation.
Id. She notes that [h]e would feel so bad that he often cried alone during the day and
that [w]hen his family returned for the day, he would be distraught, listless and not
willing or able to take part in their activities. He did not want anything to do with others.
Id.
The psychotherapist goes on to note that Mr.

had a history of experience

with peonage, and he found himself trapped in it again. It recently took him over two
years to finally decide to try to do something about it. His efforts only resulted in his

-8-

APPENDIX B11

being fired. Id. The psychotherapist describes how Plaintiff

felt like he

would rather give up trying than continue to live in that exploitative manner and that
[h]e lost his appetite since all food was tasteless to him. The report finds that
continues to feel the effects of the long-term exploitation by his former employers and
that [h]e often feels that he will never be able to overcome the struggles that have
stemmed from his abusive financial and emotional exploitation. Id.
C. Plaintiff
Possesses Information about Defendants
Involvement in the Crimes of Intimidation of a Witness, Tampering with
Evidence and Perjury.
To receive U visa relief, a person must possess[] information concerning the
alleged criminal activity. See 8 U.S.C. 1101(a)(15)(U)(i)(II); see also 8 C.F.R.
214.14(b)(2) (the petitioner must have knowledge of the details and possess specific
facts sufficient to show that the petitioner has, is, or is likely to assist in
prosecution of the crimes.) Because Plaintiff

the

is the principal witness to the

circumstances of his unlawful termination and his actual hours worked, he possesses
information about Defendants commission of the crimes of Witness Intimidation,
Tampering with Evidence and Perjury described above.
D. Plaintiff
Will Be Helpful in the Investigation and Prosecution
of Defendants Crimes.
The final requirement for U visa relief is that the petitioner has been helpful, is
being helpful, or is likely to be helpful to the law enforcement agency or judge
investigating or prosecuting the crime. See 8 U.S.C. 1101(a)(15)(U)(i).
Here, Plaintiffs have brought their charges before the Santa Fe County District
Attorney. Plaintiff

will make himself available to the district attorney should

-9-

APPENDIX B11

she initiate an investigation. If criminal prosecution ensues, Plaintiff

will

assist the district attorney in any way requested.

III.

This Court May Certify that Plaintiff

Is Assisting or Will
Assist in the Investigation of Defendants Crimes.

As set forth above, a person applying for U nonimmigrant status must provide a
certification from a law enforcement official or judge that the person has been helpful, is
being helpful, or is likely to be helpful in the investigation or prosecution of an
enumerated crime. See 8 U.S.C. 1184(p)(1). State court judges may certify U visa
applications. See 8 U.S.C. 1101(a)(15)(U)(i)(III); 8 C.F.R. 214.14(a)(3)(ii); Garcia v.
Audubon Communities Mgmt., LLC, 2008 WL 1774584 *2 (E.D. La. 2008). Above,
Plaintiff

makes a prima facie showing that he will be eligible for U visa relief

because he is the victim of enumerated crimes, has suffered substantial mental abuse
as a result of those crimes, and he is being and will be helpful in the investigation and
prosecution of those crimes.
Where a petitioner makes a prima facie showing that they will be eligible for U
visa relief, USCIS regulations direct the certifying official to complete and sign Form I918 Supplement B, U Nonimmigrant Status Certification. See 8 C.F.R.
214.14(c)(2)(i). A proposed completed Form I-918 is attached hereto

WHEREFORE, Plaintiff

respectfully requests that the Court grant

Plaintiffs Motion for U Visa Certification and sign

Form I-918, so that Plaintiff

Soy Lopes may apply to the USCIS for nonimmigrant U visa relief.

- 10 -

APPENDIX B11

By email:
U.S. Department of Labor, Wage & Hour Division
170 S. Independence Mall West, Suite 850 W
Philadelphia, PA 19106-3317
Re:

Request for U-Visa Certification MM

Employer: KMM1

Dear

I am writing on behalf of MM for whom I requested a U-Visa Certification pursuant to

the U.S. Department of Labor (USDOL) Field Assistance Bulletin and U-Visa Process and
Protocols.2 Ms. M alleged the qualifying criminal activity of fraud in foreign labor contracting,
which arose in the context of her employment with Mr. M. During a telephone conversation on
October 24, 2013, you alerted me to the likelihood that the USDOL will narrowly interpret the
fraud in foreign labor criminal statute as to apply only to contracting that occurred on U.S. soil,
thereby curtailing the USDOLs ability to certify U-Visas under this qualifying criminal activity
for a broad range of exploitative and unlawful behavior. Such an interpretation is contrary to
established case law, would constrain the scope of the law, and would exclude a significant
population of vulnerable and exploited workers from immigration remedies to which they are
entitled.
I.

BACKGROUND ON FRAUD IN FOREIGN LABOR CONTRACTING

The 2008 Reauthorization of the Trafficking Victims Protection Act created a new
federal criminal activity of fraud in foreign labor contracting. 18 U.S.C. 1351. Violations are
punishable by imprisonment for not more than five years. One engages in fraud in foreign labor
contracting when an individual knowingly and with intent to defraud recruits, solicits, or hires a
person outside the United States or causes another person to recruit, solicit, or hire a person
outside the United States, or attempts to do so, for purposes of employment in the United States
by means of materially false or fraudulent pretenses, representations or promises regarding that
employment. 18 U.S.C. 1351. The 2013 Reauthorization of the Violence Against Women
Act added fraud in foreign labor contracting as a qualifying criminal activity for U-Visa
certification. 8 U.S.C. 1101(a)(15)(U)(iii).

1

Although they share a last name, MM and KMM are not related.
USDOL Field Assistance Bulletin No. 2011-1, Certification of Supplement B Forms of
U Nonimmigrant Visa Applicants, (2)(A) (April 28, 2011); Department of Labor U Visa
Process and Protocols Question-Answer (April 28, 2011). By certifying the enclosed Form I918, Supplement B, USDOL is in no way making a judgment as to the merits of Ms. Moeletsis
U-Visa application. The form is only an acknowledgement that she has been, is being or is
likely to be helpful in the investigation and/or prosecution of the criminal activity. 8 U.S.C.
1101(a)(15)(U)(i).

APPENDIX B12

II.

THE FRAUD IN FOREIGN LABOR CONTRACTING STATUTE PROVIDES

FOR EXTRATERRITORIAL JURISDICTION.
A. Federal Criminal Statutes May Have Extraterritorial Reach Even Where It
Is Not Explicitly Articulated In The Statute.

It is well-settled that federal criminal statutes may be interpreted to provide for

extraterritorial effect even when it is not specifically articulated in the statutory language itself.
In United States v. Bowman, 260 U.S. 94 (1922), the Supreme Court held that a presumption
against extraterritoriality is not appropriate for certain criminal statutes which are, as a class, not
logically dependent on their locality for the governments jurisdiction, but are enacted because of
the right of the government to defend itself against obstruction, or fraud wherever perpetrated.
Bowman, 260 U.S. at 97-98. As numerous federal courts of appeals have recognized, Bowman
established the rule that Congress need not expressly provide for extraterritorial application of a
criminal statute if the nature of the offense is such that it may be inferred. United States v.
Plummer, 221 F.3d 1298, 1304-1305 (11th Cir. 2000) (quoting United States v. McAllister, 160
F.3d 1304, 1307-08 (11th Cir. 1998), reh'g and reh'g en banc denied, 176 F.3d 496 (11th Cir.
1999), cert. denied, 528 U.S. 853 (1999)).
Relying on Bowman, courts across the country have routinely inferred congressional
intent to provide for extraterritorial jurisdiction over foreign offenses that cause domestic harm.
See, e.g., United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009) (production of child
pornography photographs abroad); United States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir.
1984) (conspiracy to murder government agents and assault of government agents abroad);
United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir. 1980) (attempt to import marijuana
into the United States); United States v. Baker, 609 F.2d 134, 137-39 (5th Cir. 1980) (possession
with intent to distribute and conspiracy to import marijuana); see also United States v. VasquezVelasco, 15 F.3d 833, 839 n.4 (9th Cir. 1994) (murder abroad to further a drug-trafficking
enterprise); United States v. Harvey, 2 F.3d 1318, 1329 (3d Cir. 1993) (possession of child
pornography made abroad); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.
1991) (accessory after-the-fact to kidnapping and murder of government agent abroad); Chua
Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984) (conspiracy to import drugs into
the United States).
The Supreme Courts decision in EEOC v. Arabian American Oil Company, 499 U.S.
244 (1991) which held that Title VII of the Civil Rights Act of 1964 does not have
extraterritorial reach because it lacks a clear Congressional statement on the matter does not
change the Bowman analysis as it applies to criminal statutes. See Plummer, 221 F.3d at 1305,
n.4; United States v. Dawn, 129 F.3d 878, 882 n. 7 (7th Cir. 1997) (Bowman recognizes an
exception to the presumption against extraterritorial intent for criminal statutes ); Kollias v.
D & G Marine Maint., 29 F.3d 67, 71 (2d Cir. 1994).

2

APPENDIX B12

B. The Plain Language of the Statute Clearly Demonstrates Congressional

Intent for Extraterritorial Jurisdiction.
The statutes title, Fraud in Foreign Labor Contracting, and statutory provisions that
provide for the hiring of a person outside the United States demonstrate clear intent of
extraterritorial jurisdiction.3 Courts have confirmed Congressional intent to provide for
extraterritoriality of criminal statutes with similar language. See Pasquantino v. United States,
544 U.S. 349, 371-72 (2005) (noting that the federal criminal wire fraud statutes prohibition of
frauds executed in interstate or foreign commerce indicates that this is surely not a statute in
which Congress had only domestic concerns in mind (internal quotation marks omitted));
United States v. Clark, 435 F.3d 1100, 1106 (9th Cir. 2006) (finding extraterritorial jurisdiction
of statute titled Engaging in illicit sexual conduct in foreign places and reaching people who
travel[] in foreign commerce); see also United States v. Weingarten, 632 F.3d 60, 66 (2d. Cir.
2011). The statutes plain language, which describes the international scope of the unlawful act
as the hiring of a person outside the United States . . . for purposes of employment in the United
States by means of materially false or fraudulent pretenses, representations or promises, clearly
demonstrates Congresss intent to prohibit acts that are not only of domestic concerns.
Pasquantino, 544 U.S. at 371.
Beyond the plain extraterritorial language in the fraud in foreign labor contracting
criminal statute, an intention of extraterritoriality may be inferred from . . . the nature of the
harm the statute is designed to prevent, from the self-evident international focus of the statute,
and from the fact that limit[ing] [the statutes] prohibitions to acts occurring within the United
States would undermine the statutes effectiveness. United States v. Belfast, 611 F.3d 783,
810-811 (11th Cir. 2010) (quoting Plummer, 221 F.3d at 1310). It is hard to dispute that the
fraud in foreign labor contracting statute has anything but an international focus. Further, one
can easily infer an intention of extraterritoriality based on the harm the statute intends to prohibit,
the practice of recruiting foreign workers, in their home countries, with promises of fair working
conditions and wages, only to exploit them after they have arrived in the United States. The
fraud in foreign labor contracting criminal statute was passed to address this common and
inhumane practice. 154 Cong. Rec. H10904 (Dec 10, 2008). In an explanatory statement drafted
by the Judiciary Committee of the House of Representatives, Representative Berman explained
that the primary purpose of the fraud in foreign contracting provision was to create
accountability for employers who lured people to the United States under false pretenses,
particularly under guest visa programs. To limit its reach to domestic contracting only would
significantly undermine the statutes effectiveness, and run counter to the purpose articulated
by lawmakers. Id.

By comparison, the 2008 Amendments to the Trafficking Victims Protection Act

established extraterritorial jurisdiction over certain peonage and trafficking offenses that are
otherwise inherently domestic crimes and contain no reference to extraterritoriality. See 18
U.S.C. 1581 (peonage); 1583 (enticement into slavery); 1584 (sale into involuntary servitude);
1589 (forced labor); 1590 (human trafficking); 1591 (sex trafficking).
3

APPENDIX B12

Because the statutes language, intent, and legislative history assume extraterritorial
jurisdiction, the U-Visa regulations requirement that the qualifying criminal activity occurred
in the United States . . . or violated a U.S. federal law that provides for extraterritorial
jurisdiction to prosecute the offense in a U.S. federal court is met. 8 C.F.R. 214.14(b)(4)
(emphasis added).4 Indeed, in at least one instance, criminal defendants were convicted in
federal court under this statute without question as to the extraterritorial application of the
statute. United States v. Askarkhodjaev, 09-00143-01-CR-W-ODS (W.D. Mo.).
III.

MS. M, A VICTIM OF FRAUD IN FOREIGN LABOR CONTRACTING,

EXPERIENCED THE KIND OF VICTIMIZATION THE LAW WAS
INTENDED TO PROHIBIT.

Ms. M was recruited by Mr. M, a friend of her extended family, in her home country of
XXXX. Mr. M sought Ms. Ms labor as a domestic worker in the United States, where he was to
be posted as the Legal Counsellor of the Mission of XXXX to the United Nations. Mr. M met
with Ms. Ms family, gained their trust, and made important promises to Ms. M and her mother
about the terms and conditions of her employment, most of which were memorialized in a
contract signed by both parties in XXXX. Upon arrival in the United States, Ms. M quickly
learned that Mr. M had no intention of adhering to any of the agreed-upon terms of her
employment; Mr. M knowingly made those promises with intent to defraud . . . by means of
materially false or fraudulent pretenses, representations or promises. 18 U.S.C. 1351.
This fact pattern is all too common. See, e.g., Statement of Martina E. Vandenberg,
Attorney Jenner & Block, LLP, Legal Options to Stop Human Trafficking: Hearing Before

4

The Federal Register commentary that addresses the U-Visa regulation, issued by the
Department of Homeland Security, supports this reading of the regulation. The commentary
explains that:
this rule provides that criminal activity that has occurred outside of the United
States, but that fits within a type of criminal activity listed in Section
101(a)(15)(U)(iii) of the INA, will constitute a qualifying criminal activity if it
violates a federal statute that specifically provides for extraterritorial jurisdiction. .
. . Congress has enacted a variety of statutes governing criminal activity occurring
outside the territorial limits of the United States. These statutes establish
extraterritorial and federal, criminal jurisdiction. Statutes establishing
extraterritorial jurisdiction generally require some nexus between the criminal
activity and U.S. interests.
72 Fed. Reg. 53014, 53020. The commentary goes on to cite several statutes as examples, which
do not explicitly articulate extraterritorial jurisdiction but have been interpreted by courts to
apply extraterritorially: [f]or example, pursuant to 18 U.S.C. 2423(c), the United States has
jurisdiction to investigate and prosecute cases involving U.S. citizens or nationals who engage in
illicit sexual conduct outside the United States, such as sexually abusing a minor. See also 18
U.S.C. 32 (destruction of an aircraft); 15 U.S.C. 1 (extraterritorial application of the Sherman
Act governing antitrust laws).

4

APPENDIX B12

Subcomm. on Human Rights and the Law of the Senate Comm. on Judiciary, 110th Cong. 24
(2007) (describing the frequency of individuals trafficked to work as domestic workers for
diplomats); Statement of Florrie Burke, Safe Horizon, Combating Modern Slavery:
Reauthorization of Anti-Trafficking Programs: Hearing Before House Comm. on the Judiciary,
110th Cong. 83 (2007) (relating frequent instances of workers coming to the United States with
promises of work conditions and format that were never fulfilled by their traffickers). It is not
unusual for employers to exploit personal relationships with victims or their families to gain their
trust or prey on cultural or ethnic familiarity. See Vandenberg Statement, 110th Cong. 24
(providing examples when traffickers travel to small villages and convince entire families that a
job opportunity will be good for the family). This form of recruitment inherently occurs on
foreign soil. Interpreting the fraud in foreign labor contracting statute to exclude this type of
unlawful activity drastically undermines the laws effectiveness. The statute prohibits actions
that are quintessentially international in scope and warrants extraterritorial application.
Belfast, 611 F.3d at 811.
**********
Ms. M respectfully requests that you find she has presented credible allegations of
qualifying criminal activity by her former employer and she has been and is likely to be helpful
in any investigation or prosecution, and accordingly certify Form I-918, Supplement B. If you
need any additional information or have questions, please contact me at (718) 943-8641.
Sincerely,
Dana Sussman
Attorney for MM

5

APPENDIX B12

COVER LETTER FOR U VISA APPLICATION

Date
Department of Homeland Security
USCIS Vermont Service Center
VAWA Unit U Visa Petition
75 Lower Welden Street
St. Albans, VT 05479-0001
RE: LAST NAME, First Name
I-918 Application for U Nonimmigrant Visa
Application for Advance Permission on Form I-192
RE: DERIVATIVE NAME
Petition for Qualifying Family Member of U-1 Recipient on Form I-918A
Application for Advance Permission on Form I-192
Application for Work Authorization on Form I-765
Via Certified Mail
Dear Adjudicating Officer,
We are writing to submit the above mentioned application for a U visa.
The applicant meets the U visa eligibility requirements under 8 U.S.C.
1101(a)(15)(U)(i), as she is the victim of CRIMES. The criminal activity occurred in the
United States in CITY, STATE. [FURTHER DESCRIPTION OF CRIMINAL
ACTIVITY.] [FURTHER DESCRIPTION OF HARM SUFFERED]. [FURTHER
DESCRIPTION OF HELPFULNESS IN INVESTIGATION.]
We enclose Form I-192 to waive the grounds of inadmissibility because she entered
without inspection. Please consider all of the enclosed documentation in support of both
the I-918 and I-192.
Enclosed in support of her U visa application please find the following:
1.
Form G-28 authorizing my representation,
2.
Form I-912, Request for Fee Waiver
3.
Form I-918, Petition for U Nonimmigrant Status
4.
Form I-192, Application for Advance Permission to Enter as Nonimmigrant
5.
Form I-918B, Certification form from the LAW ENFORCEMENT AGENCY, dated
_____, certifying that the applicant has been helpful in the investigation and/or
prosecution of the criminal activity,
6.
AGENCY Certification Protocol;
7.
A copy of relevant Penal Code sections,
8.
The applicants declaration with translation,
9.
A letter from the applicants therapist,

APPENDIX C1

10.
11.
12.
13.

A copy of the identity page of the applicants passport,

A copy of the applicants birth certificate with translation,
Birth certificates of the applicants U.S. Citizen children,
Letters of support from the victims community members

In support of her DERIVATIVE application as a derivative, we enclose the following:

14.
Form G-28 authorizing my representation,
15.
Fee waiver request in lieu of the biometrics fee,
16.
Form I-918A,
17.
Form I-192 with fee waiver request,
18.
A copy of birth certificate with translation showing the relationship,
19.
A copy of the identity page of her valid passport, and
20.
Form I-765, fee waiver request, and 2 photographs for the issuance of her (a)(20) EAD if
her I-918A is approved.
Thank you very much for your consideration and assistance. If you require anything further,
please contact me.
Sincerely,
Attorney at Law
Address
City, State Zip
Telephone
Email

APPENDIX C1

APPENDIX C2

APPENDIX C2

APPENDIX C3

APPENDIX C3

APPENDIX C3

APPENDIX C3

APPENDIX C4

APPENDIX C4

APPENDIX C4

APPENDIX C4

APPENDIX C4

APPENDIX C4

APPENDIX C4

APPENDIX C4

Addendum for FORM I-918, Petition for U Nonimmigrant Status for CLIENT
NAME, (Alien Number if applicable)
Part 2. Additional Information
Question 8:
I received an order of removal in absentia on DATE, as I did not receive notice of my
hearing date. I am planning to file a motion to reopen this order of removal.
Part 3. Processing Information
Question 1(b), (c), and (d):
I was arrested by immigration officials on DATE and cited for entry without inspection. I
was later ordered removed in absentia on DATE, as I did not receive notice of my
hearing date.
I have been stopped while driving on a few occasions between DATES for traffic
violations, including speeding, no seat belt, running a stop sign, and driving without a
license or insurance in TOWN, STATE, and nearby, perhaps in TOWN, STATE. I have
paid in full for every traffic citation I have been issued.
Question 1(g)
I have been detained by Immigration and Customs Enforcement on DATE due to a prior
order of removal.
Question 2
I do not receive public benefits on my own behalf, but my U.S. citizen daughter is
enrolled in publicly-funded medical insurance, and receives food stamps.
Question 11(a), (e)
Please see my attached sworn declaration. At EMPLOYER, where I worked, I was
present when my employer sexually harassed other female employees, including touching
them inappropriately.
Question 14(b), (d)
I was ordered removed in absentia on DATE, as I did not receive notice of my hearing
date.

APPENDIX C5

SWORN DECLARATION OF CLIENT NAME

I, CLIENT, declare under penalty of perjuring, pursuant to 28 U.S.C. 1746, that the
following information is true and accurate to the best of my knowledge:
1.

My name is CLIENT. My date of birth is BIRTHDATE. I currently live in

CITY, STATE.

2.

I was born and raised in CITY, Mexico, and then migrated to the United
States to join my familymy mother and father. I had been living with my
grandparents in Mexico, and we had a very difficult life. I wanted to join
my parents here, and I thought that I could build a better life in the United
States.

3.

I entered the United States without permission in DATE, crossing into

Arizona by foot, and then travelled to STATE to join my family.

4.

I began working for EMPLOYER, in CITY, STATE on DATE. I was very

happy at first to be working there. I worked doing TASKS.

5.

But things got much worse when I began to work for MANAGER at
EMPLOYER. I was transferred to the DEPARTMENT of the EMPLOYER in
YEAR. That is when MANAGER became my direct supervisor during the
night shift.

6.

MANAGER harassed me and other immigrant employees who worked in

my department. He would sometimes call us things like wetback or
aliens, or dirty, which I did not like. He always yelled at us if we ever
said anything back to him, as if we were defying him. It made me feel
uncomfortable to be around him.

7.

When I started working with MANAGER, my co-workers told me to watch

out for him. They said that he liked to touch the women in inappropriate
places and say unpleasant things to them.

8.

For the first few weeks, I was able to avoid MANAGER. But after a few
weeks, it was harder and harder to avoid him because many people had
quit, and there were only a few of us left in the DEPARTMENT. At first,
MANAGER approached me and looked at me in a sexual way, and make
comments that made me feel uncomfortable.

9.

But after a while, he started to come up behind me while I was working

and touch my bottom and inside my legs. The first time he did it, I
couldnt believe it was happening. I felt like I could not move. I was so
scared. I tried to say something but I felt like I was frozen. He just

APPENDIX C6

breathed on me and laughed, and then turned and walked away like
nothing had happened.
10.

My co-worker and I talked a lot about what to do in the break room. She
told me that there were other women who had problems with MANAGER
in the past. She told me that she had heard that MANAGER had even
violated another girl in the past in the storage room, but that the girl had
just quit because she was too scared to report what had happened to the
management. When I heard this, I felt very scared.

11.

I was afraid to come to work, because I was scared that MANAGER would
hit me, fire me, or call immigration against me. I had to support my
family, so I kept coming to work. I tried to avoid MANAGER, but it was
difficult. For the next few months, MANAGER kept coming up to me and
touching me while I was working. Sometimes he would touch my legs and
my bottom. Sometimes he would reach around and grab my breasts. Each
time he would laugh and call me his baby.

12.

I felt anxious and nervous about going to work. My chest felt heavy, and
my heart felt like it was always beating too fast. I was upset and sad about
what was happening at work and I did not want to do things I used to do.
I got headaches, stomachaches, and threw up sometimes. I was so
frustrated because I could not say anything about what MANAGER was
doing to me and the other workers. I felt like I was being silenced.

13.

One day, it just became too much for me. That day, MANAGER told me
that hed be waiting for me after work and that he was going to take me
out for a good time. I was so scared that he was going to try to force me
to sleep with him. I didnt know what to do, so I texted my cousin, and
asked her to meet me after work, and if she could bring her boyfriend
with her. They came to meet me, so I avoided having to deal with
MANAGER. They knew I was very scared and upset. COUSIN made me tell
her what was happening with MANAGER. She told me that it was not my
fault and that I could get help. I decided that I had to quit because I was
too scared to work. I never called my work; I just stopped going. My
cousin picked up my last paycheck for me the week after.

14.

I never tried to report MANAGER to his boss or the police at the time,
because I was scared. I was so scared he would do something against me,
that he would hit me or do something worse. I was afraid he would call
immigration. I had to keep silent because my job was on the line and my
whole life was on the line because of deportation.

15.

My COUSIN helped me to get in touch with COMMUNITY ORGANIZATION,

where I met with a lawyer. The lawyer told me that what was happening
to me was illegal, even though I was undocumented. My lawyer told me

APPENDIX C6

that she was going to help me file a complaint with the EEOC to fix what
was happening. I wanted to tell the EEOC everything that had happened. I
wanted them to know my perspective and to let them know how wrong it
was. One of my co-workers told me that there was a lawyer from the
EEOC that I could talk to and that it would be confidential, and that
nothing would happen to me if I talked to her, because I was still afraid of
being deported if my MANAGER found out I had talked to them.
16.

Since then, I have talked with the EEOC lawyer several times. She took my
statement for the case. I have talked with them two or three times and
want to help them out more if they need.

17.

I still feel terrified of MANAGER. Every time I ride the bus near my old
work, I start shaking and feel really scared. I still have nightmares that
MANAGER is coming around the corner. It has taken me a long time to be
able to talk to people about what is happening. I cry a lot and sometimes
feel like I cant do anything to make my life better.

18.

I hope that I can stay in the United States to take care of my family and to
continue to pursue this case with the EEOC. I have been living with my
new boyfriend and baby girl. I have been attending CHURCH, and I like
being part of this community. I hope that I can keep going to this church
because I want to give thanks to God for my beautiful family, and that no
one has to be treated like this again.

This statement has been read to me in my native language of Spanish. I declare

under penalty of perjury that the following is true and correct to the best of my
knowledge.
___________________________________________
NAME

APPENDIX C6

_____________________
DATE

DECLARATION OF CLIENT
IN SUPPORT OF U-NONIMMIGRANT STATUS
I, CLIENT, declared the following:
1. My name is CLIENT. I was born on DATE in CITY, Mexico. Please contact me through my
attorney, ATTORNEY, at the ORGANIZATION. She can be reached at ADDRESS.
2. I am submitting this declaration in support of my application for a U nonimmigrant visa. I
have been the victim of witness tampering and obstruction of justice at the hands of my
former Employer, EMPLOYER. EMPLOYER is the owner of COMPANY, a janitorial
service that cleans commercial locations. After EMPLOYER refused to pay me many
months of wages he owed me, I filed reports of wage theft with the United States Department
of Labor. After I sought these legal remedies EMPLOYER subjected me to threats, stalking,
and harassment in an attempt to intimidate me and get me to abandon these legal processes.
Because of this I have suffered severe anxiety, depression, and fear that has affected my
entire life, as well as lost my job and many months of wages. I have been forced to seek an
Anti-harassment Order for Protection against EMPLOYER and have made several reports to
the police about his stalking and harassment.
3. Growing up in Mexico, my parents and I had border crossing cards that allowed us to enter
the United States. We made about six visits a year, mostly to Nogales and Tucson. My
mother would go shopping and I spent summer vacations with friends in Yuma, Arizona. I
last entered the United States on DATE on a B1/B2 Tourist Visa. I have remained in the U.S.
since that date.
4. In Mexico I worked as a technical coordinator of communications for a bank in Mexico, and
for a company that helped United States tourists coming to Sonora. I have four children who
still live in Mexico and who are now ages 25, 22, 18, and 16. I divorced from their mother in
Mexico. I currently live in CITY, STATE, with my girlfriend and two of her young children
who I help support as a parent.
5. I started working as a janitor for EMPLOYER and his COMPANY in DATE. At first I
cleaned at BUSINESS in CITY. Later I also cleaned the offices of a nonprofit group in
Seattle, and another company. From April until December of YEAR I worked seven days a
week. After that I worked five or six days a week. I usually worked about 55 hours every
week, depending on how many places I was cleaning.
6. After working for about a month, I still had not been paid by EMPLOYER. When I asked
the manager who supervised us, MANAGER, she told me that my first months wages were
going to be withheld as a deposit. At the beginning of July I still had not been paid. Finally, I
received my first paycheck in mid-July for April and May. After that my checks were
always delayed.

1
APPENDIX C7

7. There was no system to track how many hours I was working, so it was really difficult to tell
how much I was actually making per hour. Any time I would start cleaning at a new job site
my wages for the first month of work there would be delayed a month.
8. In December of 2009, EMPLOYERs payment for my worked started to be even further
behind than normal. He owed me for October, November, and December. I asked
EMPLOYER about the payment he owed me for the work I had done. He told me that he was
having economic troubles and the Department of Labor was investigating janitorial
companies, so he could not pay me. He also told me that if I continued insisting on being
paid that he himself would call immigration authorities to report me.
9. After these threats I began to have anxiety and panic attacks because I was so afraid that
EMPLOYER would report me and I would lose my job. I was anxious because I needed to
work to be able to support my children in Mexico. I would send my children $500 to $600
every month, which they depended on. When their school fees were due I sent more money.
Two of my children got really sick, and because I had not been paid I was not able to send
money for the medical care they needed. I wanted to provide for my family, but I was
working and not getting paid. I called Mexico one night only to find out the phone had been
disconnected for lack of payment. I started having problems focusing and constantly worried
about making ends meet for my family. My stress prevented me from sleeping.
10. I was intimidated and scared, but I needed to continue working with the hope I would get
paid. I felt like I had no other option to provide for my family. I was finally paid in January,
but again the payments were behind. MANAGER also told me I needed to submit my own
invoices from then on because I was an independent contractor, being paid as if I had a
business of my own. I had thought I was an employee of EMPLOYERs, but she said I was
wrong. I learned later that they tried to tell us we were independent contractors so that they
would not have to pay us as much. All of my jobs always took several hours longer than
EMPLOYER told me they would take. When I asked EMPLOYER about the overtime I was
working he told me that I was an independent contractor, not a full-time employee, so it was
my responsibility to finish in the time I was assigned. He sharply reminded me that I was
unauthorized to work and told me that if I didnt want to wait to get paid I could just leave it,
because 100 people were waiting in line ready to take my job.
11. EMPLOYER used foul language towards me at work when he ordered me to do things. I was
struggling to maintain any concentration at work and began having regular anxiety attacks
because I was so afraid that I would lose my job and or that EMPLOYER would report me to
immigration authorities.
12. EMPLOYERs payments of my wages got behind again in spring of YEAR. By July,
EMPLOYER owned me for May, June and 15 days of July. I asked him several times about
it, and he would just give me excuses, telling me that he couldnt print the checks that day or
that he had not been paid by his accounts. Finally, EMPLOYER responded by yelling at me
I can call immigration on you you know that, you son of a b****! I felt trapped and
intimidated, afraid that EMPLOYER would do something to hurt me or turn me over to
immigration if I tried to seek any legal help in my situation. I was scared, depressed and

2
APPENDIX C7

hopeless because I could not pay for my basic needs like rent, gas, or send support to my
children because of the situation he trapped me in.
13. I finally decided I could not stand EMPLOYERs abuse any longer. On DATE, I told
EMPLOYER I could not work for him any longer if I did not get paid the following day. I
tried to talk to EMPLOYER about my childrens hardship, but he refused to listen. That
night I suffered panic and anxiety attacks and could not sleep. I was desperate I did not
know what to do and I worried all night. The next day when I asked about my wages I was
told there was no check and to go home and not come back.
14. That evening MANAGER, the SMI Manager, came to my home and told me to return the
facility keys from my worksite, because I was no longer employed by EMPLOYER. I was
hesitant to turn over the key because it had been issued personally to me by worksite.
MANAGER started cursing at me, yelling and threatening to call the police. At the time, I
was renting a room in a house and I did not want to cause any problems for me or the family
renting me the place. I was forced to give her the keys out of fear she would call the police.
15. The next day I had to return to the worksite, to gather some personal things from my locker.
EMPLOYER was there and followed me to the basement of the building. I tried to talk to
him about the situation, but he began to threaten me. He told me if you try to recover this
money you are going to know who I am. I have had this contract for five years and I have
fired eight people like you and nothing has happened to me, so dont act like a dumb a** and
go to the directors because they are not going to help you. And if you talk to them then I will
call ICE.
16. I was so afraid that I left the building. As I was leaving, a NON-PROFIT ORGANIZATION
staff member stopped me to check in. NON-PROFIT ORGANIZATION is a nonprofit that
helps low-income people. I had built relationships with several staff members and they were
really supportive. NON-PROFIT STAFF asked me to return later to explain what happened.
The next day, I told the staff that EMPLOYER had not paid me and had intimidated me with
threats. They gave me information about WORKER CENTER, where I could get help.
After verifying that EMPLOYER had abused me and other workers, they cancelled their
contract with EMPLOYER.
17. After Compass cancelled the contract, both EMPLOYER and MANAGER called me to
threaten me. EMPLOYER told me over the phone te voy a chingar- Im going to screw
you. He said it was my fault they cancelled the account, and that I could forget about the
money and that I was going to find out who he was. MANAGER called and also
threatened me. She told me I didnt know who EMPLOYER was yet and that he was going
to screw me. She also said that her husband worked for the FBI and was going to f*** you
up.
18. I had no more work and had not been paid thousands of dollars EMPLOYER owed me. I
started to seek help from advocates at WORKER CENTER, where they help workers who
have been cheated by their Employers. In November of YEAR, I decided I had to take some
strong action and report my situation to law enforcement. With help from WORKER

3
APPENDIX C7

CENTER advocates, I filed a report of the wages that had not been paid to me with the U.S.
Department of Labor. During the process, we found out that there had been other similar
complaints made against EMPLOYER by former employees. I cooperated with all of DOLs
requests for information and provided them with information about my case. In January
2011, DOL determined that EMPLOYER owed me $7,693.75. They sent EMPLOYER a
letter informing him of this and telling him that he needed to pay me or respond.
19. Because EMPLOYER was not yet responding to communication from DOL and because I
knew that other workers had also suffered wage theft by EMPLOYER, I decided to also work
with advocates at WORKER CENTER on direct efforts to get EMPLOYER to pay my
wages. We began to approach Clients of EMPLOYERs business, to enlist their help in
securing the wages. We talked to them, wrote them letters, and even did some peaceful
pickets to ask these Clients to put pressure on EMPLOYER to pay the wages he owned to his
employees. I was scared of what EMPLOYER might do, but at this point I felt I had no other
options.
20. Through this process I become involved with the Workers Defense Committee at WORKER
CENTER. As I heard peoples stories, I realized that a lot of people were suffering like me
from wage theft. I began to help people in their cases and support their efforts to get paid the
wages they were owed. I became very interested in this issue because peoples situations
were so difficult and many had children and spouses to support.
21. When I asked the staff at WORKER CENTER about doing more to help the other workers,
they told me about their work to change some of the wage theft laws in CITY. I volunteered
to help. I ended up telling my story publicly to explain to people why wage theft was a big
problem. I shared my testimony twice with the CITY Council in the efforts to pass a wage
theft city ordinance, on DATE and DATE. I began visiting schools, churches, and radio
shows to tell my story. I received some media coverage of these testimonies.
22. After my public testimony, EMPLOYER and others began to intimidate me in an effort to get
me to stop seeking legal remedies and publicizing EMPLOYERs abuse of his workers. I
was first informed that EMPLOYER might be trying to harm me when ACQUAINTANCE,
said he was trying to help me with my case, told me that EMPLOYER was looking for
people to beat me up. Later, I began to be suspicious that EMPLOYER had hired
ACQUAINTANCE to follow me and that he was just pretending to be helpful. EMPLOYER
managed to know my whereabouts every time ACQUAINTANCE offered to help me. I
lived about 30 minutes outside of Seattle and would have to go to the city to work on my
case. Somehow, every time I went to Seattle EMPLOYER would call and threaten me.
Later, ACQUAINTANCE called me and told me that EMPLOYER was serious and not a
person to mess with, and that I should back off or else.
23. MANAGER also began to call me. At first she pretended that she was on my side and tried
to gain my trust. I thought I could trust her and told her about my case against EMPLOYER
and my efforts to recover my unpaid wages. Eventually I realized that she was just trying to
get information for EMPLOYER. When I confronted her about this, MANAGER began to
threaten me. She threatened to accuse me of crimes to the police or call immigration on me.

4
APPENDIX C7

24. Around March of YEAR I also began to notice that I was being followed. A white van with
two people inside began following and watching me. I saw this same van outside WORKER
CENTER in Seattle. I also saw it outside my house and outside my workplace. The same
two young people were always inside. The van followed me from the parking lot, and I saw
them outside my second workplace that night. The van did not have a license plate in front.
25. On another occasion when I was driving on the freeway with my new Employer, a car was
following us. It swerved in front of us and cut us off, then threw something at our car. We
pulled off the freeway to inspect the car and someone in the other car yelled at us as we
exited. We found that the car door was damaged. I was afraid this was EMPLOYER or
someone he sent to follow me to try to harm me.
26. I became really afraid for my safety because of EMPLOYER and MANAGERs threats.
Because of the people EMPLOYER sent to stalk and harass me, I knew he was capable of
following through with causing me serious bodily harm. My life became unbearable because
I was scared of everything and everyone around me. I did not think I could trust anyone after
ACQUAINTANCE and MANAGER turned out to be working for EMPLOYER. All of this
was incredibly intimidating and I believe EMPLOYER took these actions to try to get me to
stop the fight to recover my wages and to drop my claims with DOL.
27. I was also extremely depressed because of the economic harm EMPLOYER had caused me.
I could not provide for my children because of the wages I had not been paid and because
EMPLOYER had fired me for trying to be paid my wages. I became physically ill due to the
fear and hardship of my situation I suffered from toothaches, migraines, and loss of
appetite and sleep because I worried about my safety.
28. The staff at WORKER CENTER encouraged me to seek a protection order because they
shared concerns for my safety. I petitioned for an Anti-harassment Order for Protection in
Superior Court. After a hearing where the Judge questioned EMPLOYER and me, the antiharassment protection order was granted on DATE. The order required EMPLOYER to stay
away from me, WORKER CENTER, and my home.
29. In June, I decided to pursue a private action to try to recover my wages in Superior Court,
with hopes that this new tactic might hold EMPLOYER accountable for the wages he owed
me. To do this you have to withdraw your specific claims with DOL, so that you can file a
complaint with another attorney directly in the court. I filed the complaint on DATE and the
case is still pending. I am still available to cooperate with DOL and can serve as a witness in
their ongoing investigation of EMPLOYER. I want EMPLOYER to be held accountable and
to keep him from being able to harm even more workers, and I will assist DOL if they need
any further testimony from me.
30. On DATE, I and members from WORKER CENTER, and WORKER CENTER advocates,
were doing a peaceful protest outside SITE around 7pm. This was part of our efforts to
pressure EMPLOYER into paying the wages he owed to me and other workers.
EMPLOYER arrived while we were there. He walked up in front of us and took my picture

5
APPENDIX C7

with his telephone. Before he left he got close enough to talk to me and said Im going to
f**k you up and made a threatening gesture with his hand.
31. WORKER CENTER STAFF called the police because EMPLOYER was violating the Order
for Protection. When the police arrived I talked to them and explained that I had a protection
order and was afraid because EMPLOYER was there in violation of the order. The police
officers then found EMPLOYER and talked to him. They made him leave the property.
When the judge issued the order he explained very clearly to EMPLOYER that he was not to
come within 100 feet of my person. EMPLOYER intimidated me by getting close to me to
take a photograph, making intimidating signs at me with his hands, and threatening me with
his words.
32. After this incident, I wouldnt leave my home except for work or when accompanied by a
friend or WORKER CENTER member. I was terrified that EMPLOYER would show up
again and do something to harm me. I could not stop worrying about EMPLOYER planning
more ways of retaliating against me for the complaints I had made to DOL. Because of this
incident and the many threatening phone calls I had received from MANAGER, I decided I
needed to make a full report of all the threatening behavior to make sure there was a record.
On DATE, I went to the Sheriffs office to make a report. I showed them a copy of the
protection order and explained what had happened at SITE. They asked me to write a
declaration about the events there and the phone threats, which I did.
33. The staff at WORKER CENTER also encouraged me to move somewhere where
EMPLOYER would not be able to find where I lived. I could not afford to move out of my
current residence on my own, but WORKER CENTER offered me a one-time loan to help
me find a new place for safety purposes. I moved in DATE, and then again in DATE because
I did not feel safe anywhere.
34. Because of all these threats by EMPLOYER and others that he sent to intimidate me, I
continue to suffer from severe anxiety and fear that he will find me and do harm to me. This
has caused me many sleepless nights and even migraines and toothaches. I have become
constantly afraid for my security and afraid even to walk down the street because of the
stalking and harassment. I have had to move multiple times for fear of my safety. I lost my
work and many months of wages owed me which added significant economic stress to my
situation. NON-PROFIT ORGANIZATION and WORKER CENTER have helped me
economically, but I have not been able to support my children in Mexico like I used to.
35. I recently was finally able to find work as a janitor and at a door and window factory. I am
starting to rebuild my life after all the harassment EMPLOYER put me through to deter me
from seeking legal remedies. I currently live in CITY with my girlfriend and two of her
children. I support her and the children as my own family. I also communicate with my own
children in Mexico very often, over the phone or on Facebook. I still suffer from anxiety
about my safety and fear that EMPLOYER will do something to me, and I worry about my
family in Mexico because I cannot provide all the support they need due to the economic
hardship EMPLOYER caused me.

6
APPENDIX C7

36. I want to remain in the United States to continue working on my case to recover my wages.
EMPLOYER still has not paid me the wages that the DOL found he owed me. My civil
complaint against EMPLOYER is still pending in the courts. The case DOL has been
investigating, on behalf of my complaint and other workers who were not paid by
EMPLOYER is also ongoing. That case will go to trial next year, and I believe it is very
important that I am available to assist if necessary.
37. I also want to remain in this country to receive protection from the harm EMPLOYER could
cause me. Because of rumors I have heard, I believe EMPLOYER is part of a larger web of
criminal activity. If I had to leave this country I am very afraid that he would send people to
harm me in retaliation for sharing my story.
38. Another reason it is personally important for me remain in this country is to continue to
receive the support that I need to recover from the stress, fear, and anxiety caused by
EMPLOYERs harassment and stalking. I have received so much support from the
advocates at WORKER CENTER and from some of the people at the NON-PROFIT
ORGANIZATION. This has been essential to my safety and my well being these last years.
I also want to be able to help other workers in their difficult situations. I am a part of the
Workers Defense Committee at WORKER CENTER and help others in their efforts to
reclaim unpaid wages. I do not want to be forced to leave this support network, and I also
want to be able to continue to help support others. I have started to rebuild a safe and healthy
life after all that I have suffered, and I want a chance to stay in the United States to continue
healing from so much fear and anxiety and gaining stability again.

I, CLIENT, affirm, under penalty of perjury, that all of the foregoing statements are true and
correct to the best of my knowledge.
___________________________________
Signature

_____________________________
Date

CERTIFICATE OF TRANSLATION
I, Translator, hereby certify, under penalty of perjury, that I am competent to translate from
Spanish to English; that I have translated this Spanish language verbal declaration of CLIENT
into English; and that the English translation is complete and accurate.
___________________________________
Signature

____________________________
Date

7
APPENDIX C7

APPENDIX C8

APPENDIX C8

APPENDIX C8

APPENDIX C8

APPENDIX C9

APPENDIX C10

APPENDIX C10

APPENDIX C11

APPENDIX C11

March 28, 2013

Laura Dawkins
Chief, Regulatory Coordination Division, Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security

CC: Maureen Dunn

Division Chief, Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security

Colleen Renk Zengotitabengoa

Associate Counsel, Office of Chief Counsel
U.S. Citizenship and Immigration Services
Department of Homeland Security

Scott Whelan
Adjudications Officer
Office of Policy and Strategy, USCIS

Rena Cutlip-Mason
Ombudsman, USCIS
Department of Homeland Security

Tracey Parsons
Karl Labor
Assistant Center Director, Vermont Service Center Section Chief, USCIS

CC: Tamara J. Kessler

Acting Officer
Office of Civil Rights and Civil Liberties
Department of Homeland Security

Laura M. Olson
Section Lead, Immigration Section
Office of Civil Rights and Civil Liberties
Department of Homeland Security

RE: Substantial Abuse Determinations for U-Visa Victims of Workplace Crimes

Dear Ms. Dawkins:
We write to you to raise concern with the Department of Homeland Securitys Bureau of
U.S. Citizenship and Immigration Services (USCIS) treatment of petitions for U Nonimmigrant
Status (U visa) in cases involving workplace-based crime. Specifically, we raise concern with its
substantial abuse determinations in cases where crimes have taken place in the workplace, and
adjudication of cases involving the qualifying criminal activities of witness tampering and
obstruction of justice.
As federal regulations have established, law enforcement agencies that conduct their
enforcement largely in the workplace, including the Equal Employment Opportunity
Commission (EEOC), the Department of Labor (DOL), and equivalent state and local agencies
may certify U visa petitions. 8 C.F.R. 214.14(a)(2). In recent years, these agencies have
released U visa certification protocol, and have appointed personnel to coordinate U visa

APPENDIX D1

certification.1 As a result, USCIS has adjudicated, and will likely adjudicate an increasing
number of U visa applications based on qualifying criminal activity in the workplace.
Although USCIS has handled many of these workplace-based U visa petitions without
issue, USCIS has issued Requests for Evidence (RFE) or denied several U visa applications of
victims of workplace-based crime, concluding that applicants have not shown that they have
suffered substantial physical or mental abuse as a result of qualifying criminal activity. We
believe some of these denials reflect lack of education about the context and experience of
workplace crime victims, not failure to meet the requirements of the statute. Although USCIS
staff are familiar with determining the degree of physical and mental abuse in cases involving
domestic violence and sexual assault-related crimes, additional training on the specific dynamics
of vulnerability and abuse experienced by victims of workplace-based crime would improve
access to U visas. This issue is particularly significant for victims of obstruction of justice and
witness tampering by their employers.
We ask that you provide further internal guidance and training to USCIS staff to ensure
that victims of workplace-based crime are adequately protected and to strengthen the ability of
labor and civil rights law enforcement agencies to detect, investigate, and prosecute criminal
activities. We provide some suggestions below on issues and content for such training and
request an opportunity to meet with you in the near future to further discuss these concerns. We
appreciate your commitment to making these aspects of the law work and look forward to
deepening our collaboration with you and to hearing your responses to our concerns.
A. Substantial Physical or Mental Abuse for Victims of Workplace Crime
When determining whether an applicant has suffered substantial physical or mental
abuse, USCIS considers the nature of the injury inflicted or suffered; the severity of the
perpetrators conduct; the severity of the harm suffered; the duration of the infliction of the
harm; and the extent to which there is permanent or serious harm to the appearance, health, or
physical or mental soundness of the victim, including aggravation of pre-existing conditions. 8
C.F.R. 214.14(b)(1). USCIS has concluded that it is reasonable to consider both the severity
of the injury suffered by the victim and the severity of abuse inflicted by the perpetrator. 72
Fed. Reg. 53014, 53018 (Sept. 17, 2007). No single factor is a prerequisite to establish that the
abuse was substantial . . . . A series of acts taken together may be considered to constitute
substantial physical or mental abuse even where no single act alone rises to that level. 8 C.F.R.
214.14(b)(1).

Memorandum from Richard A. Seigel, National Labor Relations Board, to All Regional Directors, Updated
Procedures in Addressing Immigration Status Issues that Arise During NLRB Proceedings (June 7, 2011);
Memorandum from Nancy Leppink, Acting Administrator, Wage and Hour Division, U.S. Department of Labor, to
Regional Administrators and District Directors, Certification of Supplement B Forms of U Nonimmigrant Visa
Applications (Apr. 28, 2011); Memorandum from New York State Department of Labor, Memorandum and Order
Regarding Certification of U Visa Petitions (2011); Memorandum from Phyllis W. Cheng, Director, California
Department of Fair Employment and Housing, Enforcement Division Directive: Obtaining U Visas in Investigated
Cases (May 6, 2010); Memorandum from Naomi Earp, Chair, Equal Employment Opportunity Commission, to
District Directors and Regional Attorneys, EEOC Procedures for U Nonimmigrant Classification Certification (July
3, 2008).

APPENDIX D1

Undocumented workers and guestworkers are particularly vulnerable to victimization in

the workplace. Economic dependency, power differentials between the employer and employee,
and employee isolation because of limited access to culturally and linguistically-appropriate
support systems heighten workers vulnerability. An abusive employer or supervisor may feel
safe in the knowledge that an undocumented worker or guestworker may not bring charges or
report abuse due to fear of retaliation, or would not call the police or other law enforcement
agencies to report crime out of fear of deportation.2 Employers may also prey upon unique
vulnerabilities such as a workers gender, or ethnic or cultural background.
Many immigrant victims of workplace crime may thus be unable to leave their jobs to
escape abuse and crime at the hands of their employers, with significant psychological
consequences. Many immigrant victims of workplace crime may choose to engage in passive
coping strategies out of fear that engaging in active strategies may lead to loss of a job, exposure
to law enforcement, harm to their family members in the country of origin, or detention and
deportation. The inability to leave a job may result in prolonged and frequent exposure to abuse,
associated with more severe psychological harm.3 Moreover, victims of abuse in the workplace
who are economically dependent on abusive employers due to lack of job mobility suffer often
greater psychological harm than those who may be able to leave a job.4
1. Forms of Abuse in the Workplace
In general, abuse in the workplace may take several forms, including physical, sexual,
psychological, immigration, and economic abuse. In the case of minors, USCIS adjudicators
should also consider negligence as a form of psychological abuse. The injury suffered by victims
of such abuse may manifest as physical or mental injury. Such forms of employer abuse may
manifest itself in the following ways. We also attach a table with concrete examples of such
abuse in the workplace as Exhibit A.

Physical abuse: Physical abuse includes the intentional use of physical force with the
potential for causing death, disability, injury, or harm. It may include, but is not limited to
physical assault and attempted assault.5 In the workplace, physical abuse is unique due to
the power differential between the perpetrator (employer) and victim (worker), and the
perpetrators use of physical abuse to further establish power over the victim. Physical
abuse may range from behaviors such as shoving or hitting a worker to full-scale attacks.
In most cases, a perpetrator may feel safe in the knowledge that an undocumented worker
or guestworker will not bring charges or report the abuse to superiors for fear of
retaliation or other repercussions. Physical abuse may also include the employers
maintenance of a dangerous workplace environment that leads to injury or potential

See, e.g. Rebecca Smith and Eunice Cho, WORKERS RIGHTS ON ICE: HOW IMMIGRATION REFORM CAN STOP
RETALIATION AND ADVANCE LABOR RIGHTS (2013), available at http://www.nelp.org/page/-/Justice/2013/WorkersRights-on-ICE-Retaliation-Report.pdf?nocdn=1.
3
Pamela Lutgen-Sandvik, et al., Burned by Bullying in the American Workplace: Prevalence, Perception, Degree,
and Impact, 44 J. OF MANAGEMENT STUD. 835-860 (2007).
4
Bennett Tepper, Abusive Supervision in Work Organizations: Review, Synthesis, and Research Agenda, 33 J. OF
MGMT 261 (2007).
5
J.E. Saltzman, et al., INTIMATE PARTNER VIOLENCE SURVEILLANCE: UNIFORM DEFINITIONS AND RECOMMENDED
DATA ELEMENTS, Centers for Disease Control and Prevention (2002).

APPENDIX D1

harm, or preventing workers from attending to basic bodily needs, such as using the
bathroom or taking care of medical needs. It may also include assigning dangerous jobs
or arduous jobs as punishment, as well as forcing an employee to stay after his or her
shift for longer hours than agreed or required, leading to physical exhaustion and other
injuries.

Sexual abuse: The continuum of activities that constitute sexual abuse include acts
ranging from unwelcome propositions or comments, disguised fondling, and unwelcome
touching, to rape in the workplace by a supervisor, co-workers, or customers. In some
situations, an employer may send a message that working conditions will not improve or
that wages will be withheld unless an employee submits to a sexual encounter or
unwelcome touching. Other examples of activities include spreading rumors or making
offensive comments about a workers sexual life or sexual orientation, or making insults
of a sexual nature. Sexual abuse also includes an employers failure to discipline or
enforce rules against sexual harassment or assault by supervisors, co-workers or clients,
as well as the creation of an unsafe environment where employees are hyper-vigilant and
on the defense against sexual assault at any time.

Psychological abuse: Psychological abuse in the workplace can include verbal abuse,
emotional abuse, intimidation, and manipulation that diminish a workers self-worth and
independence. Verbal abuse includes yelling, screaming, name-calling, insulting, using
racial or other derogatory epithets, and belittling by an employer. Emotional abuse may
include unwarranted blaming, shaming, isolation, threats, demands of obedience to
whims, anger when tasks are not completed perfectly, and indifference to a workers
pressing needs. Intimidation may include intense surveillance, making fun of a worker,
making a worker perform humiliating or demeaning tasks, monitoring a workers
personal time, or making threats. Manipulation may include statements or actions
designed to turn other people against a worker, using others to pressure a worker into an
action, shifting from a nurturing to a punishing stance without provocation, threatening a
worker with punishment, and forcing participation in a criminal activity. Employers can
psychologically terrorize immigrant employees by utilizing strategies of abuse by using
issues that are culturally meaningful to the employee.

Immigration abuse: Immigration abuse occurs when an abuser of an undocumented

immigrant victim threatens deportation and/or actively uses their power over a victims
immigration status to exploit the victims fear of deportation. The aim of this abusive
strategy is to prevent a worker from seeking help or contacting law enforcement.6 In the
workplace, immigration abuse takes place when a workers immigration status is used to
exploit, keep a worker trapped in harmful working conditions, or prevent a worker from
cooperating with law enforcement officials. It also includes instances where the employer

N.H. Ammar, et al., Calls to Police and Police Response: A Case Study from Latina Immigrant Women in the U.S.,
7 J. OF INTL POLICE SCI. AND MGMT, 230 (2005); M. Natarajan, Domestic Violence among Immigrants from India:
What We Need to Knowand What We Should Do, 26 INTL J. OF COMP. AND APPL. CRIM. JUSTICE 301 (2003); L.
Orloff, et al., Battered Immigrant Womens Willingness to Call for Help and Police Response, 13 UCLA WOMENS
LAW J. 43 (2003); A. Raj, et al., Immigration Policies Increase South Asian Immigrant Womens Vulnerability to
Intimate Partner Violence, 60 J. OF THE AM. MED. WOMENS ASSN 26 (2005).

APPENDIX D1

or supervisor tells workers that they have paid ICE to refrain from enforcing immigration
laws in their workplace.

Economic abuse. Economic need is one of the most important barriers that impede
immigrant workers from leaving an abusive workplace. Lack of money to support the
worker and the workers family, often in the home country, is a significant factor for
undocumented workers or guestworkers who have come to the United States in search of
better conditions. Workers may fear not being able to find other employment due to their
lack of authorization, particularly those who live paycheck to paycheck. Employers may
also fail to pay the correct amount of money for hours worked, withhold leave, provide
economic punishment for minor infractions, or charge workers for items that should be
provided by the employer, such as uniforms and safety equipment. Employers may also
threaten workers that they will not renew contracts, mislead workers about their rights as
employees, and withhold information about relevant procedures and protections.
2. Effects of Abuse on Victims of Crime in the Workplace

A large body of research has established that workplace abuse produces a wide range of
physical and psychological problems in victims.7 Abuse and exploitation at work not only
affects direct victims, but also impacts co-workers who witness the abuse of their peers and thus
fear for themselves. These effects may include psychological harm, physical harm, and social
harm.

Psychological harm. Victims of workplace abuse often report experiencing higher levels
of general stress and anxiety. Victims may exhibit symptoms including insomnia,
constant worry, daily sadness, irritability, extreme fatigue, lack of interest in things that
interested them in the past, lack of motivation, poor appetite, crying spells, nightmares,
feelings of hopelessness and worthlessness, and somatic symptoms such as migraines and
digestive problems.8
Abuse in the workplace may also be associated with acute clinical mental health
symptoms and diagnosable disorders. Mental health problems such as depression,
anxiety, mood disorders, dissociation, substance abuse, suicide attempts, acting out, and
post traumatic symptoms are often found in victims of abuse and maltreatment.9 Workers
may develop symptoms compatible with the diagnosis of post-traumatic stress disorder,
somatization, and depression. 10 Working in stressful conditions may produce chronic

See D. Ajdukovic, Social Contexts of Trauma and Healing, 20 MEDICINE, CONFLICT, AND SURVIVAL 120 (2004).
See, e.g. Lutgen-Sandvick, et al., supra note 3; N.A. Bowling, et al., Why Do You Treat Me Badly? The Role of
Attributions Regarding the Cause of Abuse in Relation to Subordinates Responses to Abusive Supervision, 25 Work
and Stress 343 (2011); C. Brotheridge & R. Lee, Restless and Confused: Emotional Responses to Workplace
Bullying, 15 Career Dev. Intl 687 (2010); N.A. Bowling & T.A. Beehr, Workplace Harassment from the Victims
Perspective: A Theoretical Model and Meta-Analysis, 91 J. of Applied Psychology 998 (2006).
9
J.G. Allen, et al., Complexities in Complex Post-Traumatic Stress Disorder in Inpatient Women: Evidence from
Cluster Analysis of MCMI-III Personality Disorder Scales, 73 J. PERSONALITY ASSESSMENT 73 (1999).
10
See, e.g. J. Escartin, et al., Development and Validation of the Workplace Bullying Scale EAPA-T, 10 INTL J.
CLINICAL AND HEALTH PSYCHOLOGY 519 (2010); Heinz Leymann & Annelie Gustafsson, Mobbing at Work and the
Development of Post-traumatic Stress Disorders, 5 EUROPEAN J. OF WORK AND ORG. PSYCHOLOGY 251 (1996).
8

APPENDIX D1

traumawhich consists of single stressful events that accumulate over time and combine
with a toxic environmentmultiplies the maladaptive effects of a traumatic event. Where
specific traumatic experiences are added to the cumulative effect of repeated
psychological abuse and deprivation, significant personality changes may occur. When a
persons identity is organized around internal distress, fear, and a sense of fragility,
personal and emotional growth are likely to be stunted.

Physical harm. Workplace abuse is associated with negative physical health

consequences. In addition to the direct physical injuries caused by the abuse itself or
dangerous working conditions, victims of workplace abuse report a wide range of
secondary somatic symptoms, including, but not limited to headaches and sleep
disturbances, heart-related health issues, sexually-transmitted diseases and unhealthy
weight loss or gain. Victims of abuse may also engage in unhealthy behaviors as a coping
mechanism to deal with high levels of psychological stress.11

Social harm. The experience of abuse in the workplace can adversely impact victims
interpersonal relationships. Victims of workplace abuse may deplete their cognitive and
physical resources coping with the stress of the abuse, leaving little resources available
for use when interacting outside the workplace environment. This may lead to a
decreased quality of social relationships and conflict in their intimate relationships. A
survey of employees has reported that workplace abuse is associated with high levels of
family conflict.12

Because USCIS is likely to encounter greater numbers of U visa applications from victims of
crime in the workplace, we recommend that the agency provide additional training to U visa
adjudicators on the specific forms and effects of abuse in the workplace. As advocates and
clinicians with experience in this field, we would be happy to support additional training in any
way.
B. Substantial Abuse Determinations for the Qualifying Criminal Activities of
Obstruction of Justice, Witness Tampering, and Perjury
In many cases, victims of workplace crime may receive certification by law enforcement
agencies for the qualifying criminal activity of obstruction of justice, witness tampering, and
perjury. Under U visa standards, a person is considered a victim of witness tampering,
obstruction of justice, or perjury, including any attempt, solicitation, or conspiracy to commit
one or more of those offenses, if: (A) The petitioner has been directly and proximately harmed
by the perpetrator of the witness tampering, obstruction of justice, or perjury; and (B) there are
reasonable grounds to conclude that the perpetrator committed the witness tampering,
obstruction of justice, or perjury offense, at least in principal part, as a means (1) to avoid or

11

M.K. Duffy, et al., Social Undermining in the Workplace, 45 ACAD. OF MGMT. J. 31 (2002); Annie Hogh et al.,
Individual Consequences of Workplace Bullying/Mobbing, in BULLYING AND HARASSMENT IN THE WORKPLACE:
DEVELOPMENTS IN THEORY, RESEARCH, AND PRACTICE (2011); R. Glaser, et al., Stressed-Induced Immune
Dysfunction: Implications for Health, 5 NATURE REVIEWS IMMUNOLOGY 243 (2005); J.K. Kiecolt-Glaser, et al.,
Depression and Immune Function: Central Pathways to Morbidity and Morality, 53 J. PSYCHOSOMATIC RESEARCH
873 (2002).
12
Tepper, supra note 4.

APPENDIX D1

frustrate efforts to investigate, arrest, prosecute, or otherwise bring to justice the perpetrator for
other criminal activity; or (2) to further the perpetrator's abuse or exploitation of or undue control
over the petitioner through manipulation of the legal system. 8 C.F.R. 214.14(14)(ii).
Employers who seek to obstruct justice or prevent witnesses from participating in official
proceedings or investigations often use abusive methods and/or build upon prior patterns of
abuse in order to achieve their ends. Victims of such crimes have typically suffered abuse at the
hands of their employers, whose obstructive activity, witness tampering, and perjury to avoid
detection and prosecution are symptomatic of a larger pattern of harm and exploitation. Indeed,
employers actions to obstruct justice, tamper with witnesses, and commit perjury may often
manifest as substantial abuse for employees who have endured multiple violations in the
workplace.
Based on experience with these cases, we believe that USCIS adjudicators would benefit
from additional training on this issue. USCIS has issued Requests for Evidence (RFE) or denied
several U visa applications of victims of obstruction of justice and witness tampering in the
workplace, concluding that applicants have not shown that they have suffered substantial
physical or mental abuse. We believe that many of these determinations are based on a
misunderstanding of the unique nature of abuse in the workplace. We attach one such example to
this letter as Exhibit B.
Typical cases involving obstruction of justice, witness tampering, and perjury in the
workplace may involve employers attempts to avoid detection and investigation for violations of
workplace standards, including wage and hour violations, false record-keeping, underage labor,
and health and safety violations. Often, employers may issue threats, retaliate against workers
who may ask for unpaid wages or assert their workplace rights, or engage in physical, economic,
and verbal abuse to further their control over workers. For example, employers who are under
threat of investigation may engage in the following activities:

Direct or indirect threats of firing, physical harm to the employee or family members, or
of potential reports of worker or workers friends/family to immigration enforcement or
local law enforcement if workers do not withdraw claims, cooperate/collaborate with
employer, or lie to investigators;
Confiscation of workers personal identification documents, passports, or work permits,
limiting mobility of the worker or ability to leave;
Retaliation, harassment, stalking, intimidation, isolation, demotion, transfer to inferior
position, insulting remarks, derogatory comments, and denial of privileges, wages,
payment, or further work;
Denial of access to food, water, housing, or basic needs if workers do not withdraw
claims, cooperate/collaborate with employer, or lie to investigators.13

13

Significantly, these activities mirror the dynamics of power and control inherent in a situation of domestic
violence involving an immigrant victim. See, e.g. Natl Center on Domestic and Sexual Violence, Immigrant Power
and Control Wheel, available at:
http://www.ncdsv.org/images/Immigrant%20P&C%20wheel%20NO%20SHADING%20-%20NCDSVICE_updated2009.pdf (last accessed Mar. 21, 2013).

APPENDIX D1

Victims of these crimes in workplace settings often suffer serious consequences as a result of
the employers criminal activity. In many cases, victims of witness tampering, obstruction of
justice, or perjury are particularly vulnerable to aggravation of underlying chronic stress or
trauma caused by long-term abuse. For example, workers who are chronically abused may learn
to submit and comply with abusive conditions in order to survive. An employers interference in
a workers attempt to break the cycle of abuse by cooperating with law enforcement officials
may thus provoke heightened fear and even more severe psychological harm as described above.
As awareness of the U visa on the part of victims and agencies that enforce laws protecting
immigrant workers increases, we predict that USCIS will encounter more U visa applications
from victims of obstruction of justice, witness tampering, and perjury in the workplace. We
suggest that now is the time for USCIS to provide additional trainings to U visa adjudicators on
the particular abuse suffered by victims of obstruction of justice, witness tampering, and perjury
by their employers. We would like the opportunity to discuss with you the experts and materials
that USCIS could use to train its staff.
USCISs commitment to protecting victims of crime provides key protections for the most
vulnerable in our society, as well as our communities as a whole. We appreciate your efforts, and
hope that this letter provides an opportunity for further discussion of the particular challenges
faced by victims of workplace-based crime. We look forward to continued collaboration and to
your response. Please contact Eunice Cho at echo@nelp.org or at 510-663-5707 with any
questions.

Sincerely,
/S/
Eunice Hyunhye Cho
Staff Attorney
National Employment Law Project
405 14th St. Suite 1400
Oakland, CA 94612
510-663-5707
echo@nelp.org

Dr. Giselle Hass

Clinical Psychologist
VA Lic. #081000-2022; DC Lic. # PSY 145231
Adjunct Professor
Center for Applied Legal Studies
Georgetown University Law Center
703-577-4094
giselle.hass@gmail.com

/S/
Gail Pendleton and Sonia Parras Konrad
Co-Directors
ASISTA
2925 Ingersoll Ave. Suite 3
Des Moines, IA 50312
gailpendleton@comcast.net
sonia@asistahelp.org
8

APPENDIX D1

EXHIBIT A: EXAMPLES OF ABUSE IN THE WORKPLACE

Table 1. Examples of Physical Abuse in the Workplace
Throw something
Push, grab, shove, wrestle, twist
arm or bend hand
Scratch, pinch, hair pulling

Burning, scalding
Using or threatening with a weapon

Slap, spank, slam

Smother, strangle, choke, hang

Kick, hit, beat, drag, pull

Shaking

Bite

Pulled hair

Hit with something

Force or threat to restrict from eating or

drinking
Deprive of food and shelter

Damage employee's property

Use of restraints, holding down

Restrict from taking medication

Physically restraining, locking the
person in an enclosed space
Use car to create a dangerous
situation (i.e. driving or forcing
person out of the car)
Put/expose to a dangerous
substances
Fail to seek out medical treatment
when the employee is ill and asked
for help
Force or threat to force taking drugs
or alcohol
Force or threat to restrict from
attending to hygiene
Endangerment

Table 2. Examples of sexual abuse in the workplace

Raping a person
vaginally or anally by
physical force, threat,
or blackmail
Forcing a person to
perform sexual favors
other than intercourse
by force, threat or
blackmail
Showing, displaying
degrading sexual
images or obscene
materials
Spreading rumors of
the person's sexual
preference or sexual
habits
Force nudity or forced
to undress
Threaten to out an
LGBTQ victim

Required to wear
provocative clothes or
cleavage

Unwanted advances

Double entendres

Touch or pinch directly or

through clothing any
sexual area

Unwanted caresses,
fondling

Intimate references

Talk or make allusions to

sexual activity or
preferences

Indiscrete glances

Blackmail/threats to force
victim to engage or accept
unwanted sexual abuse

Indecent proposals

Kissing

Obscene language or
gestures
Sexual innuendo

Discrimination to pregnant
workers
Sexual stimulation

Denying benefits to a
worker who did not
respond to sexual
advances
Stalking a worker inside
or outside the workplace
Getting too close
physically while working

APPENDIX D1

Table 3. Examples of psychological abuse in the workplace

Verbal abuse

Emotional abuse

Intimidation
Coercion

Manipulation
Control

Yelling, screaming

Blaming

Intense surveillance,
monitoring or
micromanaging

Crazy making

Name-calling

Shaming

Making fun of the worker

Turning other people

against the worker

Insulting

Isolation

Making threatening faces

or gestures

Blackmailing

Using racial or cultural

derogatory terms

Threats

Making the worker do

humiliating or demeaning
activities

Using other people to

pressure the worker into
something

Putting down the worker's

family, race, place of
origin, or culture

Doing something to spite

the worker

Monitoring the worker

personal time (their phone
calls, use of the bathroom,
lunch breaks)

Discriminating against a
worker

Belittling of the worker's

ideas, feelings,
perceptions, physical or
personality characteristics

Demanding obedience to
whims

Hitting or kicking walls,

doors, furniture, or
machines

Shifting from a nurturing

to a punishing stance
without provocation

Sulking and refusing to

talk to the worker or
stumping out of the room

Playing good cap-bad cap

with other superiors
against workers

Getting angry when duties

were not completed
perfectly

Threatening the worker

with punishment

Acting indifferently to the

worker's pressing needs

Force participation in
criminal activity
(including obstruction of
justice and witness
tampering)

Table 4. Examples of immigration abuse in the workplace

Make the worker purchase
illegal documents
Take the worker's passport

Force the worker to use false

documents
Threat deportation

Pretend that they are filing for immigration

relief for the worker or his or her family
Smuggle the worker into the US

10

APPENDIX D1

or social security card

Threat to report worker to
immigration authorities

Pretend that they have an

arrangement with immigration
authorities and only working
there they would be safe

Use information regarding the worker

entrance to the country or use of illegal
documents to blackmail the worker

Threats to report to local

authorities

Table 5. Examples of economic abuse in the workplace

Charging for things the worker has a
right to (use of bathroom, a change
of shift, a work uniform).
Taking away money with lies
(payment to immigration authorities,
inspectors, etc)
Not paying for hours worked or not
paying overtime

Decreasing worker's breaks

Punishing the worker with lack of

work or payment when they
displeased the supervisor
Stealing or destroying the worker's
personal possessions

Decreasing working hours

11

APPENDIX D1

Forcing the worker to make

purchases they would otherwise
would not do
Coerced or force the worker to
accept unfair working conditions
(i.e. longer hours, no vacation, etc)
Interfere with work performance
(i.e. forcing worker to share tools
with a new worker, etc)

May 6, 2014
Alejandro Mayorkas
Deputy Secretary
Department of Homeland Security

Lori Scialabba
Acting Director
U.S. Citizenship and Immigration Services

CC:
Ron Rosenberg
Chief of the Administrative Appeals Office
U.S. Citizenship and Immigration Services

Laura Dawkins
Chief, Regulatory Coordination Division
Office of Policy and Strategy, USCIS

Maureen Dunn
Division Chief, Office of Policy and Strategy
USCIS

Colleen Renk Zengotitabengoa

Associate Counsel, Office of Chief Counsel
USCIS

Scott Whelan
Adjudications Officer
Office of Policy and Strategy, USCIS

Rena Cutlip Mason

Ombudsman
USCIS

Tracey Parsons
Karl Labor
Assistant Center Director, Vermont Service Center Section Chief, USCIS
Tamara Kessler
Acting Officer
Office of Civil Rights and Civil Liberties
Department of Homeland Security
M. Patricia Smith
Solicitor
U.S. Department of Labor

P. David Lopez
General Counsel
Equal Employment Opportunity Commission

Richard F. Griffin, Jr.

General Counsel
National Labor Relations Board

Tyler Moran
Deputy Policy Director for Immigration
Domestic Policy Council, White House

VIA EMAIL
RE: U Visas Based on Crimes in the Workplace: USCIS Substantial Abuse Interpretations
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

APPENDIX D2

Dear Mr. Mayorkas and Ms. Scialabba:

On behalf of the undersigned organizations, we write to raise concerns with U.S.
Citizenship and Immigration Services (USCIS) treatment of U visa applications in cases
involving qualifying crimes in the workplace. Specifically, we raise concern with USCISs
understanding and application of the substantial physical or mental abuse standard in cases
involving U visa crimes in the workplace.1 The crimes suffered by U visa applicants in these
cases include several of the qualifying categories of crimes in the U visa statute, most notably
witness tampering, obstruction of justice, perjury, and extortion, usually taking place in the
workplace setting, often where employer offenders attempt to thwart investigations into their
unlawful practices.
The National Employment Law Project (NELP) and ASISTA have served as a national
clearinghouse for advocates filing U visas for victims of crime in the workplace.2 Based on
reports from advocates nationwide and our work with USCIS to address these cases, it appears
the Administrative Appeals Office (AAO) and Vermont Service Center (VSC) have wrongly
denied a substantial number of workplace-based U visa petitions. In doing so, AAO and VSC
have employed varying interpretations of substantial abuse contrary to USCIS practice in cases
based on other crimes. These varying interpretations appear to have created a higher set of
standards for evaluating abuse in cases arising in the workplace. Nothing in the statute justifies
such a higher standard. Attached is a more lengthy discussion of the issues arising in such cases,
with legal analysis of why these denials violate the law, reflect a need for training on workplacebased abuse, or both.
Recent Requests for Evidence (RFE), Notices of Intent to Deny (NOID), and denials
have resulted in lengthy delays for relief for victims of crime in vulnerable situations, and have
taxed the scarce resources of non-profit organizations working on behalf of low-wage immigrant
communities. This development is especially troubling at a time when other federal agencies
most likely to detect crime in the workplace have recently implemented comprehensive U visa
certification policies. These agencies include the U.S. Department of Labor (DOL), the Equal
Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB),
and equivalent state and local agencies.
To address this issue, we request that the AAO halt any denials in such cases until USCIS
implements corrective measures. Corrective measures should feature new training for VSC and
AAO officers on the nature and context of workplace-based crimes (as was done in the past for
domestic violence and sexual assault). We also request a meeting with you and relevant USCIS
officers who develop and implement policies concerning U visas on this matter, and suggest
USCISs active consultation with the EEOC, DOL, NLRB, and equivalent state and local
agencies with U visa certification programs.

8 C.F.R. 214.14(b)(1).
For your reference, we also attach a copy of a letter addressed to USCIS last year on March 28, 2013, regarding
Substantial Abuse Determinations for U Visa Victims of Workplace Crimes, which provides concrete examples of
substantial abuse and harm experienced by victims of workplace crime.

U Visas Based on Crimes in the Workplace:

USCIS Substantial Abuse Interpretations

APPENDIX D2

We are grateful for USCISs demonstrated dedication to successful implementation of the

U visa program, and offer these recommendations to further ensure the agencys effectiveness in
protecting immigrant victims of crime in the workplace.
Sincerely,

Eunice Cho
Staff Attorney
National Employment Law Project
Board Member, ASISTA
echo@nelp.org

Gail Pendleton
Co-Director
ASISTA Immigration Assistance
gail@asistahelp.org

LIST OF ENDORSING ORGANIZATIONS:

National Organizations
1. American Federation of Labor-Congress of Industrial Organizations (AFL-CIO)
2. American Federation of State, County and Municipal Employees (AFSCME)
3. American Immigration Lawyers Association (AILA)
4. ASISTA
5. Break the Chain Campaign
6. Catholic Legal Immigration Network, Inc. (CLINIC)
7. Change to Win
8. Economic Policy Institute
9. Freedom Network USA
10. National Day Laborer Organizing Network
11. National Domestic Workers Alliance
12. National Employment Law Project
13. National Farmworker Women's Alliance (Alianza Nacional de Campesinas)
14. National Guestworker Alliance
15. National Immigrant Justice Center
16. National Immigration Law Center
17. National Immigration Project of the National Lawyers Guild
18. Restaurant Opportunities Centers United
19. Service Employees International Union (SEIU)
20. Southern Poverty Law Center
21. Womens Refugee Commission
State/Local Organizations
22. Advocates for Basic Legal Equality, Inc. (ABLE)
23. Americans for Immigrant Justice, Inc.
24. Asian Americans Advancing JusticeLos Angeles
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

APPENDIX D2

25. Asian Pacific Islander Legal Outreach

26. Apoyo Legal Migrante Asociado (ALMA)
27. Ayuda
28. Bet Tzedek
29. California Immigrant Policy Center
30. California Labor Federation
31. California Rural Legal Assistance Foundation
32. Campesinos Sin Fronteras
33. Casa Latina
34. Central American Resource Center of Northern California CARECEN
35. Central West Justice Center
36. Centro de los Derechos del Migrante, Inc.
37. Centro Legal de la Raza
38. Cincinnati Interfaith Workers Center
39. Coalition to Abolish Slavery and Trafficking
40. Community Legal Aid
41. Florence Immigrant & Refugee Rights Project
42. Friends of Farmworkers
43. Greater Boston Legal Services
44. Hispanic Interest Coalition of Alabama
45. Immigration Center for Women and Children
46. Immigrant Law Center of Minnesota
47. Jesuit Social Research Institute/Loyola University New Orleans
48. Just Neighbors
49. Kentucky Coalition for Immigrant and Refugee Rights (KCIRR)
50. Kentucky Immigration Reform Committee (KIRC)
51. La Raza Centro Legal
52. Legal Aid Society-Employment Law Center
53. Legal Aid Society of Cleveland
54. Legal Aid Society-New York
55. Los Angeles Center for Law and Justice
56. Lutheran Social Services of New England
57. Maintenance Cooperation Trust Fund (MCTF)
58. Nationalities Service Center
59. New Orleans Workers' Center for Racial Justice
60. Opening Doors, Inc.
61. Public Justice Center
62. SEIU 32BJ
63. Transgender Law Center
64. United Workers Center of New Mexico
65. Urban Justice Center
66. Vermont Immigration and Asylum Advocates
67. Worker Justice Center of New York
68. Workplace Justice Initiative
69. Worksafe

U Visas Based on Crimes in the Workplace:

USCIS Substantial Abuse Interpretations

APPENDIX D2

Immigration Law Scholars

Caitlin Barry, Visiting Assistant Professor, Farmworker Legal Aid Clinic, Villanova
University School of Law
Kristina M. Campbell, Director, Immigration and Human Rights Clinic, University of the
District of Columbia, David A. Clarke School of Law
Erin B. Corcoran, Professor of Law, University of New Hampshire School of Law
Alan Hyde, Distinguished Professor and Sidney Reitman Scholar, Rutgers University
School of Law
Kathleen Kim, Professor of Law, Loyola Law School Los Angeles
Kenneth A. Mayeaux, Assistant Professor of Professional Practice, Louisiana State
University Paul M. Hebert Law Center
Alizabeth Newman, Clinical Law Professor, Immigrant & Refugee Rights Clinic, CUNY
School of Law
Blake Nordahl, Assistant Professor, Pacific McGeorge School of Law
Sarah H. Paoletti, Practice Professor and Director, Transnational Legal Clinic, University
of Pennsylvania Law School
Leticia Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis
Law School
Veronica T. Thronson, Director, Immigration Law Clinic, Michigan State University
College of Law
Prof. Sheila I. Vlez Martnez, Assistant Clinical Professor of Law, Immigration Law
Clinic, University of Pittsburgh - School of Law
Alex Vernon, Acting Director of Asylum and Immigrant Rights Law Clinic, Ave Maria
School of Law
Shoba Sivaprasad Wadhia, Esq., Samuel Weiss Faculty Scholar, Pennsylvania State
Dickinson School of Law
Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law, School of Law,
University of North Carolina at Chapel Hill

U Visas Based on Crimes in the Workplace:

USCIS Substantial Abuse Interpretations

APPENDIX D2

Workplace-Based U Visa Petitions:

Summary of Problematic Denials, NOIDs, and RFEs by USCIS
USCISs treatment of U visa petitions arising from workplace-based crime reveals the following
areas of concern:
1) USCIS has applied an inconsistent and higher standard for a showing of
substantial physical or mental abuse for victims of workplace crime than for victims
of more commonly filed U visa crimes, including domestic violence. In these cases,
adjudicators have (1) denied cases on the basis that harm suffered by the victim was not
permanent; and (2) concluded that symptoms of harm that ordinarily lead to a finding of
substantial abuse in domestic violence cases were not sufficient in cases involving
workplace crime.
2) USCIS needs more training and education on the context of workplace-based
crimes. USCIS adjudications indicate confusion and misunderstanding of the context
and elements of qualifying criminal activities commonly found in the workplace setting.
In particular, USCIS adjudicators (1) seem confused about the ways broader labor
violations contribute to qualifying abuse suffered by victims of workplace-based crime;
(2) disregard or inadequately consider aggravation of prior injury to applicants; and (3)
impose unreasonable and inconsistent standards of proof to show a nexus between the
qualifying criminal activity and the abuse suffered by victims.
3) USCIS issues generic and template RFEs failing to articulate evidence of substantial
abuse supplied in the original petition and why evidence supplied is insufficient. We
realize USCIS is aware of the general problem of template RFEs; we wish to highlight,
however, how it is impeding proper consideration of workplace-based cases.
We include illustrative examples of these issues below; a summary of relevant cases are included
in the attached Appendix. Please contact Eunice Cho at echo@nelp.org for a copy of full
documents, which we have omitted for ease of electronic transmission due to the number of
recipients.
I. USCIS Applies a Higher And Inconsistent Standard for Showing Substantial
Abuse in Workplace-Based U Visa Petitions
As noted above, USCIS has issued troubling denials, NOIDs, and RFEs in cases involving
workplace crime, reflecting inconsistent and higher standards for a showing of substantial
abuse for victims of workplace crime than for victims of more common U visa crimes,
including domestic violence. We address examples of the problematic analysis below.
A. USCIS Requires Permanent Harm

USCIS has issued several denials concluding that applicants have not suffered substantial
abuse because the harm suffered was not permanent, particularly where the victim had shown
some measures of improvement and recovery.
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

APPENDIX D2

For example, in a recent denial, the AAO stated:

[The psychologists] evaluation and the other evidence in the record fails to demonstrate any
permanent or serious harm to the petitioners overall health, appearance or mental soundness as a
result of the criminal activity perpetrated against her.3

This victim of witness tampering was diagnosed with dysthymic disorder and post-traumatic
stress. The psychological evaluation found that [a]lthough [the petitioner] has been partially
successful by pushing through pain and stress to continue functioning, she is at risk of coping
poorly with any added stresses and become more even more distraught . . . the experience at
[employer] made [petitioner] more vulnerable psychologically for future challenges.4 In its
denial, however, the AAO repeatedly noted evidence of the petitioners improved functioning to
conclude that the harm was insufficient.
In another denial, the AAO noted that:
while [the social worker] and the petitioner described her feeling anxious, fearful and powerless . . . .,
the petitioner also indicated that her life has improved since she cooperated with the DOL
investigation. The record does not demonstrate that, as a victim of witness tampering, the petitioner
has endured any permanent or serious harm to her appearance, health, or physical or mental
soundness.5

In a third denial, the AAO noted that the petitioner also states that things are better in her
life now that she is no longer working for her former employer.6 These statements imply that
USCIS considers resiliency a negative factor.
Nothing in the statute or regulations governing U visas requires that harm be permanent to
constitute substantial abuse; permanent harm is only one of many factors that USCIS may
consider in making a determination.7 Even a casual observer would realize that were USCIS to
apply this standard to survivors of domestic violence, few would qualify for the U visa.8 Indeed,
USCISs insistence that harm suffered by victims of crime be permanent contradicts the goals of
the U visa program itself: one reason the U visa is helpful to noncitizen victims of crimes is that
3

Case 9, Fany Maria Gonzales Aguilar. In re Fany Maria Gonzales Aguilar, A98-795-279, USCIS AAO Decision,
*3, Apr. 10, 2014 (emphasis supplied). See also In re Fany Maria Gonzales Aguilar, A98-795-279, USCIS AAO
Decision, *4, Nov. 13, 2013 (The petitioner and her friend . . . both indicate that the petitioner is doing better.).
4
Case 9, Fany Maria Gonzales Aguilar. Dr. Giselle Hass, Psy.D., Report of Psychological Evaluation in the Matter
of Fany Maria Gonzales Aguilar, Aug. 6, 2013.
5
Case 1, Yusdi Aburto Garcia. In re Yusdi Aburto Garcia, A 88-440-393, USCIS AAO Decision, *4, Jul. 29, 2013
(emphasis added).
6
Case 16, Lourdes Marcela Tapia Vasquez. In re Lourdes Marcela Tapia Vasquez, A 88-440-386, USCIS AAO
Decision, *4, May 24, 2013.
7
USCIS may consider the extent to which there is permanent or serious harm to the appearance, health, or physical
or mental soundness of the victim as one of several factors in determining substantial abuse. 8 C.F.R.
214.14(b)(1).
8
See, e.g. Immigrant Legal Resource Center, The U Visa: Obtaining Status for Immigrant Victims of Crime,
Appendix S (2010) (discussing methods to substantiate substantial mental and physical abuse with examples of
successful U visa petitions for victims of domestic violence).
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

APPENDIX D2

it offers a path to surviving and thriving, not remaining a perpetual victim.9 We doubt
Congress would agree with denying status to survivors because they no longer consider
themselves purely as victims and are able to overcome the harm theyve suffered from a
qualifying crime.
B. USCIS Requires Greater Harm for Workplace-Based U Visa Petitions Than

for Cases Involving Sexual Assault or Domestic Violence

The VSC has issued denials articulating facts as inadequate that, if applied to domestic
violence cases, would result in finding sufficient harm. VSC frequently states in RFEs for
workplace-based U visas that nervousness, anxiety and distress and fear, stress and anxiety
are not substantial physical or mental abuse.10 For example, in one recent revocation of an
approved workplace-based U visa, VSC found that nervousness, headaches, and sleeplessness
are not substantial physical or mental abuse.11 In another case, VSC found that headaches and
feelings of fear and nervousness, which led a forensic social worker and a psychologist to
diagnose the petitioner with Post Traumatic Stress Disorder, were not sufficient to demonstrate
substantial abuse.12
Were USCIS to apply this approach to victims of domestic violence and sexual assault, they
would deny most U visas based on those crimes. Nervousness, fear, distress, sleeplessness,
stress, and anxiety have been and should continue to be sufficient harm for a showing of
substantial abuse for U visa applications based on sexual assault or domestic violence. They are
textbook examples of the harm commonly suffered by such survivors.13 Moreover, USCISs
summary conclusion that these symptoms do not constitute substantial mental abuse is
inconsistent with widely understood clinical diagnoses linking these symptoms to psychological

The purpose of the U nonimmigrant classification is to strengthen the ability of law enforcement agencies . . .
while offering protection to alien crime victims in keeping with the humanitarian interests of the United States.
New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status, 72 Fed. Reg. 53014
(Sept. 17, 2007).
10
See, e.g. Case 1, Yusdi Aburto Garcia. USCIS Vermont Service Center, Denial of U Visa Petition, Yusdi Aburto
Garcia, A 088-440-393, Nov. 5, 2012 (concluding that nervousness, anxiety and distress are not substantial
physical or mental abuse); Case 2, Maria del Carmen Aguilera Mora. USCIS Vermont Service Center, Denial of U
Visa Petition, Maria del Carmen Aguilera Mora, A 205-033-437, Nov. 5, 2012 (concluding that fear, stress and
anxiety are not substantial physical or mental abuse); Case 9, Fany Maria Gonzales Aguilar. USCIS Vermont
Service Center, Denial of U Visa Petition, Fany Maria Gonzales Aguilar, A 098-795-279, Nov. 5, 2012 (concluding
that nervousness, anxiety, and distress are not substantial physical or mental abuse).
11
Case 3, Carmen Amaguyaya Cajo. In re Carmen Amaguaya Cajo, A 088-440-394, USCIS Vermont Service
Center Decision, *4, Jan. 3, 2014. This petitioner has since received a diagnosis of Major Depressive Disorder and
Post Traumatic Stress disorder. See Case 3, Dr. Giselle Hass, Psy.D., Report of Psychological Evaluation in the
Matter of Carmen Amaguyaya Cajo, Feb. 5, 2014.
12
Case 6, Rosa Bautista Arrellano. USCIS Vermont Service Center, Notice of Intent to Revoke, Rosa Bautista
Arrellano, A 088-440-382, Nov. 12, 2012 (notice of intent to revoke approval of U visa previously granted); Letter
from Wanjuri Hawkins, LMSW, to USCIS, Re: Rosa Bautista Arellano, Aug. 2, 2012; Dr. Giselle Hass, Psy.D.,
Report of Psychological Evaluation, In the Matter of Rosa Bautista Arrellano, Mar. 27, 2014.
13
See, e.g. Immigrant Legal Resource Center, The U Visa: Obtaining Status for Immigrant Victims of Crime,
Appendix S (2010) (discussing methods to substantiate substantial mental and physical abuse with examples of
successful U visa petitions for victims of domestic violence).
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

APPENDIX D2

disorders that impair a victims soundness and functioning, including depression, somatization,
and Post-Traumatic Stress Disorder.14
In the domestic violence context, USCIS has received training on how mental and emotional
harm reveals the profound impact of sexual assault and domestic abuse on those who experience
them. Many survivors of domestic violence and sexual assault, for instance, say that overcoming
psychological harm is much harder than recovering from abrasions and broken bones. We
suggest that there is no rationale for finding such harm insufficient for other kinds of crimes.
USCIS should apply a consistent analysis of harm to victims of workplace-based crime,
including witness tampering, obstruction of justice, perjury, and extortion.15
II. USCIS Needs Additional Training and Education on the Context of WorkplaceBased Crimes
USCISs adjudication of U visa petitions indicates a need for training and education on the
context of workplace-related crimes. One reason USCIS applies a more helpful standard for
domestic violence cases is the regular and extensive training adjudicators receive on domestic
violence and its context.
As domestic violence and sexual assault training has shown in the past, an understanding of
the context of the crime for the individual is essential to understanding the harm an individual
suffers, which is framed as substantial abuse for U visa applicants. For instance, adjudicators
are trained to understand that abuse may be both objective and subjective, and that the facts of an
individual case, seen in a broader context, often elucidate the subjective harm experienced by a
victim.16 Many examples of abusive behavior in domestic violence cases are not qualifying
crimes (i.e., humiliation and economic control), but the harm these forms of abuse may cause is
directly related to qualifying criminal acts by abusers (such as assault). Perpetrators may, for
example, use gestures that to others would be meaningless but to their victims means I will hit
you, kill you, or harm our child if you dont comply. Similarly, the threats that employers use
against employees who fight back against their unlawful labor practices are particularly effective
and harmful because they are rooted in the context of exploitation and abuse that workers have
suffered at the worksite.
We respectfully suggest that the AAO and VSC halt any denials of workplace-based cases
until USCIS has conducted training on the context of such crimes.
14

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (2013); J.G. Allen, et
al., Complexities in Complex Post-Traumatic Stress Disorder in Inpatient Women: Evidence from Cluster Analysis
of MCMI-III Personality Disorder Scales, 73 J. Personality Assessment 449 (1999). See also Project REACH,
Utilizing Trauma-Informed Approaches to Trafficking Related Work (2014), available at:
http://www.traumacenter.org/resources/H-O%20Trauma-Informed%20Case%20Study_final_2.pdf (listing
symptoms of trauma in victims of human trafficking).
15
See 5 U.S.C. 706(2)(a) (regarding unlawful agency action that is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.).
16
USCIS has concluded that it is reasonable to consider both the severity of the abuse inflicted by the
perpetrator and the severity of the injury suffered by the victim in its substantial abuse determinations. 72 Fed.
Reg. 53014, 53018.
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

APPENDIX D2

A. USCIS Adjudicators Need Training on the Relationship between Labor

Violations and Substantial Abuse in Workplace Obstruction of Justice, Witness
Tampering and Perjury Cases
U visa regulations acknowledge, to some degree, that the underlying context of abuse is
relevant in cases involving obstruction of justice, witness tampering, and perjury. They require
petitioners who are victims of obstruction of justice, witness tampering, and perjury to establish
that the perpetrator committed the offense to avoid efforts to bring the perpetrator to justice, or to
further the perpetrators abuse or exploitation or undue control over the petitioner through
manipulation of the legal system.17 This language explicitly acknowledges, and ties eligibility to,
the context of employer exploitation and control.
Underlying labor violations warranting intervention from federal and state labor and
employment agencies, such as wage and hour violations, might not, in themselves, constitute
qualifying criminal activity. Such violations do, however, inform the broader context of abuse,
intimidation, and control in which the qualifying crimes by employers take place. Employers
may seek to derail investigations of their misconduct through witness tampering, obstruction of
justice, and perjury. As in domestic violence cases, the resulting harm suffered by victims of
these crimes is grounded in the broader context of the employment relationship. USCIS,
however, seems confused by the context of these cases, often assuming that the existence of
underlying labor violations nullifies the qualifying crime and the harm it causes. For example, in
one denial of a witness tampering case, VSC stated that
It appears that you were a victim of New York State Department of Labor (NYSDOL) pay violation .
. . in addition to other violations. However, these are not considered qualifying criminal activities as
defined above, nor have you demonstrated that the similarities are substantial. The evidence provided
with your filing does not include sufficient information to conclude that N.Y. Labor law violations
and witness tampering are similar.18

The applicant did not argue that labor law violations are similar to witness tampering; she merely
showed that the witness tampering took place because she was challenging underlying labor
violations. Without the underlying labor violations, the perpetrator/employer would not need to
engage in witness tampering. If USCIS will only consider witness tampering as a qualifying
crime when there are no underlying labor law violations, then it is eliminating most workplacebased crimes as qualifying U crimes. There is no basis in the statute or regulations for this result.
B. USCIS Adjudicators Need Training on Evaluating Aggravation of Prior Injury
and a Series of Acts Showing Substantial Abuse

8 C.F.R. 214.14(a)(14)(ii).
Case 3, Carmen Amaguaya Cajo. USCIS Vermont Service Center, Denial of U Visa Petition, Carmen Amaguaya
Cajo. A 088-440-394, Jan. 3, 2014.
17
18

U Visas Based on Crimes in the Workplace:

USCIS Substantial Abuse Interpretations

10

APPENDIX D2

Under the regulations, adjudicators must account for the aggravation of a victims preexisting conditions when making a substantial abuse determination.19 Adjudicators also should
consider a series of acts (a form of totality of circumstances test) as demonstrating substantial
abuse by the perpetrator, even if no single act alone rises to that level.20 The regulations
accurately reflect well-established concepts of trauma.21 USCIS adjudicators, however, have
dismissed or ignored credible evidence of pre-existing conditions suffered by victims of crime in
the workplace and often seem more inclined to deny than grant when presented with a pattern of
harm.
In particular, the AAO seems unaware of aggravation of prior injury prong of the
regulations. In one denial, the AAO noted:
[The psychologists] evaluation primarily focuses on childhood experiences and events
at the petitioners former place of employment unrelated to the qualifying criminal
activity, witness tampering.22

In another case, the AAO concluded that

[The psychologists] evaluation, which discusses many events in the petitioners life, does not
sufficiently demonstrate that the petitioners dysthymic disorder is directly related to the witness
tampering.23

These statements reveal inadequate training on (1) USCISs own regulations, as well as (2)
the interpretation of those regulations in the context of the complex trauma that takes place in
workplace-base crimes and (3) how employer threats may trigger trauma symptoms within an
abusive workplace context. Prior trauma, pre-existing conditions and the history of workplace
trauma all are relevant to the harm triggered by witness tampering, obstruction of justice,
perjury, and other qualifying crimes in the workplace.
C. USCIS Adjudicators Need Training on Satisfactory Proof of Nexus between the
Qualifying Criminal Activity and the Abuse Suffered by Victims of Workplace-Based
Crime
Petitioners must establish that the harm suffered by the victim is the result of the
qualifying criminal activity.24 USCIS adjudicators, however, have erroneously denied petitions

19

Whether abuse is substantial is based on a number of factors, including but not limited to: . . . the extent to which
there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim,
including aggravation of pre-existing conditions. 8 C.F.R. 214.14(b)(1).
20
A series of acts taken together may be considered to constitute substantial physical or mental abuse even where
no single act alone rises to that level. 8 C.F.R. 214.14(b)(1).
21
Marylene Cloitre et al., A Developmental Approach to Complex PTSD: Childhood and Adult Cumulative Trauma
as Predictors of Symptom Complexity, 22 J. Traumatic Stress 399 (2009); Kristine Jentoft Kinniburgh et al.,
Attachment, Self-Regulation and Competency, 35 Psychiatric Annals 424 (2005).
22
Case 1, Yusdi Aburto Garcia. In re Yusdi Aburto Garcia, A 088-440-393, USCIS AAO Decision, *4, Mar. 5,
2014.
23
Case 9, Fany Maria Gonzales Aguilar. In re Fany Maria Gonzales Aguilar, A 098-795-279, USCIS AAO
Decision, *3, Apr. 10, 2014.
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

11

APPENDIX D2

and frequently issue RFEs where petitioners have submitted clear and conclusive evidence of a
nexus between the qualifying crime and the harm suffered by the applicant.25
USCIS adjudicators summarily dismiss credible and reasonable evidence, including
declarations and evaluations by psychologists or licensed social workers establishing that the
harm suffered by victims was caused by the employers criminal activity. For example,
adjudicators have found a nexus lacking between the crime and the harm suffered by the victim
because the petitioner experienced exploitation or mistreatment beyond that which was identified
as the qualifying criminal activity by the certifying agency. For example, the AAO offered the
following analysis in its denial:
[The psychologist] diagnoses the petitioner with dysthymic disorder, stating that the petitioners
mental health conditions are related not only to the certified crime, but also to other activities that
occurred at the petitioners former place of employment, such as sexual harassment, sexual
exploitation, extortion, and dangerous working conditions. The harm that USCIS assesses under
the standards and factors of 8 C.F.R. 214.14(b)(1) derives from the certified criminal activity.26

The abuse, exploitation and control mentioned here are relevant to the aggravated injury
caused by later threats and retaliation when workers attempt to hold the employer accountable
for violating the law. As with sexual assault and domestic violence cases, such prior harm need
not flow from the qualifying crime. Under the AAOs analysis, however, harm derived from
more than one cause is not considered qualifying harm at all. This single cause nexus is
required neither in the statute nor the regulations and, if applied to many domestic violence and
sexual assault cases, would result in denials.
III. USCIS Adjudicators Need Training on Crafting RFEs that Articulate the Evidence
of Substantial Abuse Supplied by Petitioner, and Why Such Evidence Is
Insufficient
As in other types of U visa petitions, USCIS routinely issues RFEs requesting additional
documentary evidence of substantial abuse in cases involving crime in the workplace. This is
true even where petitioners have submitted significant amounts of credible evidence, including
declarations, news articles, and supplemental letters from witnesses discussing the abuse and
24

In order to qualify for a U visa, an individual must have suffered substantial physical or mental abuse as a result
of having been a victim of qualifying criminal activity. 8 U.S.C. 1101(a)(15)(U)(i)(I). As the DHS has explained,
federal statutory provisions consistently define victim as one who has suffered direct harm or who is directly and
proximately harmed as a result of the commission of a crime. 72 Fed. Reg. 53,014, 53,016 (citations omitted).
25
See, e.g. Case 7, Zulma Bonilla Gomez. Ms. Bonilla was a victim of extortion, conspiracy of trafficking, and
attempted involuntary servitude. Her petition included a diagnosis of depression and PTSD by a psychologist and a
licensed social worker, diagnosis for Bells Palsy with a supporting physician letter, personal declaration, supporting
declarations, and medical records. VSC denied the petition for lack of substantial abuse. In its denial, VSC noted
only that [t]he medical notes do not appear to reference any physical or mental abuse you suffered as a result of the
incident . . . you do not provide evidence of a linkage between the incident and the information provided on Bells
Palsy. USCIS Vermont Service Center, Denial of Petition, Zulma Areli Gomez Bonilla, A 206-613-039, *3, Feb.
26, 2014. See also Case 16, Lourdes Marcela Tapia Vasquez. Dr. Gustavo E. Rife, Psy.D., Report of Psychological
Evaluation in the Matter of Lourdes Marcela Tapia Vasquez, A 088-440-386, Jun. 15, 2013.
26
Case 9, Fany Maria Gonzales Aguilar. In re Fany Maria Gonzales Aguilar, A98-795-279, USCIS AAO Decision,
*3, Apr. 10, 2014.
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

12

APPENDIX D2

harm suffered by the victim in the original petition.27 In addition, some adjudicators seem to
have difficulty identifying the elements of force, the threat of force, or the threat of legal
coercion in cases involving involuntary servitude and trafficking, even where the petitioner has
provided clear evidence of these elements.28 In one case, the petitioner submitted a detailed
affidavit and Form I-918B describing abusive and coercive working conditions:
On a daily basis I was called insulting names and threatened by the owners and their supervisors . . . .
It made me feel like I was worthless. I was always afraid of being deported . . . I cut my foot with a
knife while working. I went upstairs to one of the owners to let him know I hurt my foot. He
answered he didnt care and if I couldnt move my foot enough to work he would just take care of me
and put me in the dumpster. I wasnt sure if he was threatening to fire me and throw me in the trash or
if he was threatening to kill me and put my body in the dumpster . . . .29

VSC, however, issued an RFE stating that

There is no evidence contained in the record to suggest that [employer] forced you to work for them.
It also cannot be concluded that you were forced to remain working for [employer] against your will,
that you were threatened or abused while at work, or that you were forced to engage in misleading
conduct.30

The same RFE instructed the petitioner to [s]ubmit a signed statement in your own words
describing the facts of your victimization . . . . Please provide evidence to demonstrate that you
are the victim of substantial physical or mental abuse as a result of qualifying criminal
activity.31
27

See, e.g. Case 4, Mario Alberto Ardon Flores, A 089-483-295; Case 5, Isidro Artiga Artiga, A 205-892-981; Case
8, Rodolfo Cax Ramirez, A 206-282-581; Case 10, Issac Gamaliel Hernandez Vasquez, A 094-114-675; Case 11,
Fabian Lonodono Taborda, A 097-564-697; Case 12, Martir Rolando Lopez Alas, A 205-902-854; Case 13, Eleazar
Medrano Martinez, A 205-902-857; Case 14, Daniel Omar Quintana, A 206-282-577; Case 15, Rey Librado Rios
Ibanez, A 205-901-620.
28
18 U.S.C. 1584 prohibits holding a person in involuntary servitude, which occurs when an employer knowingly
compels a workers labor for a period of time against a workers will by the use of force, the threat of force, or the
threat of legal coercion. 18 U.S.C. 1589 also prohibits forced labor by means of psychological and nonviolent
coercion. 22 U.S.C. 7102(9)(B) defines severe forms of trafficking in persons as the recruitment, harboring,
transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion
for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. State anti-trafficking and
involuntary statutes may include broader definitions. Polaris Project, 2013 State Ratings on Human Trafficking
Laws (2013), available at http://www.polarisproject.org/storage/documents/POC/2013-State-Ratings_pamphlet3pgr.pdf. See also Kathleen Kim, The Coercion of Trafficked Workers, 96 Iowa L. Rev. 409 (2011) (describing
elements of coercion in cases involving involuntary servitude, trafficking, and forced labor).
29 Case 4, Mario Alberto Ardon Flores. In re Mario Alberto Ardon Flores, A 200-069-491, Index to Supporting
Documentation (quoting Affidavit).
30
Case 4, Mario Alberto Ardon Flores, A 089-483-295. USCIS Vermont Service Center, Request for Evidence,
Mario Alberto Ardon Flores, A 089-483-295, * 4, Mar. 12, 2014.
31
Case 4, Mario Alberto Ardon Flores. USCIS Vermont Service Center, Request for Evidence, Mario Alberto
Ardon Flores, A 200-069-491, *4, Mar. 12, 2014. The U.S. DOLs certification also substantiated the conditions of
the petitioners abusive work environment, stating [petitioner] suffered substantial mental and emotional harm as a
result of the coercive work environment perpetrated by [employer]. He worked in a state of persistent fear due to the
managers intimidating abuse and threat of deportation. In re Mario Alberto Ardon Flores, A 200-069-491, Index to
Supporting Documentation (quoting I-918B U Visa Certification Form Signed by Regional Administrator, U.S.
DOL).
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

13

APPENDIX D2

In another example, VSC issued a summary RFE requesting additional evidence of

substantial abuse for a victim of involuntary servitude, obstruction of justice, and witness
tampering at the hands of his employer. The petitioner had provided a declaration describing the
slave-like conditions of his labor and the physical and psychological injuries suffered as a result;
medical records; and several newspaper articles describing the abuses and poor living conditions
endured by laborers. VSC, however, requested that the petitioner provide evidence to
demonstrate that you are the victim of substantial physical or mental abuse [sic] as a result of
qualifying criminal activity.32
VSC has issued generic and template RFEs that fail to articulate evidence of substantial
abuse supplied by the petitioner, even where petitioners have included declarations and
supporting documents that speak directly to the non-financial mental or physical harm suffered
by victims. Instead, a number of RFEs for workplace-related U visa cases include only a blanket
statement that labor violations involving lost wages do not constitute substantial abuse. Again, a
recent RFE stated: regulation does not expressly reference crimes involving financial losses,
therefore, loss [sic] wages would not establish that you were victim [sic] of substantial physical
or mental abuse.33 Several other RFEs have noted that [r]egulation does not expressly
reference crimes involving financial loss. Therefore, such crimes are not included as qualifying
criminal activity for U nonimmigrant status.34 The applications did not solely rely on financial
harm to meet the substantial harm requirement, yet the adjudicators seem to seize on the mention
of financial harm to dismiss entirely the evidence supplied.
These RFEs suggest that VSC adjudicators need additional training, oversight and review of
decisions on workplace-specific crimes.
IV. Conclusion
For these reasons, we request that the AAO and VSC halt any denials in U visa applications
based on workplace-based crimes until USCIS implements new training for both VSC and AAO
officers on the nature and context of workplace-based crimes (as was done in the past for
domestic violence and sexual assault). We would be happy to provide the agency with
suggestions for trainers and background information on this subject.
We appreciate USCISs commitment to protecting victims of crime, and raise these issues in
the spirit of collaboration and cooperation. We hope to meet with those of you involved in
implementing this aspect of the law, either by phone or in person. For more information on any
of the RFEs, NOIDs, and denials attached, or if you have any questions, please contact Eunice
Cho at echo@nelp.org, or Gail Pendleton at gail@asistahelp.org at any time.
32

Case 5, Isidro Artiga Artiga. USCIS Vermont Service Center, Request for Evidence, Isidro Artiga Artiga, Isidro,
A 205-892-981, *2, Jan. 15, 2014.
33
Id.
34
Case 12, Martir Rolando Lopez Alas. USCIS Vermont Service Center, Request for Evidence, Martir Rolando
Lopez Alas, A 205-902-854, *2, Feb. 19, 2014; Case 13, Eleazar Medrano Martinez. USCIS Vermont Service
Center, Request for Evidence, Eleazar Medrano Martinez, A 205-902-857, *2, Feb. 19, 2014; Case 15, Rey Librado
Ibanez. USCIS Vermont Service Center, Request for Evidence, Rey Librado Ibanez, A 205-901-620, *2, Feb. 19,
2014.
U Visas Based on Crimes in the Workplace:
USCIS Substantial Abuse Interpretations

14

APPENDIX D2