The way which America enforces its drug laws has been racist since its inception. Across racial and ethnic groups, Americans use and sell drugs at comparable rates, but law enforcement has selectively targeted Black and brown people for stops, arrests, prosecution, and imprisonment at wildly disproportionate rates.

This race-based enforcement is not only limited to a handful of police departments, regions of the country, or political ideologies. Rather, it has defined American policing across the board, from severely segregated cities in the Midwest to the beacons of progressive politics in the Northeast and West Coast.

So it should come as no surprise that in 2013, when the San Francisco Police Department (SFPD) teamed up with the U.S. Drug Enforcement Agency (DEA) to go after people selling small amounts of drugs in the city’s Tenderloin District, the SFPD focused on Black people. Even though people of all races engage in the Tenderloin’s drug trade, and 40 percent of those are white and Latinx, all 37 individuals federally prosecuted in the two SFPD/DEA operations were Black. One SFPD officer involved in the operation was captured on video ignoring an Asian-American person engaged in drug activity in favor of arresting a Black person instead. Another officer was heard saying “fucking BMs” (i.e., Black males) as the camera was focused on a group of Black men and women.

Why would the SFPD target Black people specifically for federal prosecution? Because federal drug laws carry harsher punishment — including mandatory minimum sentences — than charges brought in state court. Further, studies have repeatedly shown that Black people are charged and sentenced more harshly than similarly situated white people in federal court.

After the prosecutions were consolidated into a single case (over the government’s objection), a federal district court judge found that there was “substantial evidence suggestive of racially selective enforcement by the [police department].” He ordered the police department to produce further discovery in response to several defendants’ motion seeking evidence proving that the SFPD had impermissibly targeted them because of their race. The U.S. Attorney eventually dismissed the cases rather than expose evidence of police wrongdoing. The government’s actions in the case were a part of a long standing tradition that uses the so-called War on Drugs to selectively target marginalized groups, including Blacks, Mexicans, and Chinese.

That is when the American Civil Liberties Union, the ACLU of Northern California, and the law firm Durie Tangri LLP sued the SFPD on behalf of the Black people whose constitutional rights had been violated.

In a groundbreaking victory, the plaintiffs have reached a settlement with the City of San Francisco under which each client will be compensated for the harm they suffered at the hands of the SFPD. Moving forward, San Francisco’s Department of Police Accountability will now include a “racial bias” category on its complaint form and in its intake process for anyone who feels that they have been mistreated by the police because of their race.

This victory is significant because what happened to our clients has been business as usual for the SFPD and police departments across the country for quite some time. The SFPD’s long history of racially discriminatory law enforcement has been documented through reports published by a range of organizations and agencies, including the Hayward Burns Justice Institute, the U.S. Department of Justice, and a Blue-Ribbon panel convened by the San Francisco District Attorney’s Office which all identified a plethora of racially biased practices in SFPD’s stops, searches, arrests, use of deadly force, and data collection.

The Blue Ribbon panel documented how several SFPD officers exchanged racist text messages, which referred to Black people using the N-word and “savages,” and referencing cross burnings. Thus, the SFPD has carried on the American tradition of dehumanizing Black people for an activity often ignored when engaged in by white people.

For 40 years, prohibition has been a major driver of America’s gargantuan jail and prison population, done little to curb drug abuse and distribution, wasted billions of dollars, militarized the police, and caused grievous harm to communities and families it was pretending to help.

Ultimately, the only solution to the issue in San Francisco, as in most American cities, is to shrink the size, reach, and responsibilities of the police department, and decriminalize the use and possession of drugs. Until then, hopefully, this settlement, which builds upon a long-documented history of racism in the SFPD, will create a process through which the police can be held more accountable and contribute to ending the SFPD’s harmful and humiliating enforcement practices targeting the Black community.

Ezekiel Edwards, Director, ACLU Criminal Law Reform Project,
& Shilpi Agarwal, Interim Legal and Policy Director and Senior Staff Attorney, ACLU of Northern California

Adham Hassoun will finally have his day in court. A federal judge has rejected the government’s sweeping claim that it can, on its own say-so, indefinitely imprison him without charge and without a fair trial.

Adham is a long-time U.S. resident and a father of three. As we previously explained, Adham completed his criminal sentence and was set to be released from prison almost three years ago. But the government — claiming unprecedented and unconstitutional powers — is seeking to keep him locked up indefinitely, perhaps for the rest of his life, based on executive fiat.

Adham is challenging his unconstitutional detention in court. We’re representing Adham together with the New York Civil Liberties Union, the Clinical Legal Education Program of the University at Buffalo School of Law, and the Mandel Legal Aid Clinic University of Chicago Law School.

In December, the district court rejected one of the government’s two justifications for detaining Adham. The government argued that, under a rarely-used administrative regulation, it could unilaterally declare Adham a danger to national security and deny him the basic rudiments of due process. The government claimed Adham had no chance to contest the accusations against him before a judge, and said he instead had to prove his innocence to the very people trying to keep him imprisoned. In its ruling, the court rightfully recognized that depriving a person of liberty through such a flimsy and one-sided process raises serious constitutional problems, and declared the regulation “a legal nullity.”

The court also rejected the government’s second argument — that it could detain Adham under a never-before used provision of the USA Patriot Act without first affording him a judicial hearing. Normally, even when individuals are ordered removed under immigration laws, the government can’t continue detaining them unless it will actually be able to remove them in the foreseeable future. A judge has already ruled that Adham’s removal isn’t foreseeable because there is no country he can be sent to, but instead of releasing him — as our Constitution and values require — the government has opted to keep him locked up based on an assertion that he’s dangerous. According to the government, the Patriot Act allows the executive branch to keep a supposedly “dangerous” person behind bars forever, no matter how flimsy the evidence against him, with no significant review by a judge.

As we argued to the court, the government cannot use the Patriot Act to circumvent Adham’s constitutional rights. If the government has reason to detain Adham, it must charge him with a crime or at least present its evidence before a court and give Adham an opportunity to mount a defense — as the Constitution demands.

In a win for constitutional rights, the judge has ordered that Adham at minimum be given a fair hearing, which is scheduled for April 28. There, the government will be required to prove to the court that Adham’s detention is justified. It will also need to convince the judge that the flimsy evidence it allegedly has against Adham meets the rigorous clear and convincing evidence standard, which properly places a significant onus on the government to strip a person of his or her liberty. The judge already expressed skepticism of any evidence relying on anonymous hearsay — that is, information a witness does not have personal knowledge of, including things they heard second- and third-hand from others.

Additionally, the court rejected the government’s plea to hold the hearing at the federal detention center in Batavia, New York, where Adham is imprisoned and where public access could be restricted. Instead, the court said the hearing will be at a federal courthouse in Buffalo, New York, noting that “[o]ne of the strongest pillars of our system of justice in the United States is the presumption that all judicial proceedings are open to the public whom the judiciary serves.”

Adham is getting his long-awaited day in court. We’ll be there to hold the government to its burden, and to defend his — and our — right to liberty.

Jonathan Hafetz, Senior Staff Attorney, ACLU Center for Democracy

A Salvadoran mother of three from Melbourne, who has been in Florida more than 15 years and has two U.S.-born children, is facing deportation as early as Saturday. Why? What it comes down to is this: In 2012, she was detained in a traffic stop because she wasn’t wearing a seat belt. The officer discovered she didn’t have a driver’s license and arrested her.

She was turned over to Immigrations and Customs (ICE) agents and, because she had entered the country illegally after fleeing the bloodshed in El Salvador, she was ordered deported. But for eight years her deportation was put on hold, as long as she reported regularly to Immigration and Customs Enforcement appointments, which she did.  She also avoided any other trouble with the law. But the Trump administration has now decided she must go, despite the fact that she has two American citizen boys at home, ages 11 and 2.

Her name is Vilma Diaz, age 41, and I am the immigration attorney who represents her. She and her husband run a two-person landscaping service. They also are regular attendees at the Nueva Vida (New Life) Baptist Church in Melbourne, where her husband conducts a special ministry.

Vilma also must dedicate much of her time to her 11-year-old son, Axel, who has severe health problems -- asthma, serious gastrointestinal problems, and a congenital heart defect that must be monitored annually by a cardiologist.

Does a church-going housewife who spends all her time taking her child to the doctor and attending church functions pose a threat to society?  Is a woman with one traffic ticket to her name one of the vicious killers President Donald Trump has warned us about?  Personally, I have five lifetime traffic tickets to my name, and they're still letting me practice law, so I sure hope not.

When she is deported, she will take her U.S.-born children with her to a nation that has been ranked “the murder capital of the world.”  This is the home base of the vicious street gang MS-13 we're talking about. As U.S. citizens, her children will almost certainly be targeted by gangsters, who will figure they have U.S. family members with money. Extortion, rape, kidnapping of her or her children, murdering one of them -- none of these things happening to them will surprise me if I hear about it in the near future.

This deportation will be especially dangerous for Axel, who has had to be rushed to the emergency room over a dozen times with asthma attacks. In El Salvador, he'll be a 90-minute drive from the nearest medical center with no vehicle to get there.  He regularly has to use his nebulizer, which requires electricity, and electricity in most areas of that country is far from dependable.

Doctors have not yet determined the source of his severe gastrointestinal problem. He vomits frequently, sometimes multiple times a day.  Furthermore, there is always a risk that his congenital heart defect could one day result in complications, which could be disastrous if he is not monitored by a cardiologist.  In fact, his cardiologist requested that he return this month for a cardiac stress test but that won't happen with this deportation.

Did Vilma want to drive without a license? No, obviously she didn’t. While 14 states in this country allow undocumented workers to have driver’s licenses, Florida has refused to do so. Florida’s three largest industries – agriculture, tourism and construction – all depend on those workers to do the work that the state needs. Arguably, Florida depends more on the undocumented than any other state to foment its economy, but Florida lawmakers look for ways to make the lives of those workers as precarious as possible.

In an area like Melbourne, you have a choice between driving or neglecting your children. You either drive or let your children go without food and go without medical attention when they are sick. Do you miss your child's annual cardiologist appointment in Orlando? Do you miss the meeting at your child’s school where his illnesses are being evaluated and his education being discussed?  What is the worse crime -- driving without a U.S. license, or felony child neglect?

It's not something that the threat of a ticket or arrest or even deportation will prevent. Parents will do anything to protect their kids. So, with the kind of laws we have in Florida, you're going to have uninsured drivers on the road no matter what.  What other states have learned is that it's safer for everyone if we make sure that even undocumented people can obtain car insurance.

In the end, we are not just speaking about Vilma and her driving infraction but the future of her U.S.-born children. If you want to prioritize the well-being of U.S. citizens over people who entered the country unlawfully, you should do so in this case as well. Deporting Vilma will put the lives of her children at risk, especially Axel. Let this little boy stay where he has access to medical care and English-speaking schools, where he can one day become a contributing taxpayer with a U.S. high school diploma and hopefully a college degree.

If he survives the carnage in El Salvador and returns here as an adult, as a U.S. citizen but with no U.S. high school diploma, what kind of future will he face and what kind of taxes is he going to be paying here? Here is an interesting fact I picked up: Second-generation Americans are the highest-contributing taxpayers of people in their age group.  Keeping families together is the best economic stimulus our country can get. That's why Americans cannot stress enough the importance of the family unit.  We have to look at what makes sense from both a humanitarian and an economic standpoint.

Deporting Vilma Diaz will not make any U.S. citizens safer. In fact, it will endanger the lives of two of those citizens – her children. It shouldn’t happen.

Karen Iezzi is an immigration attorney based in Satellite Beach.