<- Back to Washington in Action Winter 2023 Newsletter - Table of Contents
The Legal Department at the ACLU of Washington has had a busy 2023 as we advanced litigation and court-based advocacy in every priority area. The ACLU-WA continues to shape the legal landscape through its robust amicus practice before the Courts of Appeals and the Washington Supreme Court. Below is a sampling of our recent court-based advocacy.
ACLU-WA v. King County
We filed a lawsuit to enforce the Hammer v. King County settlement agreement relating to issues around conditions being experienced by inmates at the King County Correctional Facility (KCCF). The settlement agreement requires the jail to maintain certain conditions, subject to court enforcement. Recent severe staffing shortages have resulted in people not being transported to medically necessary appointments, not receiving the appropriate time out of cell, and not being transported to court. KCCF has had the highest number of deaths in recent memory. The ACLU-WA filed a lawsuit in Pierce County to protect people incarcerated in the facility by enforcing the settlement agreement.
Nwauzor, et al. v. The Geo Group, Inc.
In August 2023, ACLU-WA filed an amicus brief in Ugochukwu Goodluck Nwauzor, et al. v. The Geo Group, Inc., presently before the Washington Supreme Court. The Geo Group (GEO) is a for-profit, private corporation that runs detention centers across the country, including the Northwest ICE Processing Center (NWIPC) in Tacoma. As part of running this detention center, GEO implemented a work program in which civil detainees being held at NWIPC essentially run the facility but are only paid $1.00 a day for their labor. The State of Washington and the other plaintiffs argue that paying civil detainees just $1.00 a day is in violation of the Washington Minimum Wage Act (MWA). Our amicus brief focuses on the history of worker-related laws that show Washington has a “long and proud history of being a pioneer in the protection of employee rights” and argues this history supports finding that workers at NWIPC are employees as defined by the MWA and are entitled to be paid minimum wage as outlined by the MWA.
Religious discrimination
The ACLU-WA has received a number of complaints from lockdown facilities regarding ongoing religious discrimination in violation of the First Amendment, Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The alleged violations include refusal to provide kosher meals (Okanogan and Snohomish Counties), refusal to provide halal meals and cooperate with the Muslim observance of Ramadan by providing meals after sundown (Green Hill School and Pierce County), interfering with a Muslim individual’s religious attire and failure to provide access to Islamic television channels (Coyote Ridge Corrections Center). An additional complaint from an individual at the Washington State Penitentiary (WSP) in Walla Walla included an allegation that Muslim incarcerated people were denied access to Ramadan activities, including congregational prayer services, and were forced to pray in cells with toilets, in violation of Islamic principles, and a refusal by WSP staff to allow Muslim incarcerated people to observe their prayer services outside of yard time, resulting in Muslim inmates being forced to pray outside, even in severe weather. We wrote advocacy letters to these institutions to raise concerns, remind them of their obligations to provide religious accommodations pursuant to the RLUIPA and engaged in further investigation of their practices.
Criminal Legal System
State of Washington v. Heng and State of Washington v. Charlton
With two amicus briefs addressing the right to counsel at bail hearings, the ACLU-WA continued to champion the protection of people’s civil rights within the criminal legal system. In both cases, the defendants were denied the right to counsel at their respective initial appearance and bail hearings. Our briefs argue that both the United States and Washington State Constitutions require the appointment of counsel at appearances where bail is set and a denial to do so results in a constitutional and civil rights violation. Both briefs also highlight how the failure to provide counsel for preliminary appearance hearings not only harms individuals but, more generally, communities, in a manner that ultimately undermines faith in the criminal legal system.
LGBTQIA2s+ Rights
Lotusflower v. Sinclaire
The ACLU-WA represented a transwoman incarcerated in Department of Corrections (DOC) facilities. Our lawsuit resulted in her being moved from a men’s facility to a woman’s facility. It also resulted in her receiving necessary gender affirming care. Earlier this month Ms. Lotusflower received her second gender reassignment surgery.
The ACLU-WA has also received a number of complaints from incarcerated individuals in the custody of Washington Corrections Center for Women (WCCW) regarding gender identity discrimination, targeting, and harassment of transgender women by DOC staff, including DOC leadership at the facility. These complaints include allegations that transgender women are expressly targeted by DOC staff and subject to disparate treatment on the basis of their gender identity. The ACLU-WA sent advocacy letters addressing these allegations and reminding the DOC of WCCW’s legal obligations to provide equitable treatment of transgender, intersex, and nonbinary people under the United States and Washington State Constitutions and the Prison Rape Elimination Act. The letters reminded them of their obligations to provide religious accommodations pursuant to the RLUIPA and to investigate their practices.
Punishing Poverty
Kitcheon v. City of Seattle
Many municipalities across the state choose to criminalize homelessness by creating and enforcing bans on camping or sitting and lying down in public spaces. These bans on being unhoused in public, especially when shelters are at capacity and housing is limited or nonexistent, constitute cruel punishment. They criminalize actions that individuals who cannot afford brick-and-mortar housing, and who have no other choice or alternatives must take to protect themselves from the elements, safeguard their privacy, and keep their personal belongings secure. Furthermore, municipalities often enforce their camping bans by conducting sweeps, where government personnel and police open the doors of tents and temporary shelters, search through personal possessions, remove belongings, and discard entire homes and property into garbage trucks – all without a warrant. We defeated the City of Seattle’s motion for summary judgment and the Court partially granted the ACLU-WA’s motion for summary judgment, holding that the City’s “obstruction sweeps” are facially unconstitutional violating unhoused individual’s privacy rights protected by Const. art. I § 3. The Court also found that the “obstruction sweeps” violate Const. art. I § 14 and subject the unhoused to cruel punishment where they are swept without notice and offer of shelter. This matter is currently before Division I of the Court of Appeals.
Potter v. City of Lacey
The ACLU-WA filed an amicus brief in Potter v. City of Lacey¸ a case before the Washington Supreme Court. Jack Potter lives in a trailer and had been allowed by the City of Lacey to park his truck and trailer in a city parking lot until the city council passed an ordinance that prohibits “recreational” vehicles to park for more than 4 hours a day in any place in the city, subject to impoundment if parked over 4 hours. Potter was evicted from the city lot and sued the City of Lacey, claiming his rights to travel and reside where he chose and against cruel and unusual punishment were violated because the ordinance did not allow sufficient time for him to sleep in his vehicular home. The Washington Supreme Court will now determine whether there is a state constitutional right to intrastate travel and, if so, whether Potter’s right was violated. The ACLU-WA’s brief raised additional issues including whether the Lacey ordinance allowing impoundment for parking more than 4 hours violates the state constitution’s excessive fines clause, and whether aspects of the ordinance violate state constitutional rights against discrimination based on poverty.
Policing
Snaza v. State of Washington
A group of seven sheriffs and county commissioners challenged the constitutionality of the Washington state law regulating the use of tear gas, arguing that it infringes on a sheriff’s core functions as defined by Article XI, Section 5 of the Washington State Constitution. The ACLU-WA filed an amicus brief in Washington Supreme Court highlighting the history of the law, the harmful effects of tear gas (in general), and the chilling effects of the use of tear gas on citizens’ free expression of their First and Fourth Amendment rights. We argued that the plain language of Article XI, Section 5 allows for some restrictions on a sheriff’s power and that sheriffs do not retain expansive authority to use tear gas in all situations without oversight. We outlined how the unique nature of tear gas can impact an entire community in dangerous ways; therefore, some regulation is necessary and in line with the Washington Constitution as a whole. The brief was co-signed by the Washington Coalition for Police Accountability.
The Court ruled that the limitation on law enforcement’s independence regarding use of tear gas was lawful — except for where it infringed on elected sheriffs in noncharter counties. The opinion upholds the limitation on the Seattle Police Department’s and King County Sheriff’s use of tear gas — the two law enforcement agencies that have a significant history of excessive and unwarranted use of tear gas against protesters.
United States of America v. City of Seattle
In 2010, the ACLU-WA, along with 35 community organizations, called on the U.S. Department of Justice to investigate the Seattle Police Department (SPD) regarding egregious incidents of excessive force against community members of color. As a result of that investigation, a lawsuit began, which resulted in a Consent Decree that was put in place to ensure that SPD engaged in constitutional policing. In April 2023, the United States and the City of Seattle (collectively “the Parties”) asked the Court to terminate the Consent Decree, which would end the Court’s oversight of discriminatory policing, and adopt a Transition Agreement, which would focus on two remaining issues — the use of force within the context of crowd control and officer accountability.
Since the ACLU-WA was one of the organizations that originally requested the investigation, we filed an amicus brief refuting the claim that SPD is a “transformed organization”, citing clear racial disparities that still plague the Department. Our brief explicitly highlighted that many of the significant issues that led to the Consent Decree are still present and as such, if the Consent Decree is terminated, it should not be celebrated as a success, but instead serve as a call to action for the City and SPD to continue the perpetual work of constitutional policing and for the civilian oversight bodies and community groups to continue oversight to ensure the Department is being held accountable. Ultimately, the Court dissolved many portions of the Consent Decree except for the portions that govern use of force, racially biased policing, and crowd control. Although the Court declared SPD a changed institution, within days of its declaration, SPD killed an international student and mocked her death, and it became public that SPD had a mock tombstone for Damarius Butts — a young Black man killed by SPD — on display on their property.
Tucson v. City of Seattle
The ACLU-WA filed an amicus brief in the Ninth Circuit in a Black Lives Matter protest case – Tucson v. City of Seattle. Our amicus brief supports the trial court’s finding that the Seattle Police Department (SPD) violated the constitutional rights of the Plaintiff Protesters when they arrested and jailed them for chalking messages critical of SPD on the side of the temporary wall erected during the Black Lives Matter uprising. The Western District of Washington granted an injunction in the Plaintiff Protesters’ favor staying a municipal ordinance prohibiting graffiti, on the basis that the ordinance may be facially unconstitutional and SPD’s use of it against the Plaintiff Protesters likely infringed on their First Amendment rights to free speech. Discovery requests in the case resulted in the bodycam footage, recently released, showing the officers as they emerged from the break room callously displaying the mock tombstone of Damarius Butts, and a Trump Flag, among other items. Our brief focused on SPD’s long history of biased policing and resistance to accountability and retaliation against those who speak out against the police. Our brief then sets forth how SPD exploits the ordinance to target protesters based on viewpoint discrimination: Choosing to enforce the graffiti ordinance against protesters critical of SPD – while on the other hand allowing the same kind of graffiti (chalk and charcoal) when its content is favorable to SPD.
Youth
MG v. Yakima School District
The ACLU-WA, along with community partners at The Korematsu Center and Disability Rights Washington, filed an amicus brief before the Washington Supreme Court arguing that Article IX, Section 1 of the Washington Constitution ensures that all children receive a quality education in Washington. A Latinx high schooler (M.G.) was suspended from his neighborhood school for alleged “gang activity” with no plan to return him to school. The original suspension was for 10 days, but morphed into a de facto expulsion, keeping M.G. out of school for his entire high school education. During this time, the Yakima School District placed him in an online program he could not access for a variety of reasons. Despite knowing that that M.G. could not access the program, the District did nothing to ensure he received an education while extending his suspension indefinitely, so M.G. completed only a handful of classes and not enough credits to graduate over the course of his 4-year suspension. We argued that this de facto expulsion was a clear violation of M.G.’s due process rights and his constitutional right to access an education. We also included research about how exclusionary discipline practices impact children of color at disproportionate rates and do not make schools safer; rather, vague, exclusionary discipline practices that fail to adhere to the law breed distrust in school communities and make them less productive and safe.
State of Washington v. Reynolds
The ACLU-WA challenged the use of juvenile felony strikes in calculation of life sentence under the Persistent Offender Accountability Act. The Washington Supreme Court rejected our argument and held that juvenile points can be part of the three strikes calculation. The Court also seemed to call for a constitutional challenge to the lawfulness of Washington’s three strike law. The ACLU-WA with Korematsu Center, King County Department of Public Defense, Washington Association of Criminal Defense Lawyers, and Washington Defender Association filed an amicus memorandum in support of review.
