Spring 2023 Legal Updates

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The ACLU-WA has been busy protecting civil rights and civil liberties in the courts. Here are updates for cases that have had recent movement.

Challenging Racial Bias/Discrimination in Jury Selection

PRP of Rhone
A return to the Washington Supreme Court resulted in a major step forward for racial equity in the criminal legal system. Mr. Rhone, in a 2009 appeal based on concerns of discrimination in jury selection, argued for the adoption of a bright-line rule that whenever the State uses a preemptory challenge to strike the only or last remaining potential juror of a knowable racial group, that action alone is sufficient to establish discrimination. The Supreme Court denied his request, but ultimately adopted the rule he proposed, which has been expanded upon in subsequent cases. He went before the Supreme Court once again, arguing for relief. ACLU-WA filed an amicus brief in his original appeal in 2009 and we reaffirmed our advocacy with this updated amicus. After argument, the Washington State Supreme Court ruled in favor of Rhone, noting that its understanding of race discrimination in jury selection has evolved over the years and that it would be a manifest injustice to refuse to provide Rhone — who first made the argument — with the relief that the Court ultimately found constitutionally required in a later case. His convictions were vacated and the Court remanded for further proceedings.


Demanding Humane Jail Conditions

We are continuing to protect the religious freedoms of incarcerated individuals:

ACLU-WA received a complaint from a Jewish individual currently incarcerated at the Okanogan County Jail regarding ongoing religious discrimination, in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The alleged violations include refusal to provide kosher meals. We sent an advocacy letter to raise concerns and request policies and trainings for religious accommodations for people who are incarcerated.

Washington v. The GEO Group 

The GEO Group paid immigrant detainees at the Northwest Detention Center $1 per day for work that kept the for-profit private prison operational. The State of Washington and a class of immigration detainees sued The GEO Group, requesting that the detainees be paid the state minimum wage. A jury agreed and assessed millions of dollars of damages. GEO appealed. The Ninth Circuit certified questions of Washington state law to the Washington Supreme Court. Questions included whether detainees could be deemed employees under Washington law and whether similarly situated individuals working in a private lockdown facility would also be deemed employees. The ACLU-WA, the ACLU National Prison Project and the National Immigrant Justice Center filed an amicus brief supporting the State.  

Criminal Legal System Advocacy

USA v. J Holcomb

The ACLU-WA filed an amicus brief in a criminal case resulting from a police search that went far beyond what a judge authorized in a search warrant. The charge was based on material the police found in searching a person’s home computer, which was out of the scope authorized by a judge. The brief discusses the importance of the privacy rights people have in their home computers. The federal district court initially granted the motion to suppress the evidence, recognizing that the constitutional requirements had been violated, but then on the government’s motion to reconsider found that the “good faith” exception applied and precluded suppression.


Police Accountability

State v Sunnyside

With Ruiz & Smart, LLP, the ACLU-WA filed an amicus brief in support of the State Attorney General’s office suing the City of Sunnyside because of their so-called “crime free rental housing program.” The program repeatedly served as a pretext for police and landlords to force tenants out of their homes. In some cases, police took action within a day or two of an unproven allegation and without any of the usual safeguards for eviction. The program disproportionally harmed Latinx families and families headed by women. Our brief discusses the history of racially biased policing and the history of housing discrimination in connection with this program. The case has been argued and we are waiting for an opinion.

Snaza v. State of Washington

A group of seven sheriffs and county commissioners challenged the constitutionality of a law restricting their authority to use tear gas in all situations without oversight. The ACLU-WA and the Washington Coalition for Police Accountability filed an amicus brief defending the restrictions. We highlighted the history of the law (the result of advocacy following protests in the wake of George Floyd’s murder), 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 are awaiting a ruling in the matter.


Punishing Poverty

Kitcheon v. City of Seattle

The ACLU-WA has continued to litigate our case against the City of Seattle for their “encampment abatement program” – policies and practices that we claim violate the privacy protections of the state constitution and other laws. We defeated the City’s motion to dismiss. The Judge agreed that the City’s practice of threatening unhoused Seattleites with arrest for camping when there is limited shelter or housing available is a valid cruel punishment claim under the Washington Constitution. The case is currently set for trial in September 2023. Our cooperating attorneys are Bree Blackhorse of Kilpatrick Townsend & Stockton and John Roberts, Tamara Lemmon, Ava Munson, Alexander K. Brehan, Stephanie Cheng, Malavika Lobo, and Brittany Moore of Wilson Sonsini Goodrich & Rosati.

State v. Meredith

With the King County Department of Public Defense and Washington Defender Association, the ACLU-WA supported a challenge to the practice of policing public transit. State law authorized policed officers undertaking fare enforcement to conduct suspicionless, warrantless seizures of any person using public transportation. We argued this violates our state constitution and disproportionately impacts communities of color, specifically Black riders in King County, and low-income individuals, many of whom have no alternative but to use public transportation. The court agreed and our amicus brief was cited in the Court’s ruling.


Freedom of Information  

Human Rights Defense Commission (HRDC) v. Uttecht

The ACLU-WA filed an amicus brief in response to the Department of Corrections (DOC) prohibiting prisoners from possessing all “case law.” Under this policy, from 2018-2020, the Coyote Ridge Corrections Center rejected all incoming mail to prisoners containing information about case law from any state or federal court and rejected legal articles mentioning cases. Access to justice and resources while incarcerated is of paramount importance not only to those who are incarcerated but anyone who may want to provide those resources directly, such as the HRDC, law firms, legal search engines, and individuals. As Black and brown people experience overpolicing and therefore are incarcerated at disproportionately higher rates than white individuals, DOC’s policies disproportionately affect marginalized communities. Further, gaps in providing counsel to people who are in the post-direct appeal stage or those who need to address other legal issues while incarcerated reinforce the harms that result from this policy.


Free Speech

In re Dependency of A.M.F.

The ACLU-WA submitted an amicus brief in a case where a mother’s invocation of the 5th Amendment led the dependency court to infer that she was actively using drugs and ultimately terminate her parental rights. We argued that drawing a negative inference from the invocation of the 5th Amendment in dependency puts the parent in an untenable position, and that the impact of losing one’s children is far greater than the impact in other areas (such as employment) where courts have ruled that it is impermissible for the state to draw a negative inference. The ruling is pending.



Wetherell v. Alaska Airlines

With the national ACLU, the ACLU-WA and the Washington Human Rights Commission pursued a complaint on behalf of Justin Wetherell alleging Alaska Airlines’ rigid uniform policy violates Washington’s Law Against Discrimination. Justin is an Alaska Airlines flight-attendant and flight-attendant instructor. Justin’s gender identity is nonbinary and their gender expression is fluid. Last September, the Human Rights Commission issued a reasonable cause finding of discrimination. Then, in December, the state Attorney General filed an administrative proceeding challenging the uniform and grooming policies. The case resulted in Alaska Airlines adopting a broad uniform policy that ensures all feel welcome and safe bringing their full selves on a flight and to work, regardless of their gender identity or gender expression — leading the way to make the airline industry more diverse, equitable and inclusive.


Does v. Washington Department of Corrections

The ACLU-WA sued the Washington Department of Corrections on behalf of a group of people who are currently and formerly incarcerated to protect their private data. A preliminary injunction has been granted and a bill impacting the litigation was passed. The resulting settlement protects the privacy of incarcerated people and compels Corrections to create training and procedures to protect privacy rights in the future. Cooperating counsel are Danny Waxwing and Ethan Frenchman of Disability Rights Washington; Katherine Forster of Munger Tolles & Olson; and Joe Schaeffer of MacDonald Hoague & Bayless.


The Rights of Young People

State v J.W.M.

The ACLU-WA joined an amicus brief with the Korematsu Center, Choose 180, Creative Justice, King County Department of Public Defense, and TeamChild. The brief discusses harm caused by the “adultification bias” of Black youth versus white youth (through which Black children are deprived of the benefit of being seen and treated as children), as well as harm done by prolonged incarceration in juvenile prison. In February, the Court ruled unanimously that it was not lawful to impose a “manifest injustice” disposition, which results in a prolonged period of incarceration, on JWM based on his “need for services,” without proof that he was a danger to society without services or treatment; “Courts do not incarcerate children because it is good for them.” The Court said that charged but unproven allegations cannot be used to increase the length of sentence. The Court also referred to points from the amicus brief about adultification bias and the harm incarceration causes to young people as “important considerations” in juvenile sentencing, but declined to adopt these as new legal standards because they were only raised by amici and not the parties.

State v. Reynolds

The ACLU-WA, with the Korematsu Center, King County Department of Public Defense, Washington Association of Criminal Defense Lawyers, and Washington Defender Association, filed an amicus memorandum supporting a challenge to including juvenile strikes in the imposition of a life sentence under Washington’s three strikes law.


Indigenous Justice

Brackeen v. Haaland 

The national ACLU and the ACLUs of Washington, NorCal, Alaska, Arizona, Maine, Montana, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Utah filed an amicus brief with the U.S. Supreme Court urging the court to uphold the constitutionality of the Indian Child Welfare Act (ICWA). The importance of this case cannot be overstated — not only could it have overturned over 40 years of crucial protections for Native children and families, but it could have opened the doors to a vast array of further challenges to tribal sovereignty, self-determination, and the existence of tribes. The Supreme Court issued a landmark victory for tribal sovereignty by rejecting all the constitutional challenges to ICWA. As Justice Gorsuch’s concurrence explains, this is a critical law designed to halt horrific government practices that had torn Native families apart and intentionally undermined tribal sovereignty.


Voting Rights

Portugal v. Franklin County

The ACLU-WA successfully supported the defense of the Washington Voting Rights Act (WVRA), which was enacted to protect the voting rights of historically marginalized communities. We filed an amicus brief in the Washington Supreme Court detailing the history of discrimination in voting and political participation in Washington, and the limitations of Section 2 Federal Voting Rights Act (FVRA) claims. The brief includes examples of our prior litigation in Pasco and Yakima. It further examines the historic and ongoing exclusion of racial and language minority voters, outlines the limits of the FVRA to provide relief, and details the impetus to draft and advocate for the passage of WVRA. Finally, it provides success stories under the WVRA, including providing the only pathway to voluntary abandonment of at-large voting in favor of district-based voting. In a June 2023 opinion, the Washington Supreme Court affirmed the constitutionality of the WVRA.

<-Back to Washington in Action Spring 2023 Newsletter - Table of Contents