Happy Constitution Day!

Today is Constitution Day. 225 years ago, in 1887, 39 delegates signed the U.S. Constitution and kicked off the ratification process for the document that shaped America. Today is a big day for us civil libertarians.

 This blog post is by Susan Herman, National ACLU President, and it originally appeared on the National ACLU's Blog of Rights. 

September 17 is Constitution Day, and here’s a suggestion for how you might celebrate.

Gather some patriots -- cakes and ale and three-cornered hats optional -- and as a party game, see if your guests can answer some basic questions about the Constitution from a 1997 poll commissioned by the National Constitution Center. For example,

  • What are the three branches of government?
  • How many senators are there?
  • What are the four rights guaranteed by the First Amendment?
  • Does the Constitution establish the United States as a Christian nation? 

Do these questions seem easy to you, readers of the ACLU Blog of Rights?

In this first comprehensive survey of constitutional knowledge, it turned out that although most Americans (over three-quarters) say that they are very proud of our Constitution, only five percent could accurately answer ten basic questions, like those above, about its contents. Sixty-two percent couldn’t name the three branches of the federal government (Legislature, Executive, Judiciary) and one third couldn’t name even one branch; over half did not know the number of senators (100); only six percent could name “the four rights” guaranteed by the First Amendment (free exercise of religion, freedom of speech, freedom of the press, and freedom of peaceable assembly and the right to petition for redress of grievances – or is that really five rights?) and one quarter couldn’t name any; one sixth incorrectly believed that the Constitution established the United States as a Christian nation.

Why do Americans know so little about the Constitution they claim to revere? I’ll offer two explanations. First, the fact that the Constitution was intentionally made so difficult to amend (in Article V, to answer another question) means that we don’t tend to actively engage with its provisions because we don’t get to vote on them. The Constitution has been amended only 27 times since 1787. This stability is a boon for rights, which are protected against trends, panic, or majority self-interest. But the down side of placing the Constitution on a pedestal, out of easy reach, is that people don’t feel a real sense of ownership of this document even though it is supposedly by and for “We, the People.”

A second explanation for widespread ignorance about the Constitution would be that the schools are not doing an effective job of teaching it. In 2004, Congress sought to improve this situation by declaring that every September 17, on the anniversary of the signing of the Constitution, each school that accepts federal funds must offer educational programming about the Constitution.

The Constitution Center and various other providers offer Constitution Day curricular suggestions for exploring constitutional history and our founding documents, a very important enterprise. But I’m thinking that the ACLU, through its nationwide affiliates, is ideally situated to offer students some more contemporary and maybe more-engaging lessons about what the Constitution means to us and to them today. Who better to explain the real significance of the Constitution than the folks who defend it?

Stay tuned while the ACLU National Communications Department explores this new frontier, and please do share any of your own ideas or experiences. And if you want to give the Constitution a birthday present, join or rededicate yourself to supporting its defenders.

The Litterer and the Unwanted Thing

If someone on the street hands you something you don’t want – not something dangerous or disgusting, just something unwanted – you still throw it away, right? You took it, and you are now responsible to walk it a few steps to the trash or to stuff it in a pocket to throw away later. You don’t get a free pass to chuck the thing on the sidewalk simply because you didn’t want it in the first place.

You took it. Even if you wish you hadn’t taken it, the unwanted thing is now yours. And if you throw it on the ground, the buck stops with you, the litterer.

Clark County recently reversed this common sense idea, punishing the people who hand out possibly unwanted things instead of the people who are actually littering. The new law is intended to target handbillers on the Strip who hand out coupons or business information to pedestrians, but applies to anyone handing out material anywhere in unincorporated Clark County. Under the new law, people handing out material are responsible for any of their material taken and dropped within a 25-foot radius of where they stand, and they could be punished with a $1,000 fine and up to six months in jail.

That’s right; the fine and jail time are not for the litterers. Pedestrians who take information that is handed to them have a 25-foot window to decide if they actually want it. If they don’t, they can just toss it on the ground, and the person who gave it to them has to pick it up.

One justification is that because the handbillers are handing out “trash,” they should be the ones responsible. I say if someone tries to hand me actual trash and I take it, it’s my responsibility to see that trash to a garbage can.

This would be like me throwing my junk mail in the street instead of bringing it inside and recycling it - and also then expecting that the mailers get punished for my littering, as long as I toss their “trash” near my mailbox.

"There's a general principle in law that everyone can understand,” Allen Lichtenstein, ACLU of Nevada General Counsel, told Fox5 News. “You're responsible for your behavior, you're not responsible for someone else's behavior.”

Now that seems like common sense to me.

I’ve Got A Bone to Pick with K-9 Units

Have our civil liberties gone to the dogs? I think so.

Like many other Americans, I enjoy the company of my dogs and think dogs are wonderful companion animals. Our dogs have many functions in todays’ society and play an important role in peoples’ lives as therapy animals, protectors, service providers, and friends.

Dogs also help law enforcement as part of K-9 units, alerting their human partners to illegal items or substances that officers might not otherwise smell, see, or hear. The U.S. Supreme Court has ruled that a drug dog's alert is enough to establish probable cause for a warrantless search of a vehicle. In other words, based solely on the dog’s alert, an officer then can search a car or other property without a search warrant and can seize personal property such as cash or jewelry whether they actually find drugs.

On June 26, 2012, a group of Nevada Highway Patrol (NHP) troopers and a retired police sergeant filed a racketeering complaint against the NHP and Las Vegas Metropolitan Police in U.S. District Court. The complaint alleges that after a K-9 program was approved to target drug runners on Nevada's highways, a Nevada Highway Patrol Commander intentionally trained the dogs to provide false alerts for the presence of drugs.

In 2010, University of California, Davis studied 18 drug sniffing police dogs and their handlers. The study found that K-9 teams searching for drug scents incorrectly “‘alerted,’ or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.” In early 2011, the Chicago Tribune published a three year study of drug searches by drug sniffing dogs. According to the study, drug sniffing dogs correctly detected the presence or absence of drugs 44% of the time. That percentage dropped to 27% when the driver being searched was Hispanic.

When a dog’s alert is being used as reasonable grounds for a search, allowing officers to sidestep the need for a search warrant, this room for error – either intentionally incorrect training or unintential canine alerts – violates the Fourth Amendment’s protection against unreasonable search and seizure. There is no standard level of training involved for the dogs and their handlers, and human error must be factored into the equation.

I love dogs, but I believe that handing the Fourth Amendment and my civil liberties over to mans’ best friend is just doggone wrong.

Charles's Reason

Rebooting the "What's Your Reason?" blog series, our summer legal intern Charles Smith talks about why he supports the ACLU. There are many reasons to support the ACLU - this is Charles's reason.

The ACLU is symbolized in its logo by the well-known crowned head of the Statue of Liberty. When I imagine Lady Liberty, I think of her facing out to sea welcoming immigrants into the new land that will become their home. The ACLU asks Lady Liberty to turn around and shine her light over the land she has welcomed so many into. The light from her torch reassures us that liberty will not be lost.

I decided to attend law school to become a better advocate for social and economic justice. Before law school, I worked as a community organizer on the collapse of the housing bubble. Of the many strategies we considered and attempted to address the community’s concerns, litigation was always a last resort. Lawsuits could be time consuming and the results were out of our control. However, as various reforms were passed, litigation seemed to be the only remaining option. I wanted to become more familiar with applying legal strategy toward social change.

Currently, the ACLU is the best example of using strong legal strategy and education to influence a wide variety of issues. When I visited Las Vegas last winter, my family was touched by a police use-of-force issue in the Las Vegas valley. I saw the work that the ACLU of Nevada was doing in response to police use-of-force problems, and followed its petition to the Department of Justice asking for an investigation of the Las Vegas Metropolitan Police Department. As a legal intern, I have had the opportunity to work substantively on the issue that drove me here, helping lawyers draft policy recommendations to Metro and working on the use-of-force community forums. There is additional work to be done, and I know the ACLU of Nevada will stay vigilant until the public can feel secure in all interactions with the police.

The strength of the ACLU as an organization is that it is not driven by ideology but objective principle. If an issue is ripe and needs to be challenged, the ACLU will step forward, regardless of the popularity of the issues or the people involved. With the help of the ACLU, liberty will continue to shed her light on all people in risk of having their liberties pushed into the shadows.

Which is why I support and will continue to support the ACLU.

Automated License Plate Recognition Helps Law Enforcement but Endangers Public Privacy

The Henderson, Nevada, Police Department implemented automated license plate recognition (ALPR) in three patrol cars in May 2011 and the next month bragged that a stolen vehicle had been spotted and its driver arrested through use of the technology—which cost $160,000 to be installed in nine cars. Impressive technology, right? (Although it should be, with that pricetag!)

ALPR is maybe a little too impressive. ALPR systems can work night and day, and scan as many as hundreds of license plates per minute on both other moving vehicles and parked vehicles. APLR systems can be installed in cars, but also in places such as light poles and on bridges. So far, so good, especially when best and most used, even only used, to locate stolen vehicles and criminal suspects in their own vehicles.

But ALPR systems are used to collect and store information not only on people suspected of crimes, but on every single motorist, and are increasingly becoming a tool for mass routine location tracking and surveillance. APLR-generated information on all of us can be routinely collected and stored, even for years. Local and federal law enforcement agencies are rapidly building systems for pooling stored license plate location information across jurisdictions and regions. If current trends continue, we will eventually see the construction of a national database.

The deployment of ALPR systems is increasingly rapidly, and we could quickly reach a point where the devices are in operation on every block, and the data that they record will become equivalent to monitoring every vehicle with a GPS tracker. That level of tracking of individuals’ movements is a significant invasion of privacy that can reveal many facts about our lives, including what friends, doctors, protests, political events, or places of worship that we visit. This is alarming enough in the hands of law enforcement, but if such databases are subject to state and/or federal open records laws, other individuals, corporations, government agencies, or other organizations also could get access to when and where you are driving over sustained periods of time.

Although this fact has been increasingly ignored, forgotten or never learned since September 11, 2001, and the resulting USA PATRIOT Act (which is rife with civil liberties abuses), it is a core principle of U.S. democracy that the government does not invade people’s privacy by collecting information about citizens’ innocent activities just in case they do something wrong. More and more Big Brother surveillance by government must not become the “new normal” in American society.

Clear regulations must be put in place to keep authorities from tracking our movements on a massive scale. State and federal law should prohibit ALPR devices from storing data where there is not match to an offender list or other evidence of wrongdoing. Because police can use this tool for legitimate law enforcement purposes without storing data on the rest of us, adequate privacy protections will not interfere with legitimate law enforcement uses of this technology.


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