By Jay Stanley, Senior Policy Analyst

A group of over 450 public health experts signed a public letter today warning that widespread transmission of the Covid-19 coronavirus within the United States is “inevitable.” Their letter urges government decisionmakers to enact policies that will have the best chance of minimizing the effects of the virus: those based strictly on the best available scientific information, and those that are imposed in a fair and equitable fashion.

It is essential that all government officials follow these experts’ recommendations to help ensure a response plan that protects the health, safety, and civil liberties of all.

At the ACLU, we have always recognized that, during a disease outbreak, individual rights must sometimes give way to the greater good. After all, when it comes to disease, we are not just individuals but also one big bio-mass. That is why people can sometimes be deprived of their liberty through quarantine, for example. And this is as it should be, provided — and this is a crucial and sometimes violated condition — that the science supports the effectiveness and proportionality of measures such as quarantine. And even if a quarantine is imposed, people do not lose their due process rights, which at a minimum require that they be able to challenge their quarantine.

The public health experts remind us in their letter that there is a flip side to the limits on liberty, however. Just as a disease cares little for our notions of individualism — as crucial as they are to our happiness in other contexts — neither does it care about other artifacts of our individualistic society, such as differences in wealth, status, ethnicity, or immigration status. If the authorities want to be effective in limiting the transmission of this virus, they will need to pay particular attention to the most vulnerable people in our society.

A disease does not care who has health insurance, for example. You may have the best insurance in the world, but if 30 million others who are part of your bio-mass are not getting tested or treated because they lack insurance, that will increase your risk. Similarly, if members of immigrant communities fear they’re going to fall into the hands of an ICE officer if they seek treatment, that is a public health problem for all of us. A disease does not care who is undocumented.

In their letter, the public health experts call for officials to work with insurance companies to make sure that lack of insurance and high costs do not become a barrier to testing and treatment. They call for health care facilities to be declared as “immigration enforcement-free zones” — a step that has been taken before during hurricanes and other emergencies. And they call for extra help to be provided to under-resourced front-line hospitals and community health centers, which need more help than wealthy institutions in acquiring materials and equipment.

The experts draw attention to the need to support minimum-wage workers and others who live on the economic margins, cannot telecommute, and cannot afford to lose their job. While an office worker who is starting to feel ill may be able to self-isolate, someone in a more precarious situation may calculate the different risks they face in their life and conclude their only option is to hide their condition and head to work. A disease does not care whose employers offer good sick leave.

The experts also stress the importance of the free flow of information, stressing that “honest, transparent and timely reporting of developments will be crucial to maintaining public trust and cooperation.” Political leaders need to scrupulously ensure that their public messages are accurate and guided by science. There is a sad history of responses to emergencies that are hindered by politics, including China’s response to the SARS outbreak, China’s attempts to repress information about this outbreak, and, as millions of viewers have seen in the recent HBO series, the Soviet government’s response to the Chernobyl disaster. Open government is effective government.

Finally, the experts echo some of the longstanding lessons of their field: Voluntary self-isolation measures are more likely to induce cooperation — and therefore be effective — than coercive measures. Mandatory restrictions such as quarantines and travel bans “can be effective only under specific circumstances” and “must be guided by science, with appropriate protection of the rights of those impacted.” Those rights include due process rights to appeal confinement and the right to legal counsel. While leaders in outbreaks can be tempted to impose draconian measures as a show of strength, the letter’s signers also remind us that a disease also does not care how tough a leader looks.

The ACLU will be watching closely to make sure the government heeds these experts’ recommendations, and that its response is ​scientifically justified and no more intrusive on civil liberties than absolutely necessary.

By Jeffery Robinson, ACLU Deputy Legal Director and Director of the Trone Center for Justice and Equality

Black History Month is meant to be a celebration of the achievements of Black Americans, in spite of our country’s history of blatant, intentional racism. Despite that intention, the American narrative surrounding the enslaving of Black Americans has always attempted to rewrite our past, generating a kinder, gentler image of slavery.

President Trump and his appointees are the embodiment of that attempt to rewrite Black history. Recently, President Trump and his appointee, Philadelphia U. S. Attorney William McSwain, mocked the history that serves as the foundation for Black History Month. While a kinder interpretation of their actions might say that their understanding of past and current U.S. history is limited, their distortion of Black history during this month brings to mind an Orwellian warning — who controls the past controls the future, and who controls the present controls the past. 

For example, U.S. Attorney McSwain spoke this month in defense of the Trump administration’s anti-immigrant policies. During his remarks to about 500 people, McSwain compared so-called sanctuary cities, which have policies designed to protect immigrant communities, to the Southern secessionists who enslaved Black Americans:

“What an amazing concept – one that would have elated those who opposed the desegregation of lunch counters in the Deep South, or those who told Rosa Parks to go to the back of the bus, or those who stood in the schoolhouse doorway to prevent African American children from entering. 

And this concept would have absolutely thrilled Southern slave owners. A sanctuary from federal law, where they could continue their practice of human bondage … The secessionists who defied federal authority during our nation’s Civil War are gone but not forgotten. They did not fight in vain. No, their spirit lives on, right here in Philadelphia, in the Cradle of Liberty. Their spirit lives on in the hearts and minds of those who declare Philadelphia a ‘sanctuary city.’”

McSwain is attempting to compare the slaveholders who defied federal authorities when they seceded from the Union to local governments that decline to collaborate with federal immigration authorities in the deportation and detention of their community members. But McSwain’s focus on “obeying the law” crumbles under even a minimum amount of scrutiny.

“Obeying the law” leaves out the fact that slavery was legal in America in both colonial and post-Constitutional days for almost a quarter millennium – 246 years. To those who say America did not begin until the Constitution was ratified, realize that America had a chance to reject the colonial notion of slavery. Instead, our founding fathers doubled down and gave specific protections to slave owners in the Constitution. Separate but equal was law in America for 89 years after the civil war. Those who opposed the desegregation of lunch counters weren’t mad at a social convention that prevented them from living regular life. They protested the fact that it was statutorily legal to segregate lunch counters under federal law for decades – just as it was legal to segregate travel, education, and all other forms of Black existence.

McSwain’s logic sees no difference between the students who sat at lunch counters to protest segregation and those who wanted to disobey the law when segregation was outlawed. It finds no difference between those who worked with Harriet Tubman on the underground railroad and those who wanted to keep slavery once the war ended. This logic divorces morality from the analysis. It can, and has, justified atrocities. 

The commonality that links enslaving people with the immigrant justice movement is that in both cases people acted in defense of human dignity, against policies that rejected that dignity for people with Black and brown skin. McSwain’s faulty logic is a vile contradiction to the true principles of Black History Month. The man who appointed McSwain went even further. 

During the State of the Union speech at the very beginning of Black History Month, President Trump gave Rush Limbaugh the Medal of Freedom. That medal is intended to recognize an “especially meritorious contribution to (1) the security or national interests of the United States, or (2) world peace, or (3) cultural or other significant public or private endeavors.”

Trump said that Limbaugh fit that criteria because of his voice on important issues. A few quotes from that same voice include:

• “Holocaust? Ninety Million Indians? Only four million left? They have all the casinos — what’s to complain about?”
• “The NAACP should have riot rehearsal. They should get a liquor store and practice robberies.”
• “If any race of people should not have guilt about slavery, it’s Caucasians.”
• “The NFL all too often looks like a game between the Bloods and the Crips without weapons. There, I said it.”
• “They are 12 percent of the population. Who the hell cares?”

Honoring Black contributions to America — the foundation of Black History Month — is completely inconsistent with honoring Rush Limbaugh for his racist rhetoric. 

Limbaugh and Trump are singing from the same hymnal. To Limbaugh, Black NFL players are similar to street gangs like the Bloods and Crips, to Trump they are “sons of bitches.” Trump says his ancestors tamed a continent, won’t apologize for America, and Limbaugh agrees, saying Caucasians are guilt-free for enslaving Africans. Limbaugh thinks that the NAACP, Rosa Parks’ employer, should get a liquor store and practice robberies, while Trump bemoans the “rapists, drug dealers and murderers” and “shithole countries” populated by Black and brown people. 

Make no mistake, Limbaugh, McSwain, and Trump are all singing the same tune. It is not the Black National Anthem, “Lift Every Voice and Sing,” but rather an ode to hateful rhetoric that contradicts the very foundation of Black History Month.

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

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.