John W. Whitehead, Constitutional Attorney

WASHINGTON, D.C. — In refusing to hear a legal challenge to the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA), the United States Supreme Court has affirmed that the President and the U.S. military can arrest and indefinitely detain individuals, including American citizens.

By denying without comment a petition for review in Hedges v. Obama, the high court not only passed up an opportunity to overturn its 1944 Korematsu v. United States ruling allowing for the internment of Japanese-Americans in concentration camps, but also let stand a lower court ruling empowering the President to use “all necessary and appropriate force” to indefinitely detain persons associated with or “suspected” of aiding terrorist organizations. In weighing in on the case before the lower court, attorneys for The Rutherford Institute challenged the Obama administration’s claim that the NDAA does not apply to American citizens, arguing that the NDAA’s language is so unconstitutionally broad and vague as to open the door to arrests and indefinite detentions for speech and political activity that might be critical of the government.

“Once again, the U.S. Supreme Court has shown itself to be an advocate for the government, no matter how illegal its action, rather than a champion of the Constitution and, by extension, the American people,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.”

The NDAA 2012, the mammoth defense bill passed by Congress in 2011 and signed into law by President Obama, contains a provision allowing for the indefinite detention of those who “associate” or “substantially support” enemies of the U.S. such as terrorist groups. These terms, however, are not defined in the statute, and the government itself is unable to say who exactly is subject to indefinite detention based upon these terms, leaving them open to wide ranging interpretations which threaten those engaging in legitimate First Amendment activities.

Soon after the NDAA was enacted, a lawsuit was filed by citizens and non-citizen activists and journalists alleging that it violated their constitutional rights by threatening them with indefinite detention for engaging in protected speech, such as protesting American foreign policy or interviewing suspected terrorists for journalistic purposes. On September 12, 2012, U.S. District Judge Katherine Forrest of the Southern District Court of New York ruled in favor of the plaintiffs and placed a permanent injunction on the indefinite detention provision. However, President Obama appealed the decision to the Second Circuit Court of Appeals, which ruled in July 2013 that the journalists and activists did not have standing to challenge the detention provisions. In rationalizing its decision, the court stressed that there had been no history of enforcement against persons such as these plaintiffs (activists and journalists, but non-combatants), the statute is not aimed at persons like them, and there has been no specific threat by the government to apply the statute to them.

Critics of the NDAA had hoped that the U.S. Supreme Court would agree to hear the case and, in so doing, reverse its 1944 ruling in Korematsu v. United States, which concluded that the government’s need to ensure the safety of the country trumped personal liberties and allowed for the internment of Japanese-Americans during World War II.

LEGAL ACTION

Click Here to read The Rutherford Institute’s amicus brief in Hedges v. Obama

Warning against any effort to deprive parents of their fundamental right to be actively involved in their child’s educational experience, including access to school grounds, The Rutherford Institute has come to the defense of a Texas mother who has been banned from her children’s elementary school campus and threatened with arrest, allegedly because she was overheard using “inappropriate language” in a conversation with another parent. The mother denies using any inappropriate language. Pointing out that the trespass warning against Yvonne Garcia, whose two children, ages 7 and 11, attend Forbes Elementary School in San Antonio, Texas, is overreaching, egregious and unlawful, Rutherford Institute attorneys are demanding that school officials immediately reinstate Ms. Garcia’s right of access to the school grounds. Institute attorneys also point out that the school’s decision to deprive Ms. Garcia of access to her children while at school, even to drop off or pick up her children, without explanation or an opportunity to defend herself, flies in the face of longstanding recognition by the courts that parents have a liberty interest in the “care, custody, and control of their children.”

“Hate crime laws, anti-bullying statutes, zero tolerance policies, trespassing warnings—these policies may have started out with the best of intentions to make students and schools safer, but what they have accomplished is transforming the schools into quasi-prisons, microcosms of the emerging American police state,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “This is the danger of allowing government officials to prioritize so-called security needs over Americans’ constitutional rights: rather than pursuing rational policies that foster safer environments, they demand total compliance and advocate a totalitarian mindset which punishes any deviation whatsoever, no matter how insignificant.”

On Monday, December 9, 2013, when Yvonne Garcia arrived at Forbes Elementary School to pick up her children, she was confronted by police officers who were awaiting her arrival. The officers informed her that she was barred from entering the school because she had allegedly used “inappropriate language” while on campus the previous Friday. Ms. Garcia was also given a letter informing her that she is banned from being present on school grounds, even to drop off and pick up her children, or meet with school personnel about her children’s health and educational progress. The following day, Ms. Garcia was granted “limited permission” to access school grounds when “dropping off [her] children,” which requires her to drop off her children in an inaccessible and inconvenient area behind the school gym. In order to pick up her children, Ms. Garcia has to park her vehicle across the street from the school grounds and wait while her children are escorted to her vehicle by a school official. This arrangement requires that the Garcia children leave class 15 minutes early each day and wait for their escort in the principal’s office, publicly embarrassing and stigmatizing them to the other schoolchildren. The trespass order also prevents Ms. Garcia from being present at her son’s upcoming graduation ceremony.

Noting that the situation has become untenable and is causing the Garcia children great anxiety, to such an extent that one of the children has suffered increasing bouts of anxiety attacks, Rutherford Institute attorneys have requested a response from school officials by Monday, April 28, 2014.

An Illinois federal court has ruled that Chicago school officials did not violate the rights of a second-grade teacher who was charged with possessing weapons on school grounds after he displayed garden-variety tools such as wrenches, pliers and screwdrivers in his classroom as part of his second grade teaching curriculum that required a “tool discussion.” In granting a motion to dismiss the complaint in Douglas Bartlett v. City of Chicago School District #299, U.S. District Court Judge Robert Dow, Jr., held that school officials at Washington Irving Elementary School acted properly when they applied a definition of “weapons” contained in a student handbook to the actions of teacher Douglas Bartlett.

Attorneys for The Rutherford Institute filed the civil rights lawsuit in April 2013 on behalf of Bartlett, a 17-year veteran in the classroom, who was suspended without pay for four days on the grounds that his use of the tools as visual aids endangered his students, despite the fact that all potentially hazardous items were kept out of the students’ reach.

“In an age where public schools face an unprecedented number of real challenges in maintaining student discipline, and addressing threats of real violence, surely no one benefits from trumped up charges where no actual ‘weapons’ violation has occurred and no threat is posed to any member of the school community,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “This school district’s gross overreaction to a simple teaching demonstration on basic tools such as wrenches and pliers underscores exactly what is wrong with our nation’s schools. Education truly suffers when school administrators exhibit such poor judgment and common sense, especially when it comes to their zealous misapplication of misguided zero tolerance policies. However, what makes this case stand out from the rest is that this victim of zero tolerance policies run amok happens to be a veteran school teacher.”

Doug Bartlett teaches second graders at Washington Irving Elementary School in Chicago, Illinois. On August 8, 2011, Bartlett displayed several garden-variety tools he used around the classroom, including wrenches, screwdrivers, a box cutter, a 2.25” pocketknife, and pliers, as visual aids for a “tool discussion” which is required by the teaching curriculum. It is common for teachers to use such visual aids to help students retain their lessons. As he displayed the box cutter and pocketknife in particular, Bartlett specifically described the proper uses of these tools. None of the tools were made accessible to the students. When not in use, the tools were secured in a toolbox on a high shelf out of reach of the students.

On August 19, 2011, Bartlett received notice that he was under investigation for, among other things, “possessing, carrying, storing, or using a weapon,” and for negligently supervising children.  Bartlett subsequently received a four-day suspension without pay. In coming to Bartlett’s defense, Rutherford Institute attorneys filed a civil rights lawsuit, challenging the constitutionality of such disciplinary action against Bartlett as a direct violation of Bartlett’s Fourteenth Amendment right to due process. Institute attorneys also pointed out that Bartlett had no intent to use the tools as weapons, nor did he ever receive notice that using such tools in an educational manner could even be construed as using a weapon.

Affiliate attorney Dmitry N. Feofanov is assisting The Rutherford Institute with Bartlett’s case.

Click here to read the Illinois federal court ruling in Bartlett v. Chicago Sch. Distr

Click here to read The Rutherford Institute’s complaint in Bartlett v. Chicago Sch. Distr

Attorneys for The Rutherford Institute have asked a federal court to declare a New Jersey anti-bullying law unconstitutional in light of its chilling effect on students’ free speech rights. The Institute’s latest brief, which counters a move by the New Jersey Commissioner of Education to have the lawsuit dismissed, argues that the state’s enforcement of the anti-bullying act represents a violation of students’ rights under the First and Fourteenth Amendments to the U.S. Constitution and the New Jersey state constitution. Institute attorneys filed the First Amendment lawsuit in Lim v. Board of Education of the Borough of Tenafly in December 2013 on behalf of a 4^th grade boy who was punished under the act for truthfully stating that a fellow student had head lice.

“What school officials conveniently seem to keep forgetting is that students do not shed their constitutional rights at the schoolhouse gate,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “While we all want our schools to be safe, nurturing environments for our children, anti-bullying statutes—well-meaning as they may start out—are Orwellian in nature and inevitably run afoul of the Constitution’s protections for free speech and expression.”

In 2011, New Jersey amended its bullying law with sweeping reforms that significantly impacted student speech rights. Under the new law, the state created new “Anti-Bullying Specialist” positions in each district, who were responsible for identifying and reporting “harassment, intimidation or bullying” violations by students. Rutherford Institute attorneys argue that while the purpose of the law is admirable, the law’s scope is unconstitutionally broad and the language is too vague to give parents or students adequate notice about what statements will or will not be prohibited.

Highlighting the potential absurd applications of the law, Institute attorneys draw attention to an incident that took place in September 2011, when a 4^th grade boy was punished under the act for correctly stating that a fellow student had head lice. A few days after a note was sent home to the parents of a class of 4th grade students, warning them that one of the students had head lice, several students were sitting at a group table completing an assignment together. During the discussion, one student asked a female student why she had dyed her hair. After she failed to respond to the question, one young boy, L.L., correctly replied that she had done so because she was the student who had head lice. The female student complained to the teacher who in turn instructed L.L. to apologize, and the class lesson continued uninterrupted. The teacher then reported the incident to the school’s “Anti-Bullying Specialist,” who filled out a bullying report and informed the Superintendent about the incident. As a result of the finding, the student was forced to undergo a special sensitivity assignment, and the entire class was reminded about the need to be kind to each other, which further embarrassed the fourth grader. L.L.’s parents appealed the bullying determination first with the local school board, and then with the state Board of Education, both of which affirmed the decision.

Arguing that the statute punishes any speech deemed “hurtful,” even if factually true and non-disruptive, attorneys for The Rutherford Institute filed a First Amendment lawsuit in federal court, asking that the statute be struck down, and that students like L.L. not be penalized in accordance with the statute for exercising their constitutional rights. Affiliate attorney Mike Daily is assisting in the case.

WASHINGTON, D.C. — Challenging the practice by police of routinely searching cell phones of individuals who have been arrested, The Rutherford Institute has asked the U.S. Supreme Court to declare these warrantless cell phone searches an unconstitutional violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. Insisting that cell phone digital data represents the equivalent of bookshelves of an individual’s papers and record, and that police should not be allowed to rummage through this highly personal information without a warrant, Rutherford Institute attorneys have asked the Court to recognize that cell phones store an extraordinary amount of personal and private information that has historically been accorded a high degree of protection from government intrusion.

The Rutherford Institute’s amicus brief in United States v. Wurie is available at www.rutherford.org.

“Cell phones hold a place of central importance in modern day life, in large part because they contain a variety of personal information that users can access on the go. While this may make life more convenient, it can also pose a serious threat to our individual privacy when our cell phones end up in the hands of government officials lacking the knowledge or scruples to abide by the Fourth Amendment’s prohibition on unreasonable searches and seizures,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “The government has no business prying into Americans’ private affairs, whether that prying is done by way of physical searches of our cell phones, remotely through surveillance of our phone calls and internet activities, or by tracking our cell phone signals to gauge our whereabouts.”

The issue at the heart of United States v. Wurie arose out of an incident that took place in September 2007, when Boston police officers stopped Brima Wurie, a motorist they believed was engaging in a drug deal. Police arrested Wurie and transported him to a police station. At the police station, police took two cell phones and cash from Wurie’s person. Police opened the cell phone and accessed the call log, and based on this information became suspicious that Wurie resided at a house on Silver Street in Boston. After conducting a warrantless entry of the residence to secure it, police obtained a warrant to search the residence and discovered cocaine, marijuana, a firearm and cash. Wurie was charged with possession of cocaine with intent to distribute and possession of a firearm, but moved to suppress the evidence obtained as a result of the warrantless search of his cell phone, including the evidence seized at the Silver Street residence. Although the trial court denied Wurie’s request, the U.S. Court of Appeals for the First Circuit reversed that decision and ruled that the warrantless search of the cell phone was not justified.

In January 2014, the Supreme Court granted the government’s request to review the appeals court’s decision. In asking the Supreme Court to affirm the appellate court’s ruling, Rutherford Institute attorneys point out that while the Fourth Amendment allows police to search the person of an arrestee incident to the arrest, such searches must be strictly limited to the fundamental concerns of officer safety and preservation of evidence. Neither of these concerns warrant the routine search of an arrestee’s cell phone by police, and the legality of a cell phone search incident to an arrest must be judged on a case-by-case basis. Moreover, Institute attorneys point out that allowing cell phone searches incident to an arrest would open up a vast amount of personal information to police.

Affiliate attorneys Anand Agneshwar, Robert B. Sobelman, and Carl S. Nadler of Arnold & Porter, LLP, assisted The Rutherford Institute in advancing the arguments in the amicus brief before the Supreme Court.