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SAN DIEGO – The American Civil Liberties Union today demanded a federal investigation into allegations of rampant abuse of individuals, including U.S. citizens and legal residents, by Customs and Border Protection agents at ports of entry along the U.S.-Mexico border.

In a complaint filed today with the Department of Homeland Security, the ACLU and its border affiliates in San Diego, Calif., Arizona, New Mexico and Texas document 11 instances in which Customs and Border Protection (CBP) agents disregard the civil and human rights of individuals crossing the border in apparent violation of the U.S. Constitution, international law and agency guidelines. Most of the individuals complaining of abuse are U.S. citizens or are lawfully residing or visiting the U.S.

“There is simply no justification for the kind of needless abuse CBP officers inflict on many travelers,” said Sean Riordan, staff attorney for the ACLU of San Diego and Imperial Counties. “Far too many travelers are told by CBP officers that they have no rights. But the government must comply with basic and constitutional rights even when it is policing the border. It is unacceptable that CBP has not established sufficient oversight and accountability mechanisms to prevent officers from physically assaulting, detaining and psychologically abusing travelers.”

The ACLU’s complaint includes evidence of excessive force; unwarranted, invasive and humiliating personal searches; unjustified and repeated detentions based on misidentification; and use of coercion to force individuals to surrender their legal rights, citizenship documents and property.

In one example, Hernan Cuevas, a Chilean businessman who was attempting to enter the U.S. with a valid visa, was strip-searched and chained to a metal bench for three hours without explanation. One CBP officer told him, “This is my country now and when you are here, you listen to me. I don’t like your kind that takes our jobs and uses our system…”

“I could not believe I was in the U.S. I was completely perplexed,” said Cuevas. “The incident was so bizarre that it was a perfect fit for a ‘banana republic,’ a corrupt place without democracy.”

Many of the testimonies collected by the ACLU include CBP agents physically attacking women and men, some of whom were handcuffed at the time. Testimonies include unnecessary and invasive searches, which left some affected individuals feeling as though they had been sexually assaulted.

The conduct of CBP officers at or near the points of entry along the U.S. border has come under scrutiny in recent years after two high-profile deaths. In May 2010, Anastasio Hernandez-Rojas, a 42-year-old construction worker and father of five, died after being beaten and then tased by a group of up to 20 CBP officers at the San Ysidro Port of Entry near San Diego. And in June 2010, Sergio Adrían Hernández Güereca, a 15-year-old boy, was fatally shot by a CBP officer after reportedly throwing rocks at officers near the El Paso Port of Entry. The Department of Justice last month announced it would not pursue criminal charges against the officer involved.

Despite there being fewer border apprehensions in 2011 than in any year since 1971, and despite border apprehensions dropping by 80 percent since 2000, the number of border patrol agents has more than doubled since 2004.

“There is an urgent need for CBP to be subjected to increased oversight and accountability in an effort to curb the abuses that are occurring regularly along the border,” said Judy Robinovitz, deputy director of the ACLU Immigrants’ Rights Project. “CBP officers are not exempt from adhering to basic constitutional requirements.”

The ACLU’s complaint calls for an investigation of each of the individual allegations of abuse, and calls for the Department of Homeland Security’s Inspector General to undertake a comprehensive investigation of ports of entry complaints and implement institutional changes in training, oversight and accountability that are necessary to prevent further abuses.

A copy of the ACLU complaint is available online at:
www.aclu.org/immigrants-rights/customs-and-border-protection-complaint

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FOR IMMEDIATE RELEASE: Wednesday, May 9, 2012

CONTACT: Steve Hopcraft, 916/457-5546; steve@hopcraft.com;

Micah McCoy (972) 740-6675; mmccoy@aclu-nm.org

Patient Joins Doctors’ Court Case, Asks for Aid-in-Dying Option

ALBUQUERQUE, NM – A 48-year-old Santa Fe woman with advanced ovarian cancer has joined a case asking a court to clarify the ability of mentally competent, terminally ill patients to obtain aid in dying from their physician if they find their dying process unbearable. Aja Riggs, whose cancer is advanced and aggressive, joined two prominent Albuquerque physicians, Dr. Katherine Morris and Dr. Aroop Mangalik, as a plaintiff in the case. Kathryn Tucker, legal director of the national nonprofit Compassion & Choices, and Laura Ives, legal director of the American Civil Liberties Union (ACLU) of New Mexico, are serving as co-counsel in the case.

Ms. Riggs was diagnosed in August, 2011; surgery in October and subsequent developments revealed the severity and aggressiveness of her cancer. Since then doctors have treated her with radiation and chemotherapy. For much of the time she has suffered debilitating exhaustion. In December she suffered neutropenia — an immune system “crash” — requiring hospitalization.

“That experience,” said Ms. Riggs, “and the amount of pain and intensive medical treatment, has made me think: If this disease is going to take my life, I don’t need to go to the very end with it. I understand people can’t know how they’ll feel until they get there. So I don’t know. But I know I want to have the choice.”

The plaintiffs request a ruling that physicians who provide a prescription for medication to a mentally competent, terminally ill patient, which the patient could consume to bring about a peaceful death, would not be subject to criminal prosecution under existing New Mexico law, which makes a crime of assisting another to ‘commit suicide.’ The choice of a dying patient for a peaceful death is no kind of ‘suicide,’ the case asserts, and the physician does not assist such a patient in ‘committing suicide.’

“When I heard about this case on the radio it answered the dilemma I’ve been struggling with,” said Ms. Riggs. “I’ve been thinking so much about having some control over the end of my life, and I felt I couldn’t talk about it with the people closest to me. I thought if it came to choosing a peaceful death, I would have to do it on my own to keep from implicating anyone else. To end that sense of fear and isolation that people have — about one of the most important incidents in our lives — it makes so much sense.”

The filing and supporting declarations can be viewed here: http://CompassionAndChoices.org/Morris

Photos of Aja Riggs appear here: Aja Riggs 1

Aja Riggs 2

Aja Riggs 3

Compassion & Choices is a nonprofit organization working to improve care and expand choice at the end of life. We support, educate and advocate.

ALBUQUERQUE, NM – Today, the American Civil Liberties Union (ACLU) of New Mexico sent letters to county jails throughout the State of New Mexico, discouraging them from routinely strip searching arrestees without reasonable suspicion that they possess contraband. Despite  a recent U.S. Supreme Court ruling that broadened strip search authority under the federal Constitution, the ACLU asserts that the New Mexico State Constitution would altogether prohibit routine, suspicionless strip searches.

“Our State Constitution holds our law enforcement officials to higher standards,” said ACLU of New Mexico Executive Director Peter Simonson. “In New Mexico, we know that subjecting people to routine strip searches without reasonable suspicion is wrong. It is humiliating, degrading and dehumanizing.”

New Mexico courts have consistently interpreted Article II, Section 10 of the New Mexico State Constitution (our state constitutional equivalent to the Fourth Amendment) to guarantee a ‘broad right’ to be ‘free from unwarranted governmental intrusion.’ Legal analysis of the state constitution has led ACLU of New Mexico attorneys to conclude that New Mexico courts would likely find suspicionless strip searches of people arrested for minor offenses unreasonable.

The case that prompted the Supreme Court ruling involved a man named Albert Florence, who was arrested in 2005 due to a police computer error that showed he failed to pay a fine he had already taken care of. Though innocent, Florence was held for six days and strip searched twice, made to squat naked and cough as jail officials examined his body. Throughout the country, an estimated 700,000 individuals are sent to jail for relatively minor infractions every year. Often people are found to be innocent of charges or the court drops the charges against them.

“This is something that could happen to anybody,” said ACLU of New Mexico Managing Attorney Laura Schauer Ives. “For something as small as forgetting to pay a traffic fine, you could find yourself standing naked before a government employee. We want to make sure that jail officials understand that this is unacceptable in New Mexico.”

In its letter, the ACLU of New Mexico declares its commitment to ensuring that the Supreme Court’s recent ruling does not give rise to gratuitous use of strip searches and violations under the New Mexico constitution in New Mexico’s jails.

Read the letter here: Letter to NM Jails

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ALBUQUERQUE, NM – The American Civil Liberties Union (ACLU) of New Mexico has filed a lawsuit against the New Mexico Children’s Psychiatric Hospital (NMCPH) for violating LeGina and Todd Thomases right to direct the care and upbringing of their 12-year-old daughter. The Thomases allege that the hospital mistakenly diagnosed their daughter as severely mentally ill, and threatened to have the state take custody of her if they did not approve administration of strong psychotropic drugs intended for adults.

“While psychiatrists can provide valuable insight, the decision of whether a young child is exposed to potentially dangerous psychotropic drugs should be the parents’,” says ACLU-NM Managing Attorney Laura Schauer Ives.   “In this case, doctors attempted to usurp the Thomases’ right to make major medical decisions for their daughter because the parents disagreed that medication should be the first line of treatment. Insisting that doctors exhaust other treatment options before administering powerful psychotropic drugs does not make parents incompetent. It means they care about their child and want what’s best for her.”

In April 2010, LeGina and Todd Thomas’s daughter was referred to NMCPH in connection with a police investigation into the possibility that an older boy had inappropriate sexual contact with her. The doctors diagnosed her with schizophrenia, borderline personality disorder and severe depression. They insisted that she receive strong psychotropic medications, some of which carry the FDA’s “black box” label warning that they may increase risk of suicide.

The Thomases’ daughter had no previous history of mental illness. Both the police and the Thomases were skeptical of the daughter’s claims that she was suicidal and experiencing hallucinations, believing that she was trying to distract them from pressing charges against the boy she may have had sex with. The Thomases declined the medications for their daughter, insisting that doctors exhaust less extreme treatment options, including counseling, before administering serious drugs.

In response, NMCPH placed an emergency medical hold on the Thomases’ daughter, asserting that the parents were not competent to make medical decisions on her behalf. Two days later, an NMCPH nurse prohibited Mrs. Thomson from talking with her daughter after she had been attacked by another psychiatric patient and suffered a minor head wound. Soon thereafter, NMCPH filed to have the daughter involuntarily committed to their care.

However, on May 5, 2010, the NMCPH received notice from the Thomases’ insurance carrier that the daughter’s stay would no longer be covered. NMCPH immediately dropped all efforts to commit her involuntarily and instructed the Thomases to retrieve their daughter from the hospital before her insurance coverage ended.

The daughter subsequently confessed to her parents that she had faked her symptoms of mental illness and apologized. In the two intervening years, she has exhibited no further behavioral problems and has continued to excel in school.

“No other family should have to endure the nightmare we did,” says LeGina Thomas. “We knew our daughter had just told a lie that snowballed out of control, but no one would listen to us. Instead they tried to take her away from us and drug her up.”

The plaintiffs are suing NMCPH for punitive and compensatory damages for First Amendment retaliation, and violating the Thomases right to familial association, direct care and upbringing of a child.

The legal complaint was filed in U.S. District Court by ACLU-NM Managing Attorney Laura Schauer Ives and Co-Legal Directors Matthew Garcia and Maureen Sanders.

A full copy of the legal complaint can be found here: Thomas v. NMCPH

CONTACT: Micah McCoy, (505) 266-5915 x1003 or mmccoy@aclu-nm.org

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John C. Bienvenu

Over the vigorous dissent of four justices, the U.S. Supreme Court ruled last week that the U.S. Constitution does not prohibit jails from routinely strip searching inmates, even if people are booked into facilities for minor offenses and officials have no reason to suspect they are carrying contraband. In other words, even people arrested for such nominal offenses as driving without a license or failing to use a turn signal could be forced to strip naked and let jail guards inspect their most intimate parts with no recourse under our Fourth Amendment protection against unwarranted searches. This ruling strikes another blow to Americans’ vanishing guarantees of privacy.

Far-reaching as this ruling may appear, jail officials in New Mexico should not rush to assume that the Court’s ruling grants them carte blanche to begin blanket strip searches of all detainees. The New Mexico Constitution also prohibits unwarranted searches, and our state courts have shown greater enthusiasm for safeguarding that right than what the Supreme Court evidenced in its recent ruling. For example, New Mexico courts have consistently rejected the federal precedent that motorists lower their expectation of privacy, and are more subject to search, when they enter an automobile.

The jail that implements blanket strip searches runs the risk of inviting state constitutional claims that might be entirely undiluted by the high court’s ruling.

What’s more, even in federal court, the Supreme Court’s ruling might not protect a strip search policy that does not result in a higher incidence of detection of contraband or otherwise increase jail security. As our federal court of appeals observed nearly twenty years ago, “There can be no doubt that a strip search is an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). Other courts have aptly described strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” (Id.)

The ACLU would not hesitate to represent someone who was forced to strip before a jail guard when they were accused of only a minor offense and gave no reason to suspect that they were connected to drugs, weapons, or violence. Among those who are booked into jails every day are people who have committed no crimes whatsoever, but who are the victims of bureaucratic snafus. Indeed, the plaintiff in Florence v. Board of Chosen Freeholders, the recent U.S. Supreme Court case, is someone who was erroneously arrested in 2005 for failing to pay a traffic fine that he had already paid.

Other people are booked into jails on accusations of minor misdemeanor offenses that have no relationship to drugs, weapons or violence. They are mothers, spouses, grandparents, siblings. In short, they are all of us and all of our family members and friends who, at any moment, can find ourselves taken to a jail on minor or completely erroneous charges. There is no reason to suspect across-the-board that anyone arrested for such minor offenses is likely to be smuggling contraband into jail through their bodily orifices. In his dissent, U.S. Supreme Court Justice Stephen Breyer cited an Orange County, N.Y., correctional facility in which a study of strip searches detected one instance of contraband among 23,000 inmates searched.

Recent class action lawsuits throughout New Mexico have caused several jails to adhere to policies that restrict strip searches to circumstances in which jail officials have “reasonable suspicion” that a detainee may be harboring drugs, weapons or other contraband. Such policies strike a reasonable balance between the need to secure the facility and the need to protect the privacy and dignity of individuals who have not been convicted of any crime. They also agree with standards promulgated by the American Correctional Association, which rejects the need for suspicionless strip searches.

To cast aside the time-tested practice of using reasonable suspicion to guide strip searches on the basis of the Supreme Court’s recent ruling would be a grave error. We trust our government to use its powers judiciously, not to exploit them to their fullest extent just because it can. The ACLU guards against such gratuitous use of power, and we will as eagerly challenge it in the context of jail strip searches as we do in all other arenas of government authority.

John C. Bienvenu

Cooperating Attorney, ACLU-NM