News & Commentary

Via Facsimile 870-338-9832 and U.S. MailAugust 8, 2008J.F. Valley, MayorHelena-West Helena 226 Perry Street Helena-West Helena, AR 72342Re:  Emergency Curfew OrderDear Mayor Valley:The American Civil Liberties Union of Arkansas is a non-profit organization dedicated to preserving and defending the rights guaranteed to us by the United States and Arkansas Constitutions.  The purpose of this correspondence is to notify you that your city's emergency curfew orders are unconstitutional, and that enforcement of such ordinance and orders may subject the city to civil liability for violating of the rights of those upon whom the curfew is imposed and enforced. Chapter 7.12 of the Helena-West Helena City Code pertaining to curfews states:7.12.01  Civil emergencies  The Mayor, at any time a condition has arisen or is imminent, which in his judgment constitutes a civil disturbance, riot, insurrection or time of local disaster, may declare a state of emergency and impose a curfew for such time and for such areas as he deems necessary to meet such emergency.  Provided, however, such curfew shall not extend for over a period of fourty-eight (48) hours unless extended by a majority vote of the members of the governing body.On August 7, 2008, you issued an order that all residents of a particular zone of the city be subject to a curfew prohibiting loitering, standing, and "hanging out," and providing for stop and investigation of all moving traffic.  Furthermore, you ordered that Code Enforcement pursue evictions for all persons residing in homes where at least three criminal violations have occurred. A high crime rate in Helena-West Helena is not a condition set forth in the city code for which the Mayor can declare a state of emergency, and as such it appears you are acting ultra vires.  Peaceful, law abiding citizens are being ordered into their homes by law enforcement, underscoring that the situation in your city has not reached riot or natural disaster proportions.  Were the city code to grant you the authority to declare a curfew on all citizens, the code would be unconstitutional, as set forth below. This order is blatantly unconstitutional on numerous grounds.  First, such curfews have never been allowed under the laws of the United States, barring riot, insurrection, or natural disaster.  Not one case has ever allowed for the imposition of searches, seizures, and house arrest against innocent citizens because of the high crime rate in a particular city.  See, e.g. American Civil Liberties Union of West Tennessee, Inc. v. Chandler, 458 F.Supp. 456 (W.D. Tenn. 1978).  In fact, "state of emergency" curfews imposed upon youth aimed at addressing youth crime have been declared unconstitutional.  Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003); Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997); Hutchins v. District of Columbia, 942 F.Supp. 665 (D.D.C. 1996); Walters v. Barry, 711 F.Supp. 1125 (D.D.C. 1989); McCollester v. City of Keene, 586 F.Supp. 1381 (D.N.H. 1984); Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981); Naprstek v. City of Norwich, 545 F.2d 815, 818 (2d Cir. 1976); State v. J.P., 907 So.2s 1101 (Fla. 2004); City of Sumner v. Walsh, 148 Wn.2d 490 (2003). Second, requiring adult residents of the city to be on house arrest violates these individuals' rights to travel and association, as guaranteed by the United States Constitution.  Third, the very language of the Order violates the Fourth Amendment to the United States Constitution, in that, in effect, it proclaims that the Fourth Amendment is waived for all persons, including those suspected of no criminal activity.  The warrant requirement of the Fourth Amendment is in place specifically to prohibit these kinds of sweeping searches.  Law enforcement, even in areas where there are higher crime rates, is not a sufficient basis upon which to place people on house arrest, or set aside the Fourth Amendment. Fourth, the Order likely violates Helena-West Helena residents' rights to equal protection under the laws.  "[O]nce curfews are imposed, the burden falls disproportionately on minority individuals and communities."  Harvard Note, "Juvenile Curfews and Gang Violence: Exiled on Main Street," 107 Harvard L. Rev. 1693, 1707 (1994).   The order to evict all residents of homes where at least three crimes have occurred violates residents' rights to association as guaranteed by the First Amendment to the United States' Constitution.  Finally, most loitering ordinances and arrests also violate constitutional guarantees.  Papachristou v. Jacksonville, 405 U.S. 156 (1972). Notwithstanding the City Code and Curfew Order, the residents of Helena-West Helena have the right to sit under shade trees in their front yard, to ride their bicycles along the streets, protest this policy, and drive around the city with the full protections of the First, Fourth, and Fourteenth Amendments.  Citizens, including those expressing opposition to the curfew order, should be subject to no special scrutiny by law enforcement unless they are suspected of some criminal activity. Mayor, we sympathize with the need to address crime in your city, and have many good friends and members in Phillips County and Helena-West Helena.  We certainly do not seek to detract from law enforcement using their lawful authority under the Fourth Amendment to stop, question, detain, or arrest those who are suspected of committing criminal acts, but violating law abiding citizens' constitutional rights is counterproductive to quelling unrest.  Citizens receiving unlawful orders tend to object, and enforcement of this order may inflame an already problematic situation.  We urge you to immediately cease any curfews imposed due to high crime rates, whether in the entire city, or in a particular zone, and to dismiss any prosecution initiated for violation of the curfew order.  We do encourage you to find law enforcement solutions that will comply with the constitution, and hope that this letter will help you avoid a solution that may ultimately leave the city subject to liability. Please have your city attorney contact me as soon as possible to advise whether you will rescind the emergency curfew order.  Thank you for your attention to this matter, and we look forward to receiving your response.Respectfully,Holly Dicksoncc:       Helena-West Helena City Council Members?           Andre Valley, City Attorney

FOR IMMEDIATE RELEASEAugust 8, 2008As soon as the ACLU of Arkansas learned that the Mayor of Helena-West Helena, Arkansas had ordered an adult curfew instated—for the second time, and allegedly due to a high crime rate—the ACLU fired off a letter to Mayor J. F. Valley demanding that the unconstitutional curfew be rescinded immediately. The letter was copied to the mayor's brother, City Attorney Andre Valley."Imposing house arrest and suspending the Fourth Amendment for law-abiding people is only going to cause more problems for this city," said ACLU of Arkansas staff attorney Holly Dickson. "They need to work with the community to get this resolved instead of treating all of their citizens like criminals."Resources:

FOR IMMEDIATE RELEASEFebruary 29, 2008

LITTLE ROCK, AR – The American Civil Liberties Union of Arkansas filed a letter today with the Arkansas Judicial Discipline and Disability Commission in support of State Appeals Court Judge Wendell Griffen, who is facing disciplinary action by the commission for making public statements that are critical of the Bush administration. The ACLU said that any discipline by the commission would violate the judge's right to freedom of speech."The state cannot require judges to stand for election and then deprive them of ?the ability to comment on important issues of the day," said Rita Sklar, Executive? Director of the ACLU of Arkansas. "If a litigant thinks a judge's views reveal a?ground for recusal, then that is the way to handle questions of impartiality or ?the appearance of impartiality.  But an elected judge's First Amendment rights should? not be extinguished.  As a prominent African American and Baptist pastor in a small ?southern state, Judge Griffen is a community leader in a strong position to inform? public debate on today's social problems."The ACLU said that Judge Griffen's speech is protected by the First Amendment ?because the judge's comments were made on matters of great public concern or? importance, which cuts to the core values of the First Amendment, and that these ?comments did not concern matters that are likely to come before him as a judge.?  Furthermore, the ACLU says in its letter that forbidding judges from speaking on? matters of public concern would do nothing to ensure impartiality, but instead? would conceal partiality that they might otherwise reveal in their remarks.The ACLU cited the United States Supreme Court decision in Republican Party of? Minnesota v. White, which held that Minnesota's policy of barring judges from? discussing political views was unconstitutional. That decision, written by Justice? Antonin Scalia in 2002, identified two ways for handling real or perceived? problems arising from judges speaking on public matters: disqualifying a judge ?from hearing a case because of a potential conflict of interest, or voting to ?remove a judge from office.Judge Griffen faces discipline charges for the following incidents:

Please see document referenced below in the documents section.

FOR IMMEDIATE RELEASE: 8/23/2006?CONTACT: [email protected] LITTLE ROCK, AR -- A federal judge in Little Rock today agreed with the American Civil Liberties Union that Arkansas' rule for getting third party candidates on the ballot is unconstitutional.“This is a great victory for the people of Arkansas,” said Rita Sklar, Executive Director of the ACLU of Arkansas, which filed this case jointly with the ACLU Voting Rights Project. “Arkansans who want to run for political office and have political views different from those of the Democratic or Republican parties can now more easily participate in the political process. Voters also win because they are given more opportunity to support candidates who reflect their political views.”The court ordered the state to put Green Party candidates on the ballot for this coming November election. In order to get on the ballot, Arkansas election law has required that an independent candidate provide 10,000 signatures of voters in the previous gubernatorial or presidential election, but that third party candidates must provide a full three percent of those signatures -- a much higher threshold. The judge said this rule violated Green Party members' and candidates' rights to association, and impedes their right to advance their political goals.On May 30, 2006, the Green Party of Arkansas submitted approximately 18,000 signatures to the Secretary of State in support of its New Political Party Petition -- more than the 10,000 valid signatures required of an independent candidate, but clearly fewer than 24,171 that would have been required to satisfy the three percent mandate. The Secretary of State refused to accept the petition, claiming it lacked the requisite number of signatures.The ACLU filed a lawsuit on June 27, asking the judge to declare the rule for third parties unconstitutional and to order the state to put Green Party candidates on the ballot. Today the judge affirmed the ACLU's position. The state's argument for the rule was that the state had a legitimate interest in ensuring parties have a ‘modicum of support', or else the ballot could become “crowded,” a condition where a ballot is found too cluttered with names to be really useful for the voter. The state also said the third party had to demonstrate a “modicum of support” to get on the ballot.Directly addressing the state's arguments the court today found that: “Arkansas's three percent requirement in its party recognition scheme is not narrowly drawn to serve a compelling state interest. The 10,000 signature threshold is a sufficient modicum of support to serve the state's interest in avoiding cluttered ballots and the evidence shows quite clearly that the three percent requirement is much higher than necessary as it imposes a severe burden under the First and Fourteenth Amendments on the associational rights of the Green Party and the candidates who are plaintiffs in this case….” (emphasis added).“State law has effectively denied ballot access to third parties,” said ACLU of Arkansas staff attorney Holly Dickson. “This law has been so burdensome that third parties really could not sponsor a slate of candidates. Democracy doesn't function unless the people are heard. This decision puts every Arkansan in a better position to have their voices heard. That's what this country is all about.”Today's ruling is online at: www.aclu.org/votingrights/access/26515lgl20060823.html ###

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