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ACLU SETTLES SEX OFFENDER LAWSUIT

The ACLU of Oklahoma has successfully concluded its representation of an unidentified plaintiff in an action filed against defendants within Oklahoma County. The case of Doe v. Lane was filed during January in U.S. District Court for the Western District of Oklahoma.

John Doe, the ACLU’s anonymous client in the lawsuit, challenged the enforcement of residential restrictions for sex offenders. His identity was protected by an order of the Court issued on January 27, 2006.

The Oklahoma City Police Department was attempting to unfairly enforce a state law that prohibited registered sex offenders from residing within a 2,000 feet radius of a school or educational institution. Doe had tried to comply with the regulation and had even sold a house he had purchased after being informed by the Oklahoma City Police Department Registry Division that it was too close to a school and that he would be arrested if he did not move within 60 days.

Doe subsequently bought another house after consulting with the Registry Division, which assured him that could legally reside in that location. Several months later, he was contacted by the Oklahoma City Police Department and told that “new and improved” measuring techniques and “new” legal interpretations indicated that his recently purchased home was also too close to a school.

ACLU of Oklahoma's former Staff Attorney Tina Izadi filed suit on behalf of Doe on January 26, 2006 and alleged that his due process and other rights were being violated by the police and district attorney’s office. After a court appearance, a temporary restraining order from the Oklahoma County District Court and extensive negotiation, the defendants agreed to settle the case.

Wes Lane, former District Attorney for Oklahoma County, in his official capacity and the District Attorney’s Office for Oklahoma County’s employees, agents and its office agreed to refrain from initiating criminal prosecution to enforce 57 O.S. Section 590 against Doe for the duration of time that Doe remains at his present address, including any and all enforcement steps and/or proceedings and any revocation proceedings as a result of his residence.

William Citty, Chief of Police for City of Oklahoma City, in his official capacity, and The City of Oklahoma City Police Department’s employees, agents and its office agreed to refrain from initiating criminal prosecution to enforce 57 O.S. Section 590 against Plaintiff for the duration of time that Plaintiff remains at his present address, including any and all enforcement steps and/or proceedings.

As part of the settlement, the parties were prohibited from publicly identifying Doe and providing any identifying information about him to any person or entity not directly involved in the resolution and the future enforcement of the agreement in accord with the terms of the Court’s Order granting the Plaintiff’s Protective Order on January 27, 2006.

ACLU SUPPORTS MUSLIM COUPLE'S RIGHT TO WEAR RELIGIOUS ATTIRE

The ACLU of Oklahoma was contacted this spring by Malik and Minimah Muhammad, a Muslim couple involved in a case being handled in Oklahoma County District Court.  In accordance with sincerely held religious beliefs.  Mr. Muhammad wears a skull cap known as a Kufi.  Similarly, Mrs. Muhammed wears a head scarf known as a Hijab.  During a routine appearance in court, an Oklahoma County Judge ordered Mr. and Mrs. Muhammed to remove their religious attire.

ACLU of Oklahoma Staff Attorney Tina Izadi met with the Muhammads and communicated with their attorney in the case before the District Court.  She prepared a motion regarding their religious liberty interests that would be ready to file if another judge ordered them to remove their religious garb.  She attended courtroom proceedings with them on May 18 and June 2.  Both these appearances occurred without incident.

Izadi continued her vigilance on behalf of these clients until their matter in the District Court was settled.  The Muhammads case concluded without further infringement on their religious liberty.  Izadi then sent the District Presiding Judge a letter to request that deference be accorded to religious attire by the Oklahoma County District Court.

ACLU CASE ON BEHALF OF UNFAIRLY DETAINED MUSLIM MAN CURRENTLY IN SETTLEMENT TALKS

The ACLU National Office, in conjunction with the state affiliate, initiated a lawsuit last fall on behalf of a Muslim man who was unfairly detained and mistreated at the Oklahoma Federal Transfer Center during March of 2003. The case of Al-Kidd v. Sugrue was filed in the U.S. District Court for the Western District of Oklahoma to vindicate the rights of plaintiff Abdullah al-Kidd following harsh treatment he received while in custody at a facility supervised by defendant Warden John Sugrue.

The lawsuit is currently in settlement talks.  This development follows a ruling favorable to the plaintiff by the federal judge in the case.

Al-Kidd, an African-American native of the United States, converted to Islam while he was in college. His parents, siblings, wife and child were all born in the United States. The FBI had contacted him several months prior to his detention in order to investigate a case in which al-Kidd was not a suspect but a potential material witness.

Having booked a round-trip, coach-class ticket to Saudi Arabia to further his studies at a well known university there, al-Kidd was humiliatingly arrested by FBI agents in front of numerous onlookers at Dulles International Airport near Washington, D.C. on March 16, 2003. The FBI had obtained a material witness warrant to detain al-Kidd by providing a U.S. District Court in Idaho with a patently false and misleading affidavit.

The FBI’s affidavit falsely claimed that al-Kidd was scheduled for a one-way, first-class flight. The affidavit also claimed belief that the U.S. Government would be unable to secure testimony from al-Kidd if he were allowed to travel to Saudi Arabia. However, the FBI never told al-Kidd during several conversations prior to his arrest that he might be needed as a witness or that traveling abroad might be problematic for him. Furthermore, the FBI mislead the Court by failing to mention that al-Kidd was not a Saudi national returning home but a native-born, U.S. citizen who had previously cooperated with investigating agents.

During the 15 days following his arrest, al-Kidd was shuffled between three different detention centers across the country. When transported between facilities, he was shackled with leg restraints, a “belly chain” and a set of handcuffs looped through the chain so that his hands could not move more than a few inches from his waist. At each facility, he was held under high-security conditions and rarely, if ever, permitted to leave his cell.

Al-Kidd was transported to the Oklahoma Federal Transfer Center on March 23, 2003 in a special plane carrying approximately 100 other detainees, many of whom were believed to have been charged with or convicted of serious offenses. Upon their arrival, al-Kidd and the other detainees were taken to a large room.

After a considerable time, al-Kidd was singled out and brought to a room where he waited by himself. He was then transferred to a cell, where he was forced to sit completely naked for a long time in the view of guards, including at least one female guard, and other detainees, who remained clothed. Al-Kidd remained naked in his holding cell until other detainees had been processed, then he was given his clothes and processed.

Following his processing, al-Kidd was placed in a high security unit at the Oklahoma Federal Transfer Center. He was not allowed to leave his cell the entire time he was held at the facility. The conditions of his detention were excessive, punitive and contrary to legal standards that distinguish between material witnesses and prisoners charged with or convicted of crimes. Al-Kidd, who was not a flight risk or a danger, was never afforded any sort of hearing or fair process prior to being detained under heightened security. As warden of the Federal Transfer Center, defendant Sugrue was ultimately responsible for the mistreatment of Abdullah al-Kidd.

After staying one night in Oklahoma, al-Kidd was transported to a county jail in Boise, Idaho. On March 31, 2003 the U.S. District Court in Idaho ordered that al-Kidd be released from custody. He was never called as a witness in the case for which he was detained, and the trial in that case concluded without a conviction on a single count.

Al-Kidd subsequently filed a lawsuit in the District of Idaho alleging that he was unlawfully arrested and detained. The lawsuit named numerous defendants, including former U.S. Attorney General John Ashcroft, two FBI agents and wardens of the three facilities where al-Kidd was detained in Virginia, Oklahoma and Idaho. Plaintiff al-Kidd and defendant Sugrue entered into a joint stipulation on October 11, 2006 that allowed the claims against Sugrue to be transferred to the U.S. District Court for the Western District of Oklahoma.

The ACLU’s complaint in the case argues that the government may not use the federal material witness statute as a pretext to arrest an individual without probable cause for the sake of preventative detention. In addition, the ACLU argues that the witness may not be arrested at all unless there is a legitimate reason to believe that his testimony could not be secured voluntarily or by issuing a subpoena. Finally, the complaint insists that an individual arrested as a material witness must be detained under conditions consistent with his status as an innocent witness instead of being treated as a criminal suspect or convict. The ACLU charges that the government has systematically ignored these essential safeguards, as well as numerous others mandated by statutes and the Constitution in the aftermath of September 11, 2001.

The al-Kidd complaint seeks a jury trial, compensatory damages, punitive damages, costs, reasonable attorney fees and a declaration that the defendant’s actions violated the Constitution. It further asks the Court to declare that that defendant’s actions, practices, customs and policies regarding the detention of material witnesses were unjustified, illegal and violated the constitutional and legal rights of the plaintiff.

A federal judge recently issued a strong decision in the case that al-Kidd should not have been strip searched as an innocent person being detained under the federal material witness statute.  The decision also declared that the treatment of al-Kidd was unconstitutional.

Lee Gelernt, Lucas Guttentag and Robin Goldfaden of the ACLU Immigrants’ Rights Project are handling the case with help from Michael Wishnie, a cooperating attorney in New Haven, Connecticut. They received assistance from former ACLU of Oklahoma Staff Attorney Tina Izadi.

BAPTIST MINISTER ACQUITTED OF LEWDNESS  CHARGE

A Baptist minister arrested in January of 2006 for inviting an undercover male police officer to a hotel room for sexual activity was acquitted on March 7, 2007. The Rev. Lonnie Latham, a former board member of the Oklahoma Baptist Convention, had been charged with offering to engage in an act of lewdness. Oklahoma County District Judge Roma McElwee issued the acquittal following a brief trial.

Latham was represented in the criminal misdemeanor case by Mack Martin, an attorney in private practice. However, the ACLU National Lesbian and Gay Rights Project, with assistance from the ACLU of Oklahoma, became involved in the case last year by filing a friend-of-the-court brief. The ACLU’s brief argued that speaking with another adult of the same gender about non-commercial, consensual sex should not be a crime, since the sexual activity itself is constitutionally protected by the Lawrence v. Texas precedent.

“We applaud the court for acquitting Rev. Latham. As we have said since he was arrested, it is not a crime to have a conversation with someone about consensual sex,” said ACLU of Oklahoma Executive Director Joann Bell about Judge McElwee’s verdict. “The Supreme Court has made it crystal clear that consenting adults are free to do what they wish in private. We hope this result sends a message to law enforcement personnel and the district attorney that this type of prosecution won’t fly.”

Kenneth Choe of the ACLU Lesbian and Gay Rights Project drafted the friend-of-the-court brief and reply to the prosecution in Latham’s case. Micheal Salem, a cooperating attorney in Norman, served as local counsel.

MUSTANG STUDENT OVERCOMES ZERO-TOLERANCE PENALTIES

Last fall, eighth grade Mustang student Chloe Smith accidentally left prescription medication in her purse without checking it into the school office. Smith was taking the non-addictive medicine under the direction and supervision of a physician.

During a classroom sweep, drug dogs allegedly alerted school officials that Smith’s coat contained contraband. A search ensued, and the prescription medication was discovered in her purse.

As a result of her mistake, Smith and her parents were informed that two disciplinary options were available. She could choose to be suspended for the remainder of the school year, or she could opt to receive a ten-day suspension accompanied by 8 hours of drug counseling and monthly, random urinalysis. The family would be required to shoulder the expense of the counseling and drug testing.

This draconian discipline for a relatively minor infraction concerning prescription drugs was justified by Mustang school administrators as being mandated by a district-wide zero-tolerance policy. Smith’s mother believed that the punishment was excessive, and she contacted the ACLU of Oklahoma.

Staff Attorney Tina Izadi represented Smith in negotiations with the Mustang School District and at an administrative appeal hearing. Smith was returned to the classroom after five days of suspension pending the hearing.

At the hearing, Izadi convinced the appeal panel to reduce the discipline to the five days of suspension that Smith had already served. In addition, no drug counseling or random urinalysis would be required.

Due to concerns about Smith’s permanent academic record and the overzealousness of administrators in the matter, Izadi filed an appeal with the Mustang Board of Education. Izadi’s examination of the district’s policy indicated that it did not have a zero-tolerance mandate in place and that officials had discretion in their enforcement options.

The Mustang School District and the ACLU reached an agreement through negotiation before the appeal was scheduled to be heard by the Board of Education. As a result, Smith’s student record was expunged of the disciplinary record and any references to her medical condition. In addition, the school recognized that it did not have a zero tolerance policy. Furthermore, the district agreed to conduct in-service training for administrators to insure that the policy is not implemented as such. Finally, the district agreed to insure that private contractors operating on school premises would not operate outside constitutional parameters in their use of drug dogs.

ACLU DEFENDS STUDENT REFUSING TO SAY PLEDGE OF ALLEGIANCE

Travis Busby, a seventh-grader at Nimitz Middle School in Tulsa, refused to stand for the Pledge of Allegiance on June 8, 2005. He also opted not to participate in reciting the Pledge. As a result, the school’s assistant principal imposed a two-day suspension as punishment.

Busby’s mother contacted the ACLU of Oklahoma and reported the incident to Staff Attorney Tina Izadi. After reviewing the mother’s report, Izadi initiated dialogue with Tulsa Union Public Schools, and was referred to the district’s attorney. During negotiations with the school’s lawyer, she explained the ACLU’s position that Busby’s punishment was a violation of his First Amendment rights. The district agreed not to penalize Busby for the work he had missed while out of school.