vol. 47, no. 6

Primary tabs

Volume XLVII

In a case which could have a major

impact on the rights of gay employees,

Lawrence Brinkin, a secretary at

Southern Pacific who was denied

funeral leave when his lover of eleven -

years died, filed suit against his

employer on June 29 in San Francisco

Superior Court. The ACLU-NC is

representing Brinkin, arguing that

SP's denial of benefits is discriminatory

under California statutory and constitu-

tional law.

Brinkin, a secretary/word processer

with SP in San Francisco, lived with his

male lover for eleven years. They were

physically and emotionally intimate,

shared finances, took their vacations

together - in short, their living pattern

followed those of married couples.

In June 1981, following a serious

depression and illness, Brinkin's lover

died. Brinkin requested three days

funeral leave pursuant to Rule 67 of his

union contract which states: "In the

_ event of a death in the immediate fami-

ly...an employee shall be entitled to a

maximum of three days off with pay at

the rate of the position last assigned."'

SP denied Brinkin the leave, asser-

ting that the policy only applied to

""wife'' or "Shusband."'

Brinkin then turned to his union, the

International Brotherhood of Railway,

S.F. Cops ``Illegal Street Sweeps''

Trial Opens

Airline, and Steamship Clerks, but the

Brotherhood - refused

grievance on his behalf.

At an ACLU press conference

Brinkin explained, `I lived with this

man for eleven years, and his death was

a very difficult and heavy experience for

me. I took off six working days to deal

with my grief.

"Tl am angry and upset with the com-

pany for not helping me through this

period of mourning - which is what

Rule 67 was written for,'' Brinkin add-

ed.

ACLU-NC cooperating attorney Mat-

thew Coles of the San Francisco law

firm of Coles and Nakatani, who with

staff attorney Margaret Crosby is

handling the case for the ACLU, ex-

plained the basis of the lawsuit.

"Rule 67 of the union contract

governs funeral leave. This rule

discriminates against gay employees

because it conditions funeral leave on a

status (marriage) which they are unable

to obtain," Coles said. ``Therefore, the

to pursue a

provision violates the San Francisco

Police Code which forbids discrimina-

tion in employment on the basis of sex-

ual orientation. It also is illegal under

the Fair Employment and Housing Act

which forbids discrimination in employ-

ment on the basis of marital status..

The San Francisco Police Department went on trial this month, charged by the

ACLU with illegal and unconstitutional arrests of street people.

ACLU staff attorney Amitai Schwartz put police officers - including Chief of

Police Cornelius Murphy and head of the Vice Crimes Division George Eimil - on

the stand and sharply questioned them about the police practice of using Penal

' Code Section 647ccent:. to "sweep the streets'' of people they deem to be undesirable. (c)

"The evidence will show a broad, persistent and cynical pattern and practice of

_ police arrests without warrants, probable cause and in bad faith without any

reasonable expectations that convictions will follow,'' Schwartz said in his opening

statements on August 12.

"Fewer than 5% of those picked up under 647c are ever charged or convicted

with any crime," Schwartz told S.F. Superior Court Judge Lawrence Mana.

The Taxpayers suit, Ramey v. Murphy, seeks a court order prohibiting arrests

under 647c without probable cause.

As the ACLU News goes to press, the trial continues with Deputy City Attorney

Victoria Hobel opening her defense of the Police Department.

August-September 1982

ay Worker Sues SP |

Lawrence Brinkin (r.) was denied funeral leave by Southern Pacific when his lover

lol

SMON NTOW/JAIlIW 1eeUdINI

of 11 years died. He and ACLU cooperating attorney Matthew Coles told a press

conference why the discriminatory policy must be changed.

"In addition,'' Coles added, ``Rule

67 conditions the right to funeral leave

on how an individual makes private

decisions about living arrangements,

sexuality, and personal commitments.

This violates the California Constitu-

tion's guarantee of an employee's right

to privacy."'

The suit also names Brinkin's union

as a defendant for negotiating the col-

lective bargaining agreement contain-

ing the discriminatory funeral leave (c)

rule.

The ACLU is asking the court to

award Brinkin damages of three days

wages and general damages. In addi-

tion, the suit asks the court to declare

that Rule 67 unlawfully discriminates

on the basis of sexual orientation and

marital status and unlawfully invades

the privacy of employees. ae

The ACLU is also seeking an injunc-

-tion to stop the use of Rule 67 and to re-

quire SP and the Brotherhood to draw

up a rational, non-discriminatory

funeral leave policy: :

"T feel I am entitled to take a leave to

mourn the death of a man to whom I

was totally committed in every way,"'

Brinkin said, adding, "I want to see

this rule changed so that in the future it

will not be used against me or against

any other employees who would suffer

from this discriminatory policy."

ACLU attorney Margaret Crosby ad-

ded, ``The marriage criterion is often

used to determine eligibility for various

kinds of employment and government

benefits, resulting in widespread

discrimination against gays and other

couples who are not formally married.

"This lawsuit illustrates the fun-

- damental unfairness of granting lower

compensation to those who do not or

cannot establish a state-sanctioned per-

sonal relationship. We hope that the

decision in this case will set a precedent

for a more equitable system of

distributing benefits in a pluralistic

society,'' Crosby said.

aclu news

2 aug-sept 1982

Spain Wins Appeal for Retrial

In August 1976, Johnny Larry Spain,

a Black Panther Party member, sat

shackled to his chair in=the Marin

County Courthouse and listened to the

verdict which had just been rendered

against him - guilty of murder. Spain,

who had been identified "by prison

authorities as having ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1969 ACLUN_1969.MODS ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1981.batch ACLUN_1982 ACLUN_1982.MODS ACLUN_1982.batch ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log `militant political

and social views,'' had, from the age of

20, spent years in segregation units at

Soledad and San Quentin. It was from

the notorious Adjustment Center at San

Quentin -

violent or troublesome prisoners - that

he allegedly conspired in an "escape at-

tempt,'' a violent outbreak which left

Black Panther leader George Jackson,

two other inmates and three prison

guards dead. Spain was indicted with

five other prisoners in what became one

of the longest trials in state history -

the trial of the San Quentin Six.

Kathy Cramer reports on the most re-

cent - and most significant - judg-

ment in the case of Johnny Larry Spain.

On June 30, U.S. District Court

Judge Thelton E. Henderson issued a

writ of habeus corpus, stating that San

Quentin Six defendant Johnny Larry -

Spain's constitutional rights were

violated during his 1975-76 murder

conspiracy trial and ordered that Spain

be retried or that the charge be drop-

ped.

During his trial, Spain was shackled

and chained to his chair in the cour-

troom. In addition, trial judge Henry J.

Broderick allowed juror Patricia Fagan

to remain on the jury panel despite the

fact that she acknowledged to the judge

in private that her close friend had

allegedly been murdered by a Black

Panther Party member. These abuses

were cited by the ACLU in an amicus

brief of Spain's behalf as blatant due

process violations.

Eugene G. Iredale, the attorney who

prepared the amicus brief for the

ACLU-NC and California Attorneys for

Criminal Justice said of Judge Hender-

son's ruling, "This decision finally gives

Johnny Spain the vindication he has

long deserved for the terrible and

degrading way in which his rights were

violated."" -

Spain's attorney, former State Public

Defender Dennis Riordan added, "This

has made a tremendous difference to

Johnny Spain. For the first time in 11

years, the possibility exists that he will

be able to clear himself."

.The ACLU first entered the case as

friend of the Court when it was before

the California Court of Appeal. That

court ruled in 1980 that the due process

violations during Spain's trial were

`harmless errors.' When the State

Supreme Court refused to hear the

case, Riordan took the appeal to a

federal court. The ACLU joined the

federal court appeal, said staff attorney

Alan Schlosser, because "`we were con-

cerned that, because of the notoriety

surrounding the events and George

Jackson, and because of the extraor-

dinary length and expense of the trial, it

would be difficult for Spain to get a fair

review despite the baltant due process

violations.'

U.S. District Court Judge Henderson

agreed with the ACLU and Riordan,

stressing in his decision that the court

had `"`no choice but to issue the writ,

"due to the mid-trial contact between

.juror Fagan and the trial judge. As

the isolation wing for |

counsel was not present at the meeting

between the judge and the juror,

Amendment rights to have counsel pre-

sent at all critical phases of the trial.

Riordan noted the seriousness of this

violation, explaining, `""The trial judge

not only permitted Fagan to remain on

the jury, he concealed her revelation

from the defense despite his clear

ethical, legal and moral obligations to

make public any judicial contact with a

juror."

The court did not rule on the shackl-

ing issue, but noted, `"The shackling of

petitioner Spain in the extreme manner

used in the trial appears to violate the

right to a fair trial secured by the Four-

teenth Amendment."'

Following the decision, state officials

by Michael Ungar

In a major ACLU case protecting the

privacy rights of inmates, the California

Supreme Court ruled on July 7 that the

widespread practice of electronically

eavesdropping on private conversations

among detainees awaiting trial and

their visitors must be halted. The high

court ruled that such conversations can

be monitored and recorded only for

security purposes and not as a means of

acquiring evidence for prosecutors.

`This is the first such decision in the

country protecting the privacy of jail in-

mates' conversations,' said ACLU staff

counsel Alan Schlosser who argued the

case before the high court.

"The ruling is significant on two

LY EL

filed an appeal in the Ninth Circuit,

which means that Spain will remain in

jail. Riordan, however, remained confi-

dent, saying, ""We are determined to

win justice for Johnny Spain in the

Ninth Circuit and the U.S. Supreme

Court if the case goes that far."'

Bill of Rights

ngress ef the United

Prop. 8

Lawsuit

Opponents of Bene 8, the so-

called Victims Bill of Rights argued

before the California Supreme Court on

July 21 that the measure to revamp the

California Constitution, the Penal Code

and the Health and Welfare Code

violates a state constitutional provision

that a voter initiative must be confined

to only one subject.

The ACLU-NC joined the lawsuit,

Brosnahan v. Eu, as friend of the court,

focusing on unconstitutional sections of

Proposition 8's provisions on evidence

and due process.

Attorneys Ephraim Margolin and

Stanley J. Friedman filed the legal

`challenge on June 7, the day after the

measure was passed by the voters. The

suit was filed on behalf of two former

presidents of the state and local bar

associations and the president of the

California Teachers Association.

The Court's ruling on the controver-

sial initiative is imminent.

: PONY gait

DES

Board

Elections

The following candidates were

elected to the ACLU-Board of Direc-

tors. The new Board members will

begin their term in September and

will serve for three years. (In-

cumbents are marked with an

asterisk.) (c)

Alice Beasley

Steven Block

Charles R. Breyer

Richard Criley*

Donna Hitchens*

Lisa Honig*

Steve Mayer*

Drucilla Ramey*

Davis Reimer*

Frances Strauss

Linda Weiner*

High Court Halts Jail Bugs

counts. First, the court has stopped the

widespread practice - one used in jails

throughout the state - of listening to

prisoners' conversations for the purpose

of obtaining evidence to be used against

them.

"Second, any monitoring now has to

be shown to be necessary for jail securi-

ty and cannot exceed the limits of the

security needs,'' Schlosser explained.

The court's ruling came in a lengthy

lawsuit, DeLancie v. McDonald ,

originally filed by the ACLU in 1977 on

behalf of three taxpayers, a pretrial de-

tainee, his wife and his attorney after it

was discovered that San Mateo jail

authorities' surveillance of pretrial de-

tainees' conversations was regularly us-

ed to collect evidence in criminal cases.

That discovery came to light during a

special evidentiary hearing in the

Patricia Hearst case when jail officials

revealed that a monitoring system was

wired into every room in the jail and in-

to phone lines used by visitors and in-

mates to talk across glass partitions in

the visiting room.

A San Mateo Superior Court judge

dismissed many of the claims in

DeLancie, and the case never went to

trial. Last month's decision by the

Supreme Court, however, reinstated the

suit and sent the case back for a trial

before the San Mateo Superior Court.

Equal Privacy

The Supreme Court's 4-2 ruling

sought to place ``the rights of inmates

as nearly as possible on the same

footing as non-inmates, subject to the

needs of institutional security or protec-

tion of the public.'' Moreover, the

Court held that those rights must be ex-

tended to persons awaiting trial. `"The

principles of equal protection support

the conclusion that detainees retain

rights at- least equivalent to those

guaranteed state prisoners," the Court

reasoned.

Thus the majority held `"`that the

privacy of individuals and of their

visitors will not be imposed upon except

as is necessary for the identification of

persons and to maintain order and ac-

ceptable conduct."'

In response to a sheriff department's

proposal that signs be posted warning

inmates that their conversations may be

recorded, the Court said, "Privacy is

not safe if a search or intrusion can be

justified merely by proof that the state

announced its intention in advance."'

The court said that by ordering the

case to trial, plaintiffs may at least ``at-

tempt to prove as a matter of fact their

charges that such a pervasive and

unregulated surveillance is not

employed to preserve jail security or

protect the public but for the purpose of

gathering evidence against detainees."

aclu news:

8 issues a year, monthly except bi-monthly in January-February, Tune July.

August-September and November- December

Second Class Mail privileges authorized at San Francisco, California

Published by the American Civil Liberties Union of Northern California

Davis Riemer, Chairperson Dorothy Ehrlich, Executive Director {

Marcia Gallo, Chapter Page 2

ACLU NEWS (USPS 018-040)

1663 Mission St., 4th floor, San Francisco, California 94103. (415) 621-2488

Membership $20 and up, of which 50 cents is for a subscription to the aclu news

and SO cents is for the national ACLU-bi-monthly publication, Civil Liberties.

Elaine Elinson, Editor

aclu news

aug-sept 1982

The Legislature 's latest attempt to

cut Medi-Cal funding for abortion from

the state budget was struck down by the

Court of Appeal on July 29, as the result

of an emergency ACLU-NC lawsuit.

The unanimous Court of Appeal opi-

nion reaffirmed the 1981 California

Supreme Court decision that restriction

on Medi-Cal funding for abortion are

unconstitutional, and ordered that state

officials be prohibited from implemen-

ting the budget cuts. .

According to ACLU-NC Staff

counsel Margaret Crosby, "We had

asked the Court to bypass its usual pro-

cedures (full briefing and oral argu-

ment), because further debate on this

issue would dignify the Legislature's ac-

tion. The Court agreed that no defense

was possible."

The ACLU lawsuit, Committee to

Defend Reproductive Rights (CDRR) v.

Unruh, was the fifth in as many years to

challenge the Legislature's cut off of

Medi-Cal funds for abortions. The suit,

filed on July 7, was made necessary by

provisions in the 1982-83 Budget Act,

signed by the Governor on June 30,

which severely restricted Medi-Cal fun-

ding. 3

The following day, in response to the

suit, the Court of Appeal issued an tem-

porary stay requiring all state officials

to maintain abortion funding until the

lawsuit was decided and prohibiting

state Director of Health Services

Beverlee Myers from notifying Medi-

Cal recipients of the proposed budget

cuts.

Thus, as in previous years, funding

for the 8,000 women a month who seek

abortions on Medi-Cal, was never inter-

rupted despite the Legislature's action.

Crosby explained that the latest

restrictions on Medi-Cal funding were

exactly the same as those which had

been struck down by the court as un-

constitutional in previous years.

Despite court rulings to the contrary,

the Legislature restricted Medi-Cal fun-

ding for abortions solely to situations

where the women's life or health is in

danger, where the pregnancy results

from rape or incest, where the pregnant

woman is a teenager whose parents

have been notified, or where the

pregnancy could result in the birth of a

child with severe and congential ab-

normalities. "Ii these restrictions were

allowed to go into effect,'' Crosby said,

"they could cut out 97-99% of the abor-

tions funded by Medi-Cal."

Attorney's Fees

The Court of Appeal also awarded at-

torneys fees to the ACLU and co-

counsel in the suit. In June, the same

court awarded attorneys fees to the

ACLU for the previous lengthy and

complex legal challenge. The attorneys

fees in the cases - which span five

fours - amount to hundreds of

thousands of dollars.

The Court of Appeal stated, however,

that because in recent years those `"`who

have been awarded attorneys fees

against the state have encountered con-

siderable resistance when they have re-

quested payment," such fees may not

be forthcoming.

Alice Wolfson, spokesperson for the

plaintiff group CDRR, said, "That the

Legislature would blatantly defy the

California Constitution and Supreme

Reproductive Rights

Medi-Cal Funding Victory

Court in this matter becomes even more

irresponsible when they know that the

`taxpayers will have to put out an enor-

mous sum of money simply to defend

their lawless acation.

_ "That they are doing it at the same

time that they are severely cutting

benefits to indigent women for health

care is an act of hypocrisy,' Wolfson

said.

Landmark Ruling

The controversy over state funding

for abortion began in 1978, when the

Legislature first cut off Medi-Cal funds

for abortion. The ACLU and other

public interest law firms filed suit on

behalf of a coalition of plaintiffs -

ranging from Medi-Cal recipients to

health care providers - challenging the

budget cuts.

On March 20, 1981, the California

Supreme Court ruled in the ACLU

case, CDRR vy. Myers, that the

Legislature's 1978,

Budget Act limitations on Medi-Cal

funding violated the constitutional right

of privacy of women seeking to exercise

their right to choose an abortion.

Solely because of that decision, and

court orders issued during the ACLU's.

four year litigation, abortion funding

`was made available to over 100,000

women - including 27,000 teenagers

- per year who have abortions in

California.

Last year, when the Legislature

defied the Supreme Court ruling and

again cut off Medi-Cal funds for abor-

tion, the ACLU went back to court. The

Senate, represented by Attorney

General George Deukmejian, par-.

Se [

Ree

: Fe Sees

Over 300 pro-choice suppo

1979 and - 1980 -

20-Week Limit Challenged (c)

The ACLU-NC filed suit on July 13 in

Sacramento Superior Court challenging

the constitutionality of the state's 1967

Therapeutic Abortion Act which

established an absolute 20-week time

limit for the performance of any abor-

tion.

The suit, Margolis v. Deukmejian,

focuses on a recent opinion by Attorney

General George Deukmejian inter-

preting the Act which states that the 20-

week time limit should be enforced by

local prosecutors, unless they conclude

that the fetus was not viable or that the

life or health of the pregnant woman

justified the abortion. The ACLU

argues that the 20-week limit violates

-several U.S. Supreme Court decisions

and that the Attorney General does not

have authority to rewrite the law.

"The Attorney General is saying that

physicians are under a special burden

to justify post-20-week abortions or face

criminal prosecution. According to

federal law, abortions performed dur-

ing this late period should be left to the

woman's attending physician -

without being second guessed by a pro-

secutor as to whether the fetus was

viable or the abortion was necessary,"

explained ACLU staff attorney

Margaret Crosby.

"This makes it absolutely essential to

file this case so that the courts can

determine this matter and that women

who seek post-20-week abortions and

physicians who perform them can do so

without fear of prosecution,'' added

Crosby.

The case is being filed by Crosby and

ACLU cooperating attorney Deborah

rters including ACLU Board member Bernice Biggs

(ctr.) rallied in San Francisco on August 16 to protest the introduction of the

Helms anti-abortion amendment on the Senate floor. The spirited rally was called

by Emergency Action.

ticipated in the case in an attempt to

justify its funding restrictions.

In November 1981, the state Court of

Appeal ruled in favor of the ACLU,

reaffirming the earlier Supreme Court

decision.

This year's lawsuit was filed on

behalf of the same coalition of plaintiffs

who brought the earlier suits. The suit

was filed immediately after the signing

of the Budget Act to prevent notices

from being sent to Medi-Cal recipients

by the Department of Health Services

warning them that the cuts would go in-

to effect on August 15.

Crosby said that the Court of Appeal

continued on p. 6 -

Rhode, a professor at Stanford Law

School, on behalf of physicians who

perform late abortions (who represent -

their own rights and the rights of pa-

tients), and California taxpayers. The

ACLU of Southern California has join-

ed in filing this case.

Too Restrictive

The Therapeutic Abortion Act was

enacted by the California legislature in

1967. The act generally expanded the

circumstances under which women

could obtain abortions in California,

but prohibited any abortion past the

20th week of pregnancy. In 1972, the

California Supreme Court issued an

opinion striking down much of the Act,

suggesting that the 20-week limitation,

which - allowed for no _ exception

regardless of medical emergency, was

impermissible. _

In 1973, the U.S. Supreme Court rul-

ed in the landmark decision of Roe v.

Wade that women have a constitutional

right to an abortion until the moment of

fetal viability, and that even past the

point of viability, the state may not

deny an abortion to a woman whose life

or health would be jeopardized by car-

rying the pregnancy to term.

Rhode explained, "The Therapeutic

Abortion Act's 20-week limitation is far

too restrictive under the U.S. Supreme

Court formulation, both because it

denies women abortions before the

point of fetal viability (which occurs at

24 to 28 weeks), and because it makes

no provision for life or health threaten-

ing pregnancies.

"However," she added, "`the state

Legislature has neither repealed the

Therapeutic Abortion Act nor enacted

a constitutionally permissible abortion

regulatory scheme."

Health Department Guide

To guide the medical profession, the

California Department of Health Ser-

vices issued an opinion in March 1981

that since the Therapeutic Abortion

Act's 20-week limitation is unconstitu-

tional, and since the Legislature has

never re-enacted an abortion statute,

there currently exists no legal prohibi-

tion on abortion at any point in a

pregnancy. (Doctors are, however,

legally obligated to provide medical

care to any infant born alive.)

However, in April of this year, the

Attorney General issued his opinion

which collides with the legal interpreta-

tion of the Department of Health Ser-

vices.

"Under the Attorney General's inter-

pretation," Rhode said, "`there exists

the possibility of criminal prosecution

in any late-term abortion where a pro-

secutor could claim that the fetus was

viable and there were no life or health

factors sufficient to justify the abortion.

"But, as the Supreme Court has

recognized, the determination of fetal

viability is extremely complex, varying

with each individual pregnancy. Gesta-

tional age, and what constitutes a life or

health threatening situation are again

very difficult to determine.

"Thus, the Deukmejian interpreta-

tion of the law allows for a criminal pro-_

secution in which the result will hinge

on a jury's assessment of many subjec-

tive and imprecise factors."'

The ACLU attorneys claim that this

will have a chilling effect on physicians'

willingness to perform late term abor-

tions.

Crosby added that, "though the

number of women affected by the late

abortion ruling is small, the importance

of the option of late-term pregnancies is

greater than the statistics suggest."

"For example, fetal abnormality is

often not diagnosed by amniocentesis

until the 20th week of pregnancy. A

woman deciding not to bear a con-

genitally deformed child would need an

abortion now prohibited by _ the

Deukmejian ruling,'' Crosby said.

"We now have a situation where two

continued on p. 6

acldnews

4 aug-sept 1982

Suit Challenges INS `Gestapo- like' Raids

A coalition of civil rights organiza-

tions, including the ACLU-NC,

MALDEF, Asian Law Caucus and

others, filed a class action suit on

August 10 against the Immigration and

Naturalization Service (INS) for viola-

tions of the constitutional rights of

workers and employers during ``Project

Jobs'' and subsequent INS raids.

In the last week of April, INS agents

swooped down on worksites across the

nation which allegedly hire un-

documented aliens. During those raids,

conducted under the guise of ``creating

more jobs for U.S. workers,'' over 5000

persons were arrested across the coun- |

try, with approximately 500 in northern

California.

The suit, filed in U.S. District Court

charges that the INS officers violated

the constitutional rights of workers and

employers by illegally entering

worksites without warrants or consent,

and by detaining workers simply

because they looked Hispanic and

without any reasonable suspicion that

they were working illegally. The suit

also charges that INS agents either fail-

ed to advise the unlawfully detained

persons of their rights to counsel and to

remain silent, or forced persons - in

some cases with physical threats - to

give up their rights.

The complaint, which was added to

suit filed by the International Molders

and Allied Workers Union Local 164 on

behalf of their members immediately

following `Project Jobs,"' alleges that

these violations are a common practice

of the INS. Given this consistent prac-

tice, the complaint states, "the INS will

continue to conduct unconstitutional

and illegal workplace raids unless en-

joined by the Court."

MALDEF Associate Counsel John ~

Huerta speaking at a press conference

to announce the suit said, ""This type of

Gestapo-like conduct by the govern-

ment is appalling. The raids whipped

up anti-alien hysteria and caused fear

in the Latino communities - and they

didn't produce jobs for native-born

citizens." a8

The suit alleges that during Project

Jobs INS agents surrounded factories,

blocked all exits, entered without con-

sent or warrant, and proceeded to inter-

rogate and arrest Hispanic-looking

workers inside without probable cause.

Hundreds were handcuffed and detain-

ed for several hours, and were not ad-

vised of their rights to remain silent or

to talk to a lawyer.

In one case, Joseph Chavez, a United

States citizen, was arrested by INS

agents at Benecia Foundry and Iron

Works (one of the employer plaintiffs).

Despite his protests that he was a

citizen born in the country and his of-

fers to produce his birth certificate,

Chavez was handcuffed, pulled outside

of the factory by his belt, and threaten-

_ ed by INS agents that he would be kick-

ed into the van if he was not quiet. He

$2 Million Sought for S.F.

Police Bookstore Raid

Charging that the San Francisco

Police Department's October 1981 raid

on the Libertarian Bookstore was car-

ried out for the purpose of "`retaliation,

intimidation, and retribution against

the Libertarians' exercise of constitu-

tional rights,'' the ACLU-NC filed a

civil rights suit for $2 million in

damages on August 4, in U.S. District

Court in San Francisco.

The suit was filed against San Pian:

cisco Police Chief Cornelius P. Murphy,

Deputy Chief George Eimil, members

of the Vice Squad and the City and

County of San Francisco.

According to ACLU-NC staff at-

torney Amitai Schwartz, ``The police

obtained a search warrant through

trickery and proceeded to ransack files,

books, office materials and equipment

and confiscate membership lists of the

Libertarian Party in an indiscriminate

and destructive `search' for evidence of

marijuana."'

The ACLU complaint alleges that the

raid was planned and carried out by the

police in bad faith in retaliation for the

Libertarian Party's 1979 political cam-

paign to abolish the vice squad and to

punish the plaintiffs for their exercise e of

constitutional rights.

Vice Squad Initiative

The Libertarian Bookstore, located

on Market Street in San Francisco, is

operated by the Libertarian Party. It is

open to the public for the sale of books

and periodicals and is used by the party

for meetings and for the production of a ~

newspaper, the Libertarian Vanguard.

In 1979, the Libertarian Party cir-

culated a petition in San Francisco for a

ballot measure to abolish the San Fran-

cisco Police Department's Vice Crime

Division. The Party was the principal

organized proponent of the initiative.

The San Francisco Police Depart-

ment vigorously and publicly opposed

the ballot measure. Mithough the in-

itiative was defeated in the November

1979 election, the campaign generated

widespread debate about the operations

and practices of the Vice Squad.

The bookstore's premises on Market

Street are shared with a _ separate

business establishment, Mail Central, a

private mail pick-up and message

answering service.

The ACLU suit alleges that on Oc-

tober 6, 1981 a Vice Crime Division

police officer obtained a search warrant

for the premises of 1800 Market Street

on the grounds that he had purchased

marijuana from someone at Mail Cen-

tral earlier that day. The officer did not

differentiate between the premises of

Mail Central and the larger premises of

Libertarian Books, nor did he inform

the magistrate that 1800 Market Street

was a bookstore and the headquarters

of a political party.

That evening, the suit claims, at least

nine police officers raided the Liber-

tarian bookstore. They ransacked the

back room where a political meeting

was taking place, and confiscated and

destroyed party membership lists and

files, photos, printing equipment and

books.

The suit alleges that the police

maliciously and intentionally pulled

books and periodicals from shelves,

overturned file cabinets, and severely

damaged materials used for the produc-

tgion of the newsletter. The police

"broke flower pots and mixed the dirt

with water and spread the mixture on

was eventually released irom the van

several blocks from the worksite.

"This type of action by the INS has

persisted despite federal court prohibi-

tions,'"' said Charlotte Fishman, an at-

torney with the National Lawyers'

Guild, co-counsel in the case. ``Last

month, the Federal Court of Appeals

expressly found these types of factory

raids and detentions illegal,' she add-

ed, referring to a case in Los Angeles

filed by the International Ladies' Gar-

ment Workers Union.

This suit was filed as a class-action

on behalf of employees and individually

on behalf of the employers and the In-

ternational. Molders and Allied

Workers Union Local 164.

The suit asks the court to prohibit the

INS from detaining and interrogating

persons on the basis of race, national

origin, or language. It also asks for a

prohibition against detaining or inter-

rogating aliens without advising them

of their rights to counsel, to remain

`silent, or to leave the factory premises.

Defendants named in the suit include

Alan Nelson, INS Commissioner, and

David Ilchert, District Director of the

INS in San Francisco and their agents.

Joining the ACLU, MALDEF, the

Asian Law Caucus and the Guild as co-

counsel in the suit are California Rural

Legal Assistance, the Constitutional

Law and Immigration Law Clinics of

Golden Gate University, and the law

firm of Van Bourg, Allen, Weinberg and

Roger.

SR SS g

_Ph o by Jonnie Gilmang gs

papers and books," according to the

suit.

All ten persons on the premises, in-

cluding several customers at _ the

bookstore, were placed under arrest

and taken to the city jail.

The suit alleges that the sale of mari-

juana at Mail Central was used asa.

pretext for the raid and resulting

destruction at Libertarian Books.

Privacy Protection Act |

Schwartz explained that the suit is

being brought under the Civil Rights |

Act and the Privacy Protection Act of

1980. The Privacy Protection Act was

enacted by Congress as a limitation on

police searches of newsrooms and other

places where First Amendment ac-

tivities take place. The Act provides for

the payment of damages when premises

are unlawfully searched.

The suit claims that the police

violated the First and Fourth Amend-

Flash!

Retaliation

Early in the morning on Tuesday,

August 17, just one week after the suit

was filed, 3 carloads of INS agents raid-

ed two of the employer plaintiffs, Neve

Farms and Pearl River Mushrooms,

with no warrant and no consent. .

According to Mort Cohen of the

Golden Gate University Constitutional

Law Clinic who is working on behalf of

the employer plaintiffs in this case,

"The unmarked INS cars drove up a

private road to Neve Roses in Petaluma.

The agents - at least one of whom was

identified as having participated in the (c)

Project Jobs raids - jumped over the

fence onto the property and began ar-

resting workers.

"Four workers, none of whom had

ever been arrested during previous

raids, were handcuffed and taken away.

A short while later the INS agents pull-

ed the same action at Pearl River

Mushrooms which is about 100 yards

down the road from Neve."'

Cohen said that immediate legal ac-

tion would be taken.

"There is no question in my mind

that this was retaliation for the suit,

pure and simple. We've checked the

records and no worksites were raided

that day - except for these two which

are both plaintiffs in the suit. You can

draw your own conclusions," Cohen

said.

ment to the Constitution by intentional-

ly misrepresenting the nature of the.

premises to be searched with the pur-

pose of intimidating and retaliating

against Libertarian Party members. It

also claims that by going beyond the

scope of the warrant and confiscating -

books, periodicals, membership lists

and other materials of the Libertarian -

Party, the police violated the Privacy

Protection Act, enacted to prevent just

such police raids on publications of-

fices, =,

"The First and Fourth Amendments

were adopted in 1787 as a reaction in

large part to British excesses in raiding

newspapers and political dissidents,"'

Schwartz said. `"This lawsuit tests the

conduct of the San Francisco police

against principles adopted almost 200.

years ago," he added.

The suit seeks $2,000,000 in ceneral

and punitive damages and $2,000 for

the property destroyed in the raid.

aclunews -

aug-sept 1982 5

Civil Rights Under Reagan - - Under Direct Attack

The Hiatt decision, striking down Berkeley's affirmative action employment

program comes at a time when in the field of civil rights, the clock is being turned

Berkeley Affirmative Action

Program 1 Struck Down

by Michael Ungar

Echoing the arguments of the

Reagan administration against af-

firmative action, the State Court of Ap-

peal struck down the City of Berkeley's

affirmative action program stating that

the program established a "`rigid quota

system'' that "`facilitated appointments

on the sole basis of race or sex.'' The

Court disagreed with ACLU arguments

on behalf of the city's affirmative action

program and upheld a 1979 superior

court ruling that Berkeley's program

violated the equal protection

guarantees of the federal and state con-

stitutions.

The Berkeley affirmative action pro-

gram originated in 1972 when the City

Council adopted a resolution to help

eliminate the gaping racial imbalance

in the city work force and within the fire

department which, at the time, was en-

tirely white. The city's program was

targeted at underrepresented minority

groups whose proportion of the city

population substantially exceeded their

proportion of the municipal workforce.

When a job vacancy arose, the depart-

ment head was directed either to select

from a list of qualified applicants a

member of an underrepresented group,

or articulate reasons for selecting a

white candidate. The city manager re-

tained authority to overrule the selec- _

tion of a white applicant if the reasons

stated for rejecting a qualified minority

candidate were unpersuasive.

In practice, however the city manager

approved 7 out of 10 requests for a

waiver of the affirmative action plan

during its first year of operation.

In 1974, eight white firemen sued the

city for denying them promotion to the

ranks of captain and lieutenant and ad-

vancing- minority candidates instead.

The white firemen claimed that because

they scored higher on written com-

petitive exams than the minority can-

didates, they were more qualified for

the positions and had been

discriminated against on the basis of

race. In 1979, the Alameda County

Superior Court agreed with the plain-

tiff's contention and ruled _ that

Berkeley's affirmative action program

was "unduly discriminatory and in

violation of the constitutional and

statutory provisions proscribing racial

and sexual discrimination."

Civil Rights Act

The Court of Appeal upheld the trial

court ruling striking down the af-

firmative action plan. When the City of

Berkeley took its case to the California

Supreme Court, the ACLU filed a

friend of the court brief, arguing that

Berkeley's affirmative action program

was clearly permissible under the state

and federal constitutions and provisions

of Title VII of the 1964 Civil Rights Act

which Congress had extended to state

and local government employees in

1972.

According to

ACLU attorney

Margaret Crosby, "The U.S. Supreme

ruled in the landmark Weber case that

under Title VII voluntary affirmative

action programs could be used by

private employers to eliminate the

_ two rulings

vestiges of racial discrimination within

their domains. The 14th Amendment

authorizes Congress to extend to public

employers the same Title VII respon-

sibilities and remedies for ending racial

discrimination allowed private

employers.

Moreover, there is no constitutional

barrier to a private employer's adoption

' of a flexible, race-conscious program,"'

Crosby explained.

The Supreme Court sent the case

back to the Court of Appeal for recon-

sideration of its earlier decision in light

of the several intervening precedents

from both the state and federal high -

courts, including Weber, which upheld

voluntary affirmative action plans. The

Court of Appeal, however, stated that

Berkeley's racially conscious program

was not warranted because the fire

department was not guilty of past

discrimination nor could the absence of

minorities from the department be at-

tributed to general societal discrimina-

tion.

The Court, ignoring the Weber rul-

ing which upheld such private pro-

grams under Title VII, found that the

elimination of a racial imbalance at the

expense of eligible majority employees

was not Permitted under Title VII

because `"`to do so would force the

employer to hire and fire employees on

the basis of race. " This result, the

Court said was "in contradiction to the

constitutional principles of equal pro-

tection of the laws and the provisions of

the Civil Rights Act proscribing racial

and sexual discrimination." )

Continue to fight

Despite the setback of the Hiatt deci-

sion, Crosby asserted that the ACLU

will continue to fight for affirmative ac-

- tion in employment. She noted that in

the aftermath of the Hiatt ruling `'the

state of law on affirmative action has

become quite confused. We have in fact

from the California

Supreme Court - both in the fields of

education and employment - directly

contrary to the Hiatt opinion."

"Thus,'' she added, ``

the state Supreme Court a_ higher

authority ready to overrule the Hiatt

decision should a similar case arise." -

Crosby warned that the danger of the

Hiatt decision is that it may discourage

or inhibit other city and_ state

authorities from adapting or continuing

affirmative action programs because of

a fear that they will be invalidated by a

court.

The City of Berkeley disbanded its af-

firmative action program after the

superior court issued its injunction in

1979. When that injunction was upheld

in the Court of Appeal in March this

year, the city decided not to appeal its

case to a higher court, despite ACLU

urging to the contrary.

Hold the date

Sunday, December 5, 1982

San Francisco

10th Annual

Bill of Rights Day Celebration

there exists in-

back to the period before the 1954 Brown v. Board of Education desegregation

decision.

The Leadership Conference on Civil Rights, a coalition of 160 civil rights

organizations including the ACLU, recently issued a 75-page report analyzing

more than 20 legal cases and legislative issues in education, employment and

voting rights in which the Justice Department is (a) taking positions in opposition

to established laws, (b) refusing to enforce established laws, and (c) endorsing

legislation to deprive minorities of the equal protection of the law as euaranerd in

the 14th Amendment to the Constitution.

In just one year, the U.S. Attorney General has:

cent Called for a return to "`voluntary"'

school desegregation, which means that

black children once e again have the "right" to attend "separate but ses public

schools;

e Proposed overturning the statutory prohibition against tax subsidies to

-segregated private schools;

cent Refused to enforce court-ordered remedies for discrimination in federally-

supported employment;

cent Gratuitously advised government agencies that they did not have to adopt pro-

grams designed to eliminate discrimination against minorities and women, despite

sections of the Civil Service Reform Act which legally require the adoption of

precisely such programs;

cent Made an all-out effort to kill the Voting Rights Act. When that failed, he

focused on weakening it to a point just short of extinction; and,

jurisdiction over desegregation cases (among others) by spearheading a strident at-

tack on the court system.

Shattuck on

Civil Rights

The Perfect

Wedding

Present

_ Last month, three ACLU NC-staff

members decided to give a special wed-

ding present to a young couple who

shared the staff's deep concern for civil

liberties. The present they chose was

simple, but very meaningful to everyone

involved - a gift membership in the

ACLU.

The ACLU receives many gift

membership - from _ parents to

children, from friends to friends, from

grandparents to graduates (especially

law school graduates). Last year two

parents gave their newborn an ACLU

Life Membership ($1000).

Each gift membership is announced

to the recipient with a personal card

from the ACLU-NC. The new members

will receive both the northern California

sea

John Shattuck, Director of the ACLU

National Legislative Office in

Washington, D.C. criticized the

Reagan administration for ``not enforc-

ing the law in the civil rights arena, and

in many cases operating outside the 30

year civil rights consensus," when he |

spoke in San Francisco on August 9.

Shattuck participated in a debate with

Bradford Reynolds, head of the Civil

Rights Division of the Justice Depart-

ment, at the American Bar Association

" Conference during the day, and in the

evening spoke to ACLU members and

supporters about victories and setbacks

|= for civil liberties in Washington.

Citing attacks on the judiciary,

reproductive rights, political dissent,

and equal protection, Shattuck

targeted three main causes for the cur-

rent assault on civil liberties - the new

Cold War foreign policy, the economic

recession, and the rise of the New Right

ideology. He called on ACLU members

to build an effective civil liberties lobby

through letter-writing and grassroots

organizing.

ACLU News and the national Civil

Liberties. Most importantly, they

become part of a growing nationwide

civil liberties movement with over a

quarter million members.

Memorial Gifts

Each year, the ACLU also receives a

number of memorial gifts. When a

close friend or respected associate dies,

many ACLU supporters use a memorial

gift to show their esteem for the deceas-

ed individual and their shared support

for the Bill of Rights and the principles

it embodies - principles which must

continue to be vital for many genera-

tions to come.

Each memorial gift is individually

acknowledged and the family is notified

that a gift was made.

Memorial gifts may be sent to

Michael Miller, Associate Director,

ACLU-NC, 1663 Mission S.F., 94103.

Be sure to include your name and ad-

dress, the name of the person you are

remembering, and if you know, the

name and address of a surviving family

member or friend whom you would like

notified of the gift.

aclu news|

aug-sept 1982

Bilingual Ballot Probe

The challenge to U.S. Attorney

Joseph Russoniello's bilingual ballot

probe took a new turn last month when

the ACLU and MALDEF argued in

U.S. District Court that the investiga-_

tion in Monterey County violates the

Voting Rights Act. .

Monterey County is the only county

of the nine covered by Russoniello's in-

vestigation that is covered by Section 5

of the Voting Rights Act. That section

mandates that certain counties and

states which have a history of

discrimination in voting practices must

"preclear'' any changes in their election

procedures with the U.S. Attorney

General or the federal court in

Washington, D.C.

ACLU staff attorney Alan Schlosser

sought an injunction halting the in-

vestigation in Monterey County until

the procedures were precleared and

determined to be nondiscriminatory.

During the hearing, counsel for

Monterey County agreed not to proceed

further with the investigation, or to turn

the results of the investigation thus far

over to the U.S. Attorney until it

decides whether it will submit the in-

vestigation for preclearance.

U.S. District Court Judge Spencer

Williams stated that he will keep the

ACLU motion under submission until

he receives a decision from Monterey

County.

20-Week Rule

continued from p. 3

state agencies have put forward two dif-

ferent interpretations of the law. We

feel that not only is the Attorney

General's opinion clearly wrong, but

that Deukmejian has essentially rewrit-

ten a law which he acknowledges to be

unconstitutional as previously written.

-ibis-is the province of the

Legislature, and, in this case, is

something which the Legislature has

declined to do in the eight years since

the 1973 U.S. Supreme Court decision.

Thus, ironically, the Attorney General

has done something he often accuses

the courts of doing - he has acted as a

super-Legislature.

"We fear that local District At-

torneys will follow the Attorney

General's view rather than the opinion

of the Health Services Department,

because the Attorney General is the

chief law enforcement officer of the

state. This compelled us to bring this

case for a declaratory judgment that the

20-week limitation is invalid, and an in-

junction against enforcement of the

act,'' Crosby concluded. _

-- Victory on the Malls

by Kathy Cramer

The ACLU-NC Shopping Center Pro-

ject made a major breakthrough this

month by finalizing a settlement with

the Taubman Company, a large shopp-

ing mall management firm, allowing

access for political campaigners to five

Bay Area shopping malls. The agree-

ment, negotiated over the past three

months, includes guidelines which

allow petitioners to set up tables inside

the malls where they can display ap-

propriate signs, approach shoppers and

solicit donations. Moreover, the cam-

paigners are not required to post a bond

or pay a deposit.

Martin Fassler, counsel to the Shop-

ping Center Project explained that the

agreement "`basically guarantees for all

groups the rights which our litigation

has protected for individual plaintiffs in

our recent cases against various local

shopping centers."' This is the first such

agreement between a major mall

management firm and the ACLU,

Fassler noted. 2

The five Taubman malls affected by

the new guidelines are Hilltop Mall and

Sun Valley Shopping Center in Contra

Costa County, Stoneridge and

Southland in Alameda County, and

Eastridge in Santa Clara County. In ad-

dition to the provisions cited above, the

guidelines establish a uniform applica-

tion procedure for political groups, and

other free speech activists, stipulate ap-

propriate behavior inside the malls, and

designate particular areas for petition-

ing inside the malls.

The possibility of an agreement with

the giant Taubman Company first

emerged in April when the ACLU

sought an injunction against Southland

Shopping Center on behalf of the

Californians for a Bilateral Nuclear

Weapons Freeze. Alameda County

Superior Court Judge Richard Hodge

suggested that the guidelines which the ~

ACLU was proposing for Southland be

included in a preliminary injunction.

On June 28, Judge Hodge issued the in-

junction, stating that the proposed

guidelines constituted "`reasonable time

place and manner regulations" as pro-

vided under the Pruneyard decision of

the California Supreme Court in 1979.

Fassler said, `"The guidelines are very

workable and are clearly to the ad-

vantage of our clients. The agreement is

very significant, not only because Taub-

man is one of the major shopping center

Tuesday, September 21

7:30 PM

former editor, Daily Californian.

National Legislative Threats To

Freedom of Information

Rm. 260, Building C

Fort Mason, San Francisco

Panelistc include: Richard Criley, ACLU-NC Vice Chair and Northern

California Director, National Committee Against Repressive Legislation;

Larry Hatfield, Vice-President, International Newspaper Guild; Mark

Lappe, author and adjunct professor, U.C. Berkeley, School of Public

Health; Angus McKenzie, freelance journalist; Charles Marson, member

of the Boarc of Directors, ACLU-NC and Stanford Law School professor

specializing in the Freedom of Information Act; Joseph Russionello, U.S.

Attorney for Northern California; and Margaret Talbot, journalist and

In collections

ACLU-NC News: 1982

Details

Title: vol. 47, no. 6 (September, 1982)
Creator: American Civil Liberties Union of Northern California
Date: 1982 August-September
Identifier: ACLUN_0513
Genre: newspapers
Physical description: 40.5 x 28 cm
Publisher: San Francisco (Calif.): American Civil Liberties Union of Northern California
Preferred citation: ACLU of Northern California News vol. 47, no. 6, 1982 August-September; PER ACLUN; California Historical Society.
Rights statement: In Copyright
Publication rights: Copyright (or related rights to publicity and privacy) for materials in this collection, created by the American Civil Liberties Union of Northern California, was not transferred to the California Historical Society (CHS). Permission for reproduction or publication of materials in this collection beyond that allowed by fair use must be secured from the copyright holder.
Topical subject(s): Privacy, Right of
Voting rights
Freedom of information
Educational equity
Criminal justice
Reproductive rights
Affirmative action
LGBTQ rights
Named subject(s): Biggs, Bernice
Cohen, Morton P.
Coles, Matthew
Crosby, Margaret
George Deukmejian
Ehrlich, Dorothy
Gallo, Marcia
Grosboll, Richard
Hitchens, Donna
Honig, Lisa
Henderson, Thelton
Margolin, Ephraim
Marson, Charles
Miller, Michael
Ramey, Drucilla
Riemer, Davis
Schlosser, Alan
Schwartz, Amitai
Warren, Earl
Asian Law Caucus
American Bar Association
Geographical subject(s): Sacramento (Calif.)
Monterey (Calif.)
San Quentin (Calif.)
Santa Rosa (Calif.)
Monterey County (Calif.)
Fresno (Calif.)
Oakland (Calif.)
Berkeley (Calif.)
Collection identifier: PER ACLUN