Because Freedom Cannot Protect Itself
The ACLU is well known for its vigorous efforts to combat police misconduct, but not as well known for its legal advocacy on behalf of police officers. Our criticism of some police officers and departments has led some to conclude that the ACLU is “anti-cop.” Ironically, this misconception actually derives from the ACLU’s commitment to promote good policing. Often, we support good policing simply by defending police officers. Police are, of course, just as entitled to constitutional protection as the rest of us. They also have their rights violated like the rest of us.The ACLU regularly defends officers whose rights to free expression are denied or violated.The ACLU defended officers’ right to religious freedom in a case close to home this year. Officers Faruq Abdul-Aziz and Shakoor Mustafa wear beards in accordance with their Sunni Muslim faith. For this, they were to be fired by the Newark Police Department, which prohibits beards except for those suffering from a skin condition aggravated by shaving.The ACLU of New Jersey filed an amicus brief in support of the two officers and the Fraternal Order of Police position that the dismissal constituted a violation of their First Amendment right to religious freedom. “When the government grants secular exemptions to workplace rules, it should not be able to deny comparable religious exemptions without a compelling reason,” said David Rocah, ACLU-NJ Staff Attorney.
In May 1997, the New York Civil Liberties Union (NYCLU) filed suit on behalf of the Latino Officers Association. The suit challenges a New York (City) Police Department (NYCPD) policy requiring officers to seek and obtain the consent of the Police Com- missioner before speaking publicly about non-confidential matters concerning the Department. The ACLU won a preliminary injunction in federal court ordering the Department to cease enforcing the policy. The City has appealed the decision.
The ACLU of Eastern Missouri recently filed a lawsuit on behalf of a St. Louis Police officer who was suspended without pay for fifteen days after he spoke at a public workshop about racism in the police force. The officer, Dennis McLin, was off-duty and not in uniform when he made the speech, but nonetheless found himself the subject of disciplinary action and harassment.
The ACLU of Michigan successfully represented an Oxford police officer who was sued for defamation by his chief for reporting to public officials that the chief altered a police report. “This case is about one of the most important purposes of free speech in a democracy: the right to criticize government and the actions of government officials,” said ACLU cooperating attorney Neal Bush. The ACLU won a motion to dismiss the suit, Ford v. Miller, in May 1999.
The ACLU of Greater Pittsburgh represented Allegheny County police officer Anton C. Uhl, Jr. in his lawsuit to stop disciplinary proceedings against him for criticizing the depart- ment in a series of letters to the Allegheny County Commissioner.
In a particularly patriotic moment, your ACLU affiliate here in New Jersey advocated on behalf of North Wildwood police officers, war veterans, who were prohibited from wearing flags on their uniforms as symbols of their service. Yes, the ACLU sticks up for police officers, war veterans, and the American flag!
Police officers have also turned to the ACLU when exercising their right to participate in the political process has resulted in retaliation from superiors. The ACLU has represented officers all over the country who have been fired for campaigning for or against elected officials in their chains of command.
A classic example of this kind of case occurred in North Carolina in 1994 when ten Buncombe County deputy sheriffs were terminated for actively supporting the incumbent, at that time their boss. The deputies engaged in political campaigning only while off duty and fully intended to work loyally and cooperatively with their new sheriff. Nonetheless, he fired them on his first day in office. The ACLU lost this one.
We were more successful in Georgia, where, in May 1998, four former sheriffs were awarded $1.25 million in damages. The deputies were fired for not publicly supporting a newly elected sheriff. The jury in the case ruled that the sheriff had violated the freedom of speech and association rights of each of the deputies. In a statement to the press, Marcia Borowski, a cooperating attorney for the ACLU of Georgia said, “The jury found that the job of deputy sheriff should not be subject to political patronage . . . We need professional law enforcement personnel protected from the vagaries of politics.”
Many law enforcement officers and many of those who would join their ranks face discrimination in various forms.
In Southern California, for example, the ACLU is representing a huge class of officers, mostly women, in a class action suit charging that the Los Angeles Police Department (LAPD) discriminates against women-particularly women of color-in hiring, promotion, and assignment.
In April 1997, the NYCLU filed a class action lawsuit challenging the constitutionality of a New York City administrative code that imposes a 35-year old age restriction on candidates for the NYCPD. The NYCLU argued that the age limitation was not a narrowly tailored predictor of job performance and that the age restriction was introduced only after the candidates had completed their written and physical examinations. This July, after settling lawsuits made on behalf of 33 men and 6 women, the NYCPD appointed 39 qualified men and women over the age of 35.
The ACLU of South Carolina filed a discrimination lawsuit on behalf of a nine-year police veteran fired after taking parental leave upon the birth of his first daughter. The ACLU asserts that officials refused to grant the officer parental leave because of his gender and then fired him in retaliation for attempting to exercise his rights.
The ACLU of Maryland represented State Trooper Kevin Knussman in the nation’s first-ever sex discrimination case under a federal medical leave act. Immediately after a court victory and $375,000 award this past February, Knussman was barred from returning to work. His employers’ excuse for the retaliation was that his testimony that he suffered mental distress four years earlier called his mental fitness into question. The ACLU moved to have the State Police held in contempt, and they reversed their position and reinstated Knussman. Officer Knussman’s struggle earned him a personal visit with President Clinton in 1995 to celebrate passage of the Family Medical Leave Act.
Litigation is only one way that the ACLU supports law enforcement. In both Pittsburgh and Maryland’s Eastern Shore, the ACLU launched programs to improve relations between police and community members.
Allegheny Police Association president Jim Hasara summed up a feeling shared by many law enforcement officials—”Just because we are police officers doesn’t mean that we gave up our constitutional rights.” Let the record show that the ACLU supports liberty and justice for all.
Reprinted with permission of ACLU of New Jersey
Copyright 2006, American Civil Liberties Union of New Jersey
P.O. Box 32159, Newark, NJ 07102