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Sep272011

Case Study: Day Laborers and the Right to Roadside Job Hunting

Case Study: Day Laborers and the Right to Roadside Job Hunting

By Adam Cohen Monday, s Sept. 26, patient 2011 | Source: search 8599,2094846,00.html” target=”_blank”>Time.com

 

Case Study: Day Laborers and the Right to Roadside Job Hunting

Day laborers, like these in Van Nuys, Calif., are facing crackdowns in several U.S. cities. Armando Arorizo / Bloomberg News

Do day laborers have a right to stand along the highway to offer themselves to would-be employers? Communities in states from California to Connecticut have been cracking down on these roadside gatherings. But a powerful federal appeals court this month overturned a ban in Redondo Beach, Calif., on soliciting work from passing cars.

In a 9-2 ruling by the San Francisco–based Ninth Circuit Court of Appeals, the judges in the majority declared that the ban is an unconstitutional restriction on free speech. The dissenting judges defended Redondo Beach’s right to keep order on its streets.

Day-laborer lines have become a familiar sight across the country. Workers, almost all of them men and many of them Mexican immigrants, stand alongside highways and streets hoping to be chosen for construction work or other manual labor. In 1987, Redondo Beach — prodded by complaints about day-laborer lines — made it illegal “to stand on a street or highway and solicit … employment, business or contributions from an occupant of any motor vehicle.” In 2004, the city ramped things up by creating the Day Labor Enforcement Project, in which police posed as potential employers and arrested day laborers who asked for work. As many as 50 cities in California have bans like the one in Redondo Beach, according to a lawyer for the Mexican American Legal Defense and Educational Fund. But the question of whether day laborers should be allowed to solicit work on the side of the road is hardly a West Coast–only issue. On New York’s Long Island, there have been crackdowns on day laborers that critics say amount to criminalizing “waving while Latino.” In March, Danbury, Conn., agreed to a $400,000 settlement with day laborers who complained that their 2006 arrests, the result of a police sting, were illegal and constituted racial profiling.

Advocates for day laborers sued Redondo Beach, charging that the law infringed on the free-speech rights of the workers and prospective employers, effectively making it a crime for people to seek work. The appeals court agreed. The law is also so broad, the majority ruling held, that, in certain locations, it could make it a crime for concerned citizens to raise money for a disaster-relief fund, for Girl Scouts to sell cookies outside their school or for children to have a lemonade stand outside their home.

Chief Judge Alex Kozinski issued a strongly worded dissent, along with one other judge, that described the ruling striking down Redondo Beach’s law as “folly.” Kozinski argued that day laborers who lined up for work created real problems by littering, vandalizing, harassing women and generally making a nuisance. Municipalities have a right, he wrote, to “se the safety, beauty, tranquility and orderliness of neighborhoods.” In a rhetorical flourish, the chief judge declared that the majority was “demonstrably, egregiously, recklessly wrong.” And in case anyone wasn’t quite sure how he felt about the matter, he added, “If I could dissent twice, I would.”

As entertaining as the dissent is to read, however, the Ninth Circuit got it right on the law. Ordinances like the one in Redondo Beach unconstitutionally restrict people from engaging in free speech in public places. People have a right to stand by the road and offer to work, and people in cars have a right to ask people on the roadside if they want a job. It is core First Amendment expression.

If city officials are concerned about the litter, vandalism and harassment that the dissenters pointed to, they should be sure that they have strong laws against these things, and they should enforce them.

There is, of course, a lot more going on in these battles over day laborers. As the Danbury settlement suggested, race and ethnicity roil below — often barely below — the surface, along with views on immigration policy. Critics of the street-side bans say that if the day laborers lining up for work were U.S.-born whites, the laws either would not exist or would not be enforced.

Day-laborer lines are a Rorschach test. Some people look at them and see foreigners who are making a mess of tidy neighborhoods and threatening public safety. Other observers see the lines as filled with well-meaning people, many of them fathers and husbands, willing to work hard — often for little pay — to be able to food and provide shelter for their families. First Amendment issues aside, which vision people have of the men by the road is likely to explain whether they want the bans to survive or to be struck down.

Cohen, a former TIME writer and former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday. You can continue the discussion on TIME’s Facebook page and on Twitter at @TIME.

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Sep272011

Court overturns day laborer ruling

Court overturns day laborer ruling

Source: EasyReaderNews.com | September 22nd, 2011 by Mark McDermott filed in Redondo Beach

Court overturns day laborer ruling

A six year legal battle that began with the arrests of day laborers along Artesia and Manhattan Beach boulevards added another chapter as the Ninth Circuit "en banc" panel weighed in last week. Photo by Mark McDermott

An eleven-judge panel of the Ninth Circuit federal appeals court last week ruled that a Redondo Beach ordinance aimed at curtailing day laborers soliciting work on city streets was unconstitutional in a vehemently contested 9-2 decision. A strongly worded dissent by Chief Judge Alex Kozinski that begins with the words “This is folly” signaled that the case is a candidate for U.S. Supreme Court review [See majority opinion and dissent].

The Court, site which met in a relatively rare “en banc” gathering to hear the case in March, overturned an earlier decision by a three member Ninth Circuit panel, overruling its own precedent-setting upholding of a 25-year-old ordinance enacted by the city of Phoenix. Redondo’s law ordinance was a word-for-word copy of the Phoenix ordinance.

Judge Milan Smith, the author of the majority opinion, wrote that Redondo’s ordinance went beyond “time, place, and manner of expression” limitations of First Amendment freedom of speech rights the Supreme Court has deemed allowable to protect a government’s interest.

Smith sided with the plaintiff, a national day laborer organization called Comite de Journaleros, in arguing that the ordinance “technically appl[ies] to children selling lemonade on the sidewalk in front of their home, as well as to Girl Scouts selling cookies on the sidewalk outside of their school,” as well as “to a motorist who stops, on a residential street, to inquire whether a neighbor’s teen-age daughter or son would be interested in performing yard work or babysitting.”

“The Ordinance is not narrowly tailored because it regulates significantly more speech than is necessary to achieve the City’s purpose of improving traffic safety and traffic flow at two major Redondo Beach intersections, and the City could have achieved these goals through less restrictive measures, such as the enforcement of existing traffic laws and regulations,” Smith wrote.

Kozinski, who is also an essayist whose work has appeared in the New Yorker and the National Review, vigorously attacked the majority opinion in an unusually entertaining, freewheeling dissent. He took particular aim at what he called the majority opinion’s “parade of horribles” in its challenge that the ordinance was overly broad. “The judicial imagination can always run wild in conjuring how laws can be misapplied, but the Supreme Court instructs us that ‘the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge,’” Kozinski argued.

“There is no evidence that the city has ever enforced, threatened to enforce or dreamt of enforcing the ordinance against sidewalk food vendors, tyke lemonade moguls, Girl Scout cookie peddlers, high school car washers, disaster relief solicitors or middle-aged men cruising neighborhoods looking to pick up teenage girls from their front yards,” Kozinski wrote.

“The majority is demonstrably, egregiously, recklessly wrong,” Kozinski added. “If I could dissent twice, I would.”

City Attorney Mike Webb likely has a new favorite author in the chief judge. Webb, who has defended the city’s ordinance (enacted by City Council in 1987) since it was first legally attacked in 2004, said the vehemence of the dissent was clearly intended as a signal to the Supreme Court. He said it perfectly articulated everything he thought was in error in the majority’s opinion.

“You just don’t expect this in a dissent,” Webb said. “And it was everything you think, as a lawyer, when you read something that is so wrong but would never dare say – but he’s Chief Judge, so he can say it.”

The city’s anti-solicitation ordinance was enacted by the City Council in 1987 but didn’t draw legal fire until it was enforced in 2004 with police sting operations that led to the arrests of 69 day laborers and a handful of contractors who sought to hire them. The city said it was responding to complaints from residents and businesses near two spots in the city where day laborers congregate to look for work, near the intersections ofArtesia Boulevard. andFelton LaneandManhattan Beach Boulevard near Inglewood Ave.

Webb said he particularly agreed with Kozinski’s assertion that the court’s ruling undercuts city’s ability to govern itself and address public safety problems associated with the day laborer gatherings.

“The bottom line is that city officials, after years of effort, found existing tools inadequate or too expensive to rid the city’s streets of day laborers,” Kozinski wrote. “Appointing themselves as a Super City Council, my colleagues – who need not answer to the voters – decide that they know how to run Redondo Beach better than its elected officials.”

Webb said the only other tool that had proven effective was Immigration and Naturalization Service (I.N.S.) sweeps, which in themselves create public safety hazards because illegal workers often flee into the streets.

“If we don’t get Supreme Court review, we don’t have any effective tools to address this,” Webb said.

The Mexican American Legal Defense and Education Fund, which has provided the laborers’ defense, has long argued that the city is in effect trying to kick day laborers out of Redondo Beach. MALDEF president and general counsel Thomas Saenz, who argued the case, called the victory a vindication of First Amendment rights for day laborers that would set a precedent throughout the nation.

“The dozens of similar ordinances throughout the region that purport to prevent day laborers from speaking on sidewalks are now even more plainly violative of the Constitution,” Saenz said in a statement. “Each municipality with such an ordinance should immediately suspend and repeal its law. The longstanding principle that the right of free speech belongs to everyone has been significantly bolstered by this decision.”

MALDEF staff attorney Nicholas Espiritu said the fact that an en banc panel majority of nine judges found the ordinance unconstitutional makes it less likely to be reviewed by the Supreme Court.

“We think the fact that an overwhelming majority of the Ninth Circuit held the statute to be unconstitutional is an indication,” Espiritu said. “…We think the majority got the legal analysis correct, and we don’t feel there is a big controversy here. There isn’t a circuit split. We doubt the Supreme Court would take the case if Redondo Beach sought to petition.”

Pablo Alvarado, Executive Director of National Day Laborer Organizing Network (NDLON), said the decision is the culmination of a two-decade long struggle.

“The ordinances were intended to render day laborers invisible, but the struggle against these ordinances has made day laborers more visible, more powerful,” Alvarado said. “For the past two decades, the ordinances have stigmatized day laborers as criminals – now they are civil rights leaders. So this victory is not just for them, it is for every American – a victory achieved by humble people for everyone.”

The city has 90 days to seek review of the ruling.

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Day laborer ban struck down

September 21, click 2011 | Source: Associated Press

A divided federal appeals court Friday struck down Redondo Beach’s ban on day laborers who stand on public sidewalks soliciting work from motorists.

Judge Milan D. Smith Jr., writing for the nine-judge majority of the special 11-judge panel of the 9th U.S. Circuit Court of Appeals, said Redondo Beach’s ordinance violated the workers’ free speech rights and was so broad that it also made it illegal for children to shout “car wash” to passing drivers.

Smith said the ordinance “regulates significantly more speech than is necessary to achieve the city’s purpose of improving traffic safety and traffic flow at two major Redondo Beach intersections, and the city could have achieved these goals through less restrictive measures, such as the enforcement of existing traffic laws.”
City Councilman Matt Kilroy, who represents the council district where day laborers congregate on Manhattan Beach Boulevard, called the court’s ruling “amazing.”

“This is not a day laborer law,” Kilroy said. “This is a public safety law that has to do with soliciting vehicles from the sidewalk from public areas and the traffic hazards it causes.”

Redondo Beach City Attorney Michael Webb said he would consult with the City Council and mayor to decide whether to ask the U.S. Supreme Court to consider the case.

A three-judge panel of the San Francisco-based appeals court originally upheld the ban, but the specially convened panel of 11 judges voted 9-2 to overturn the earlier decision.

Judges Alex Kozinski and Carlos Bea dissented.

“This is folly,” wrote Kozinski, who noted that as many as 75 workers often would congregate at a busy intersection.

“As might be expected when large groups of men gather at a single location, they litter, vandalize, urinate, block the sidewalk, harass females and damage property,” Kozinski wrote. “Cars and trucks stop to negotiate employment and load up laborers, disrupting traffic.”

Kozinski said it was the city’s duty to protect its residents from such nuisances.
“Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering, streets are used as thoroughfares rather than open air hiring halls and bushes serve as adornment rather than latrines,” Kozinski said. “The majority is demonstrably, egregiously, recklessly wrong. If I could dissent twice, I would.”

Redondo Beach officials enacted the ban because they said the workers were interfering with traffic and pedestrians.

Kilroy said residents continue to question, “Why aren’t you doing something about this?”

“It’s something we get a lot of concern about from the citizens of Redondo Beach,” he said. “It still remains a safety concern. It’s not safe to solicit cars that come to a screeching halt in the public right-of-way. That’s really what this ordinance is all about.”

Redondo Beach officials were ordered to suspend enforcing the law in 2004 until a workers’ lawsuit against it was resolved.

Thomas Saenz, a Mexican American Legal Defense and Educational Fund lawyer who represented the workers, said the court’s ruling against Redondo Beach most likely will put an end to similar bans in other western cities, including about 50 in California.

“It calls them all into very serious question,” Saenz said. “Each municipality with such an ordinance should immediately suspend and repeal its law.”

Pablo Alvarado, director of the National Day Laborer Organizing Network, said the Redondo Beach ban and the dozens that followed were intended to “to render day laborers invisible.”

“For the past two decades, the ordinances have stigmatized day laborers as criminals — now they are civil rights leaders,” Alvarado said.

The ruling also struck down a Phoenix law prohibiting the political action group ACORN from soliciting donations from motorists stopped at red lights. Redondo Beach based its ban on the Phoenix law.

Kilroy said the city’s ordinance did nothing to stop a motorist from pulling into a private parking lot and entering into a transaction with a day laborer. It addressed only the public street.

Larry Altman contributed to this article.

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Arturo Venegas Sets Example for Failed DHS Taskforce. Resignation Makes Former Sacramento Chief Hero in Immigrant Communities

Washington DC.
See Complete Report Here: http://altopolimigra.com/s-comm-shadow-report/
After a firestorm of controversy over the Se Communities deportation program (or “SCOMM”), a committee charged with providing recommendations to the Department of Homeland Security has failed to reach consensus with taskforce members beginning to resign.
Sarahi Uribe of the National Day Laborer Organizing Network praised the first to resign, “”Arturo Venegas is setting the example and leading the way for taskforce members to match the courage of those who stood up at taskforce hearings calling for an end of the program. His resignation today makes him a hero in the immigrant community.”
The Se Communities Task Force was widely viewed as an effort by DHS to dampen growing criticism of the discredited program rather than an earnest attempt to seek input from the program’s detractors. In contrast to the DHS task force, a broad coalition of experts achieved complete consensus in a shadow report recommending the complete termination of SCOMM.
Chris Newman, Legal Director of the National Day Laborer Organizing Network issued the following statement:
“Rather than sweep SCOMM’s catastrophic flaws under a rug, the administration should end the program. DHS has used unprecedented deception to sell a dangerous program to the American public, and its use of this task force is no different. It is clear DHS set the task force up as a ruse to cover up its colossal failure, but it didn’t work.
“The task force report will only lead to more controversy over SCOMM as questions are raised about why it couldn’t achieve consensus, and as everyone now watches to see whether the White House will finally hold DHS accountable.
“S-Comm is leading to the ‘Arizonification’ of the United States. Immediate suspension pending a genuine review by the Inspector General will be required to regain public trust in DHS. An end to the program will be required to advance the goal of immigration reform.”
Background on Parallel Report:
“The Se Communities program should be ended,” is the central recommendation of a report authored by broad coalition of prominent local and national immigrant rights group and endorsed by over 150 organizations. The report, which features the voices of law enforcement, judges, academics, and directly impacted individuals, chronicles the deception of Immigration and Customs Enforcement uncovered through FOIA litigation, local organizing, and advocacy. The report clearly lays out demonstrable negative impacts SCOMM has had on community safety and civil rights.
For example, Ron Hampton president of Black Law Enforcement in America writes in the report, “Opposition to Se Communities “is rooted in common sense: counties and states across the country rely on the relationships of the communities they serve to combat and solve crime. It is foolish to sever this tie in order to enforce civil immigration law.”
Echoing the concerns of other law enforcement officials and experts, Robert Morgenthau, former New York City District Attorney, wrote in the report, “When immigrants perceive the local police force as merely an arm of the federal immigration authority, they become reluctant to report criminal activity for fear of being turned over to federal officials.”
The report also included the testimony of Joaquin, a resident of Homestead, Florida who was wrongfully arrested and assaulted by police and now faces deportation because of the Se Communities program. He wrote, “I never committed a crime but now I am facing going back to my country. My plans, my dreams, everything was changed.
Background on the Se Communities Task Force:
The task force has been discredited by the immigrant rights movement since its inception. Shortly after its creation 200 organizations, including civil rights groups, labor, faith as well as some law enforcement leaders sent a letter to John Morton, ICE’s director, on July 20th raising concern about the scope of the task force, its lack of transparency, and its inadequate process to review the program in light of the pending Department of Homeland Security Office of Inspector General audit. Groups urged ICE to immediately suspend the program.
A second letter with over 160 groups was sent to the task force asking them to resign following the August 5th, announcement by ICE that the agency would unilaterally terminate all agreements and impose the program on all cities and states despite objections that the program damages public safety and the decisions of Illinois, New York, and Massachusetts to not participation in the program. (attached) The agency’s shift to make the program an unfunded mandate after two years of operation and over 43 Memorandums of Agreements signed with states (they included termination clauses), defied basic democratic principles and further exposed the agency as rogue and lacking any regard for the “nation’s courts, local and state law-makers, law enforcement, and communities—much less this task force.”
At community hearings held this summer by the task force in Dallas, Los Angeles, Illinois, and Arlington, Virginia the members were met with massive protests, walk outs, acts of civil disobedience, and calls to resign from the “sham” task force and to end the program.
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Nationwide Actions Condemn E-Verify Program as Direct Attack on Immigrants, Workers and the Economy

New York, NY: Community leaders, small business owners, and workers are participating in a nationwide day of action to speak out against H.R. 2164, legislation presented by Texas Congressman Lamar Smith, which would make the E-Verify program mandatory for nearly every employer in the United States. This legislation is expected to be taken up by the House Judiciary committee for markup at the end of this week.

Mandatory E-Verify is a jobs killer. It is bad for working people, bad for business and bad for the economy. If Congress mandates the use of E-Verify, forcing every business in the country to screen every employee with an error-ridden Department of Homeland Security computer database, over one million workers will likely lose their jobs. Industries like agriculture that rely on immigrant workers will be devastated, while small businesses will be taxed by having to shoulder the significant costs necessary to implement the computer system.
Anti-immigrant extremist politicians in Washington champion E-Verify and the bill has been a key component of notorious anti-immigrant hate legislation at the state level, like HB 56 in Alabama. While the United States has historically been a nation of immigrants, E-Verify panders to a vocal anti-immigrant minority that has dominated the immigration discussion.
Local actions point out that E-Verify will hurt all businesses and the fragile economy, and will leave workers more vulnerable to abuse on the job by giving unscrupulous employers yet another tool to use against workers who try to stand up for their rights.
“The truth is that E-Verify is a jobs killer and that the system needs to be fixed. We need comprehensive solutions to raise wages for our workers, make sure they work in good conditions, and ensure that everyone is on a level playing field,” said Jaime Contreras, SEIU 32BJ District Chair.
Small business owners are joining local actions because E-Verify will place a significant burden on small businesses, raising their costs even as they are struggling in this economy. Almost every business—no matter how small—will be forced to implement this complicated system. For many small businesses, many of which can’t afford a human resources department, this could be disastrous. The estimated cost to small businesses is $2.6 billion, according to Bloomberg News. More than 770,000 citizen and legal workers will wrongly be marked as ineligible for work due to errors in government databases.
“This E-Verify proposal is bad for small businesses, bad for our workforce, and bad for the country’s bottom line,” said small business owner David Borris. “We need the U.S. Chamber to listen to small business, and withdraw its support for this flawed proposal. Why is the Chamber nibbling around the margins and accepting a piecemeal non-solution that will have a serious negative impact on small businesses?”

Participating localities include: Austin, Texas; Boston, Massachusetts; Washington DC; and Long Island, New York.
Coordinated by National Day Laborer Organizing Network, National Immigration Law Center, Jobs with Justice, National Employment Law Project and the Service Employees International Union.
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Se Communities Scrutiny Expands to FBI

Washington, DC. Yesterday, on the tenth anniversary of September 11th, 70 civil rights, immigrants’ rights, and privacy rights groups sent a letter calling on the Department of Justice (DOJ) to investigate the FBI’s role in the controversial Se Communities deportation program (S-Comm) and the Next Generation Identification (NGI) initiative. The letter urged an immediate Inspector General audit of both programs.

Documents obtained through Freedom of Information Act litigation by the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Cardozo Immigration Justice Clinic revealed that S-Comm is the first step in NGI, an unprecedented, billion dollar initiative to create the world’s largest biometric database. NGI will expand on S-Comm by forcing greater collection and dissemination of personal information between federal agencies, without the consent of the states that provide the information. NGI will also expand the types of information collected to include iris scans, palm prints, and facial recognition scans, along with the traditional fingerprints. Both NGI and S-Comm have their roots in the post-September 11th expansion of domestic surveillance and corresponding weakening of privacy protections.
Chris Newman, Legal Programs Director at the National Day Laborer Organizing Network said: “An unfortunate legacy of 9/11 is the onset of a culture of suspicion that conflated fear of terrorists with fear of immigrants. Secretive and misguided programs like S-Comm contributed to this pernicious fear of newcomers. Ten years after 9/11, there is now a vibrant national discussion about how to preserve security without jettisoning core constitutional values. While many may disagree about how to strike an appropriate balance, we can all agree transparency from the very agencies charged with keeping us safe is absolutely essential. The Department of Justice Office of Inspector General must immediately audit the FBI’s role in S-Comm and the so-called Next Generation Identification Initiative.”
Jessica Karp, Staff Attorney with the National Day Laborer Organizing Network said: “S-Comm has been plagued with problems since it began. ICE is now under investigation for lying to Congress, states, and localities about the program’s scope and the role of state and local partners. Illinois, New York, Massachusetts, and many of the nation’s largest cities have said they want no part of S-Comm. They are concerned that it undermines public safety while encouraging pretextual arrests and racial profiling. An investigation of the FBI’s role in this controversial program is urgently needed. The Inspector General must also investigate the extent to which the problems associated with S-Comm are common to the Next Generation Identification initiative as a whole.”
Letter to DOJ available for download at http://ndlon.org/pdf/dojletterfinal.pdf
Appendix available for download at http://ndlon.org/pdf/dojletterappendix.pdf
More information available at http://uncoverthetruth.org
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