CREECblog

Welcome Sam!

CREEC is excited to welcome our intern Sam Gerelman!Image: Fair skin, brown haired woman with hoop earrings smiling at the camera

Sam is a rising 3L at Stanford Law School. At SLS, she has been the Academic Chair for the school’s inaugural First-Generation Professionals group, Co-President of Law Students for Disability Rights, Outreach Vice President for Stanford If/When/How, a Board Member and Pro Bono Volunteer for the Social Security Disability Project, a Stanford First Generation Mentor, and a Public Interest Mentor and Fellow. She also participated in a policy lab related to Developmental Disabilities Waiver funding in California and was a full-time clinical student with the Youth and Education Law Project. She graduated from the University of Iowa in 2016 and spent last summer at the Center on Reproductive Rights and Justice at Berkeley Law. In her free time, Sam loves to hike, do yoga, and hang out with her partner and cat.

Welcome back Marième!

CREEC is excited to welcome back our extern-turned-paralegal Marième DiopImage: headshot of an African-American woman with short hair pulled back; wearing a stripped shirt.!

Marième is a paralegal in our Colorado office. Marième graduated from Swarthmore College with a B.A in Psychology and Spanish. After externing at CREEC in January and February 2017, she decided to pursue a career in law. During her time at Swarthmore, she became interested in issues of racial justice and immigration, interning with the Nationalities Service Center in Philadelphia. She is thrilled to work at CREEC again not only because they have an excellent dog to person ratio in the office, but also because she is excited to work on issues she is passionate about. When not in the office, Marième can be found playing the ukulele, traveling, or hiking.

We’re very excited to have her back in our office!

News Release: Major milestone reached in making Portland’s streets and sidewalks more accessible

(June 5, 2018) The Portland Bureau of Transportation announced a major milestone in the City’s efforts to make Portland’s streets and sidewalks more accessible to people with mobility disabilities.

Yesterday, United States District Court Judge Marco Hernandez issued a preliminary approval of the settlement in Hines, et al. v. City of Portland. The class action seeks to ensure that the City’s corners are ADA compliant.

The City of Portland has over 38,000 corners. Approximately 11,000 corners do not have curb ramps. Many other corners have ramps that do not meet current ADA standards.  Corners that do not have ADA compliant curb ramps represent a significant barrier to safe and convenient mobility for people with mobility disabilities.

This landmark settlement will take a major step forward in correcting this situation. According to the settlement’s terms, the City of Portland has agreed to construct and/or upgrade 1500 curb ramps per year for the next twelve years for a total of 18,000 ramps. The City has also agreed to survey all ramps in the next two years and establish a Transition Plan to map out how the City will ensure accessibility.

“We have nearly 40,000 corners in Portland,” said Transportation Commissioner Dan Saltzman. “Each corner is an opportunity. With the correct curb ramps, each of these corners represents a chance for our city to provide safe and accessible mobility to for all Portlanders regardless of whether they are living with a disability or not. That is why I am so supportive of this settlement. Thanks to this settlement, we will double the number of ADA compliant curb ramps we build each year and do a better job of putting our values of fair and safe access for all into practice.”

“Under this settlement, the City of Portland will make substantial improvements to the accessibility of its pedestrian right of way for residents and visitors with mobility disabilities by installing and upgrading about 18,000 curb ramps over the next 12 years – double the rate of recent installations and upgrades,” said Plaintiffs’ counsel Linda Dardarian of Goldstein, Borgen, Dardarian & Ho. “This settlement was achieved collaboratively without a lawsuit, and has built a relationship of trust and open communication between representatives of the City and the community of people with mobility disabilities that will last for many years to come.”

“Federal and state disability access laws were enacted decades ago to provide persons with disabilities an equal opportunity to fully participate in civic life,” said Tim Fox, claimants’ counsel and co-founder of the Civil Rights Education and Enforcement Center.  “Today, we stand together with the City of Portland to fulfill the promise of those laws by ensuring that people with disabilities can travel independently throughout their communities.  Inaccessible curb ramps prevent persons with disabilities from being fully integrated in their communities.  This settlement goes a long way toward addressing those issues in that it will result in new ramps being put in at corners where there are no ramps and it will result noncompliant ramps being brought into compliance.  This settlement will make Portland accessible to all persons regardless of disability and means a tremendous amount to me as a person with a disability who has come to love this city.”

Portland resident Tess Raunig, one of the Plaintiffs in the case, said, “Nonexistent and noncompliant curb ramps have made it hard for me to move freely around my neighborhood or to get to know my neighbors, and have even put me at risk of falling out of my wheelchair into the street.  This settlement will prevent other people from having to experience that, and is a blessing for residents and visitors with disabilities.”

“This settlement means a lot to me and to persons with disabilities who want to live independently in our community,” added Portland resident Allen Hines, another Plaintiff.  “There are several neighborhoods in this City where it is nearly impossible for a person in a mobility device to navigate the neighborhood.  I am hopeful that with this settlement, we will make all of our neighborhoods in Portland accessible to people with mobility disabilities.”

People with disabilities are the largest minority group in the country – census figures estimate that 56.7 million, or 1 in 5, Americans have a disability.

With the preliminary approval granted, the members of the class will be notified of the settlement. At a subsequent hearing, a judge will rule on the final status of the settlement. This hearing is anticipated to take place September 24, 2018.

News media contacts:

John Brady
Portland Bureau of Transportation
(503) 577-8236
john.brady@portlandoregon.gov
@pbotinfo

Linda Dardarian
Goldstein, Borgen, Dardarian & Ho
(510) 763-9800
ldardarian@gbdhlegal.com

Timothy Fox
Civil Rights Education and Enforcement Center
(303) 757-7901
tfox@creeclaw.org

Welcome Ana!

CREEC is very excited to announce our newest paralegal!

Ana Diaz is a paralegal in our Colorado office. She graduated summa cum laude with a B.S. from the School for Conflict Analysis and Resolution at George Mason University, where she also served as a Peacebuilding Fellow. While studying at George Mason, Ana became passionate about building a world that accommodates everyone while expanding ideas of what it means to be a valid human being. She sees civil rights law as a way to build a world free of discrimination. In her spare time, Ana can be found wandering through bookstores, baking cakes, or hiking.

We’re very excited Ana has joined us!

[Image of a woman with short dark hair and glasses in a dark shirt standing against a grey background.

CREEC and SPLC Send Letter Urging Etowah County Officials to Make Outdoor Recreation Available to ICE Detainees As Part of Jail Renovations

FOR IMMEDIATE RELEASE
Thursday, March 8, 2018

Civil Rights Groups Urge Etowah County Commission and Sheriff to Include Outdoor Recreation Access in Detention Center Renovations

Holding detained immigrants inside for months, even years without access to fresh air and sunlight may violate their constitutional rights

GADSDEN, Ala. — The Civil Rights Education and Enforcement Center (CREEC) and the Southern Poverty Law Center (SPLC) sent a letter today to the Etowah County Commission and Etowah County Sheriff, urging officials to include outdoor recreation for immigration detainees in renovation plans for the Etowah County Detention Center (ECDC).

The ECDC, located in Gadsden, Alabama, holds about 300 detained immigrants under a contract with the U.S. Marshals and Immigration and Customs Enforcement (ICE) agencies. The existing facility does not provide detainees with access to outdoor recreation, which means that some detainees spend months, or even years, without going outside. Etowah County is considering renovations to the ECDC, but the plans do not appear to include outdoor recreational space.

The lack of outdoor recreational space implicates the due process rights of detainees under the U.S. Constitution, the letter says. “Not only do immigrants detained by ICE have a constitutional right to outdoor recreation while they are held at ECDC, access to physical activity, sunlight, and fresh air is crucial to their well-being,” Tim Fox, co-executive director of CREEC, said. “There is no reason the sheriff and the county cannot make outdoor recreation available to ICE detainees as part of their other changes to the facility.”

ICE’s own Performance Based National Detention Standards state that facilities should provide at least one hour, and preferably at least four hours, of access to outdoor recreation and that detainees in facilities that do not meet this standard may request a voluntary transfer to another detention center.

“The fact that the county would undertake renovations to the Etowah County Detention Center without adding access to outdoor recreation demonstrates their indifference both to the experiences of the immigrants in their custody and to the standards that govern that custody,” said Lisa Graybill, deputy legal director at the SPLC.

“If the county facility cannot meet ICE’s standards, Etowah County should not be entrusted with detainees, and ICE should place them elsewhere.”

Read a copy of the Letter here.

SPLC and other groups issued a report, Shadow Prisons: Immigrant Detention in the South, on conditions, including this issue at Etowah.

 

ADA Defense Abuse: A Case Study

ADA Defense Lawyers Prolong Litigation and Postpone Access:  A Case Study of Litigation Abuse

 Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination by private businesses.  Lawyers who defend noncompliant businesses argue that their opposing counsel — lawyers who represent people with disabilities seeking to enforce their rights — engage in litigation abuse.  They are lobbying for passage of H.R. 620, a bill that would add the requirement of a specifically-worded demand letter and four-month waiting period before a disabled person could enforce their rights.

This case study of ADA defense litigation abuse suggests that ADA defense counsel are already guilty of prolonging litigation, postponing access, and ultimately enriching themselves at the expense of both the businesses they represent and the people with disabilities who continue to be denied access 28 years after the ADA was passed.

H.R. 620’s requirement of a demand letter will remove any incentive for voluntary compliance and will add a new round of motions for ADA defense attorneys to file — challenging the wording, content, and specificity of the demand letter — on top of the already unconscionable litigation delay that is their standard practice.

To demonstrate the opportunities for delay in which ADA defense counsel typically engage, we looked at a case that a group of retail trade associations held up as a typical Title III case.  In a recent amicus brief to the Third Circuit, lawyers for the National Association of Convenience Stores, the National Grocers Association, and the Food Marketing Institute singled out the case of Heinzl v. Cracker Barrel Old Country Store, Inc., No. 14-cv-1455 (W.D. Pa. May 12, 2017) for their anti-ADA invective.

We took a closer look at the Cracker Barrel case and discovered that it presented a fairly typical example of ADA defense lawyer abuse.  The case alleged that a chain of fast food restaurants had noncompliant parking lots.  Instead of assessing and remedying these violations, Cracker Barrel’s attorneys — including several known for their serial defense of hundreds of ADA lawsuits and for proactively work against enforcement of Title III — prolonged the litigation for two and a half years with multiple, meritless motions and obstruction.

Cracker Barrel’s seven lawyers took the following actions in litigation, all of which were unsuccessful.  These lawyers’ abuse of the system is perhaps best illustrated by the fact that Cracker Barrel admitted, 14 months into the case, that “the subject properties contained barriers to access that were in need of remediation,”[1] yet continued to litigate for another year.

During the course of the litigation, Cracker Barrel and its attorneys:

  1. moved unsuccessfully to dismiss the case, ECF 10, 14, 15;[2]
  2. objected unsuccessfully to the magistrate’s ruling denying their motion to dismiss, ECF 16, 19, 23, 35;
  3. moved unsuccessfully for a protective order to prevent site visits by the plaintiff, ECF 20, 24, 26, 36;
  4. moved unsuccessfully for a protective order to limit the scope of the plaintiff’s deposition of defendant’s most knowledgeable representative, ECF 30, 37;
  5. refused to engage in class-wide discovery, requiring plaintiffs to file a successful motion to compel, ECF 27, 29, 36;
  6. moved unsuccessfully to stay the litigation, ECF 32, 37;
  7. refused to comply with the order granting the plaintiff’s motion to compel class-wide discovery, see ECF 41-2, requiring the plaintiff to move for sanctions, ECF 41, 43, 44; while the court did not impose sanctions, it imposed a deadline by which Cracker Barrel would have to produce class-wide discovery, ECF 47;
  8. moved unsuccessfully to compel discovery from the plaintiff, ECF 55, 60, 62;
  9. moved prematurely — and ultimately unsuccessfully — for summary judgment, ECF 64, 100, 105, 106, 113, in response to which the plaintiff moved successfully for additional discovery, ECF 74, 82;
  10. moved unsuccessfully to stay all proceedings pending ruling on its summary judgment motion, ECF 71, 78, 81, 82;
  11. unsuccessfully objected to the magistrate’s recommendation to deny its summary judgment motion, ECF 116, 126;[3]
  12. withheld ADA surveys of challenged facilities requiring plaintiff to file a successful motion to compel, ECF 76, 85, 87, 93;[4]
  13. moved unsuccessfully for a third protective order, ECF 91, 92, 96;
  14. unsuccessfully opposed the plaintiff’s motion for class certification, ECF 103, 108, 110, 113;
  15. unsuccessfully objected to the magistrate’s recommendation to grant the motion for class certification, ECF 116, 119, 123, 126;[5]
  16. unsuccessfully petitioned the Third Circuit Court of Appeals pursuant to Rule 23(f) to challenge class certification; and
  17. unsuccessfully moved — for a third time — to stay proceedings pending resolution of its Rule 23(f) petition, ECF 131, 134;
  18. unsuccessfully objected to the magistrate’s recommendation to deny the stay, ECF 135, 136, 137.

The case was filed in October, 2014, demanding that Cracker Barrel bring its parking lots into compliance with the ADA.  ECF 1.  In May, 2017, after all of the motions and maneuvers listed above, Cracker Barrel agreed to precisely this relief:  that it would survey it stores and bring the parking lots into compliance with the ADA.  ECF 163-1. In the meantime, people with mobility disabilities went another two and a half years without accessible parking, and Cracker Barrel’s lawyers billed their client for the time spent drafting and filing 21 separate briefs in pursuit of this campaign of delay. 

H.R. 620 will add yet another layer of process — another hoop to jump through — before people with disabilities can have the access guaranteed them when the ADA was passed in 1990.  It will also add to the list above another motion that ADA defense counsel can be paid to file.

The above Case Study is available in MS Word here.

The above Case Study is available in PDF here.

——————————-

[1] See Heinzl v. Cracker Barrel Old Country Stores, Inc., No. 2:14-cv-1455, 2016 WL 2347367, at *11 (W.D. Pa. Jan. 27, 2016).

[2]  The numbers following each item refer to the docket numbers in the PACER Electronic Case Filing system, www.pacer.gov.  All substantive filings related to each item are listed, including motions and orders.

[3] Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016).

[4]  Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2015 WL 6604015 (W.D. Pa. Oct. 29, 2015).

[5]  Heinzl, 2016 WL 1761963.

 

CREEC Files Lawsuit Demanding DHS and ICE Documentation of Conditions at Immigration Detention Centers

Lawsuit Filed Demanding Homeland Security and ICE Documentation of Conditions at Two Immigration Detention Centers

FOR IMMEDIATE RELEASE

DENVER (February 7, 2018) – The Civil Rights Education and Enforcement Center (CREEC) has filed a lawsuit seeking the disclosure of documentation of detainee deaths, alleged abuse and other substandard conditions of confinement at the Adelanto and Etowah immigration detention facilities.  CREEC is represented pro bono by Thomas B. Kelley and Amber R. Gonzales of Ballard Spahr LLP.

The suit claims that U.S. Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have illegally ignored requests for information on conditions at the two immigration detention centers.  CREEC filed a series of Freedom of Information Act (FOIA) requests in August and September 2017 seeking information on deaths of people in detention, medical and mental health care conditions, solitary confinement use, and sexual assault allegations at the Adelanto ICE Processing Center, a private facility operated by the GEO Group in Adelanto, California, and the Etowah County Detention Center, a county jail in Gadsden, Alabama.

“Adelanto and Etowah are widely regarded as among the most concerning immigration detention centers in the country,” said Tim Fox, co-executive director of CREEC.  “The government cannot ignore its obligation to provide public access to documentation shedding light on the conditions at these facilities.”

The lawsuit alleges that, despite a requirement by law that a response must be provided within 30 days, ICE has failed to respond to any of CREEC’s requests.  The lawsuit seeks an order from the court requiring ICE to release the requested documents.

“We’re excited at the opportunity to move the ball toward accountability for how ICE treats human beings it confines without process, and at the same time address the current willingness of the federal government generally to ignore Congress’ guarantee of public access to records of what it is up to,” said Mr. Kelley.

Advocacy groups and media outlets have reported the substandard conditions at Adelanto and Etowah for years.  Since 2011, six people have died in ICE custody at Adelanto.  In 2017, there were three deaths, including one from apparent suicide.  CREEC requested documentation produced by ICE in the wake of these deaths. In the two case records made publicly available in response to prior FOIA requests from other organizations, ICE records acknowledge that both men who died received unacceptably poor medical care.

Christina Fialho, co-founder and co-executive director of the non-profit Community Initiatives for Visiting Immigrants in Confinement (CIVIC), which monitors and reports on conditions at the Adelanto facility, said, “We have received reports for years that conditions at Adelanto are extremely poor, including inadequate medical care resulting numerous deaths of people in detention.  It is vital the public have access to ICE records that document those conditions.”

At Etowah, there are claims that hundreds of detainees are held for prolonged periods of time without access to outdoor recreation or direct sunlight.  There have been widespread allegations of sexual assault, medical neglect, and substandard medical and mental health care.  Due in part to its remote location and the low rates of legal representation among ICE detainees at Etowah, there is very little publicly available information about conditions there, which led to CREEC request for ICE records.  “The living conditions and treatment at the Etowah Detention Center are undeniably inhumane.  Even DHS agreed recently that the facility should be shut down, and they were on the brink of doing so previously in 2010.  As members of the public and Alabama residents, it is our right to have access to the records of what occurs there in order to hold these systems accountable,” said Anna Thomas, a member of the Shut Down Etowah campaign, a grassroots campaign committed to exposing and ending the human rights abuses at the Etowah County Detention Center.

To learn more about the case click here.

To read the Press Release in Spanish click here. 

 

H.R. 620 = Amnesty for Access

Congress is considering a bill  — H.R. 620 — that would absolve all businesses currently in violation of the access requirements of Title III of the ADA — in place since 1990 — and permit them to wait to receive notice from a disabled person who encounters its discrimination, and then wait another six months to perhaps get some sort of solution underway.  DREDF has some excellent resources and talking points.  I thought this infographic might help explain how this bill rewards scofflaws and stops the progress of accessibility of the built environment.  [There’s a separate image description of the infographic here.]

Pepsi Center to Provide Open Captioning for Deaf and Hard of Hearing Sports Fans

Pepsi Center to Provide Open Captioning for Deaf and Hard of Hearing Sports Fans

Class action settlement provides for captioning on LED boards at non-concert events.

DENVER January 25, 2018 – Kirstin Kurlander and Kroenke Arena Company are pleased to announce that the Pepsi Center will start providing open captioning for Deaf and Hard of Hearing sports fans beginning this fall.

The Pepsi Center — a roughly 18,000-seat arena in downtown Denver — is home to the Colorado Avalanche, Denver Nuggets, and Colorado Mammoth.  Starting with the first preseason Avalanche game in October of this year, the Pepsi Center will caption all of the information spoken over the public address system on LED ribbon boards mounted on the front of the third level at the four corners of the arena.

Ms. Kurlander, a deaf woman and Mammoth season-ticket holder, filed a class action lawsuit against the company that owns and operates the Pepsi Center in 2016, after informally requesting captions at the arena.  The Pepsi Center began providing captions on handheld devices — smartphones or tablets — in late 2016, and has been working with Ms. Kurlander and her attorneys at the Civil Rights Education and Enforcement Center (CREEC) on a solution that provides open captioning that is generally visible throughout the arena.  The parties reached agreement at the end of last year and Judge Wiley Y. Daniel granted preliminary approval on January 9, 2018.

“I am very pleased that the Pepsi Center will provide captioning and I look forward to attending lacrosse and other games there with full access to the information broadcast in the arena,” said Ms. Kurlander.  Amy Robertson, Co-Executive Director at CREEC, added, “We were pleased with the Pepsi Center’s willingness to explore different solutions, and are glad that Deaf and Hard of Hearing sports fans will have equal access to games there.”

“The Pepsi Center has offered interpreters to its Deaf and Hard of Hearing patrons since its opening and, more recently, captioning on handheld devices at sporting events.  We are now pleased to offer open captioning in the arena for sporting and similar non-concert events,” said Jim Martin, President and Chief Executive Officer of Kroenke Arena Company.  Outside counsel for Kroenke Arena Company on this matter, Susan P. Klopman of H&K Law, LLC, added, “This addition continues to mark the Pepsi Center’s strong commitment to the Deaf and Hard of Hearing community.”

Judge Daniel has scheduled a hearing on the settlement on April 5, 2018 at 10:00.

Further information on the settlement and the hearing are available at www.creeclaw.org/PepsiCenterSettlement.

 

CREEC calls on AG, DA to approve compensation for Clarence Moses-EL, falsely imprisoned for 28 years.

Clarence Moses-EL was falsely imprisoned for 28 years.  After he was released, the former Denver D.A., Mitch Morrissey, decided to retry him.  This jury found him not guilty, and he’s now free after losing the best part of his life.  Susan Greene has a complete — and hair-raising — description of the case in her Colorado Independent article.  I urge everyone to sign the petition on Change.Org urging the current D.A. Beth McCann and the Colorado Attorney General, Cynthia Coffman, to approve compensation for his lost years, and not force a third trial.  Tomorrow is the deadline, so please sign today!

Below is CREEC’s letter to Ms. Coffman and Ms. McCann:

January 25, 2018

Cynthia H. Coffman
Colorado Attorney General
Ralph L. Carr Judicial Building
1300 Broadway, 10th Floor
Denver, CO 80203
Cynthia.Coffman@coag.gov

Beth McCann
Denver District Attorney
201 W. Colfax Ave.
Denver, CO 80202
Beth.McCann@denverda.org

RE: Compensation Due Clarence Moses-EL

Dear General Coffman and District Attorney McCann:

I am writing to urge that you not oppose compensation for Clarence Moses-EL.

The Civil Rights Education and Enforcement Center is a Denver-based nonprofit devoted to protecting civil rights in all walks of life. My Co-Executive Director, Tim Fox, and I are both Colorado lawyers and Denver residents — and we are both devoted to the integrity of the justice system in the state and the city we love.

We are deeply concerned about the treatment of Mr. Moses-EL’s case over the past 30 years. It is hard to read about this flawed process — the destruction of dispositive evidence, a conviction based on a dream, and a retrial (opposed by Ms. McCann during her campaign) based on the sudden recollections, decades after the event, of an admittedly impaired witness — without profound sadness for Mr. Moses-EL, for our system of justice, and for the actions that are being taken in our name, as Denverites and Colorado lawyers.

Mr. Moses-EL was imprisoned unjustly for 28 years. While we cannot give him back those years, we must help him build the life that was taken from him.

You are both experienced and esteemed lawyers, charged with doing justice for our state and our city, respectively. You have the ability to facilitate Mr. Moses-EL’s return to society and support his children’s education. And you have the ability to save Mr. Moses-EL from the almost unimaginable trauma of a third trial — one in which he would be forced to prove his innocence without the dispositive evidence destroyed by the police.

We respectfully request, in the name of justice and mercy, that you not oppose Mr. Moses-EL’s request for compensation.

Sincerely,

CIVIL RIGHTS EDUCATION
AND ENFORCEMENT CENTER

/s/ Amy F. Robertson

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