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ACLU of Indiana celebrates 60 years of guarding founding principles

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Among the collection of framed degrees, recognitions and pictures hanging on Ken Falk’s office walls is a photograph of an overpass spray-painted with the words “Roadblocks are unconstitutional.”

The picture is a visual reminder of Indianapolis v. Edmonds, 531 U.S. 32 (2000), a case that Falk, legal director of the American Civil Liberties Union of Indiana, fought all the way to the Supreme Court of the United States. At issue was whether vehicle checkpoints set up by Indianapolis police to search for drugs constituted a violation of the Fourth Amendment protection against unreasonable search and seizure.

aclu Ken Falk, American Civil Liberties Union of Indiana legal director (IL Photo/ Aaron P. Bernstein)

While fighting this case in court, Falk received a phone call from a man who described himself as rich, white and one who never thought he would be calling the ACLU of Indiana. However, the caller was incensed about the roadblocks and asserted no government was going to randomly stop him.

The dispute over what is and is not constitutional reflects the ACLU of Indiana’s mission to defend individual rights and preserve the liberties given in the Constitution. The organization champions the Bill of Rights, which it sees as ensuring the minority is not overridden by the majority.

The roadblock case, Falk said, illustrates that members of the minority group are always changing. As the caller realized, anyone can find themselves outside the majority at any time.

“I think it’s vital that people have a voice,” Falk said. “It’s not enough to say the Bill of Rights gives everybody a voice. You have to actively pursue that voice.”

This year marks the 60th anniversary of the establishment of the ACLU of Indiana. The organization was embroiled in controversy at its founding and continues to draw a leery, sometimes angry, response from the public. However, the group maintains that it fights solely for the rights and protections provided in the U.S. and Indiana constitutions.

Although over its history the nonprofit has fought on behalf of seemingly opposing groups – like abortion rights and right to life – the common thread is the threat to the Bill of Rights.

“We see ourselves as playing an important role in American democracy,” ACLU of Indiana Executive Director Jane Henegar said.

aclu timeline“We need to tell people over and over again why we do it,” she said, referring to defending the Constitution. The more people understand why the ACLU of Indiana asks questions, “the more they understand democracy, the better citizens they are, and that benefits everybody.”

Different day, same battle

At the center of many constitutional battles between the ACLU of Indiana and the state and federal governments has been Indianapolis attorney Lawrence Reuben.

Through his work with the organization, Reuben has represented the Ku Klux Klan, the Nazis, and Muslim and Jewish prisoners. He did not always share his clients’ beliefs, but he still fought to protect their right to have those beliefs.

Reuben started practicing in the early 1970s when the protests were raging over Vietnam and the overreach of the Nixon administration was coming to light. He cannot single out a reason for why he became involved with the ACLU of Indiana other than to explain that he has always been interested in “that little piece of paper that Madison and Jefferson and the boys sat in a room in Philadelphia and wrote.”

Continual violations and infringements on rights are not evidence that the ACLU of Indiana has had little impact, Henegar said. Rather the ongoing defense of civil liberties is reflective of a vibrant democracy.

Government is always changing, she said. New public servants take office, new legislative bodies convene, new government agencies start operations, and everyday human beings apply constitutional principles to the circumstances in which they find themselves.

Indiana Attorney General Greg Zoeller has been opposing counsel in several ACLU legal actions. He echoed Henegar in saying that the judicial branch functions properly when both sides are well represented.

“I never complain about individuals or various groups exercising their right to file legal challenges against state statutes they disagree with,” he said. “… Legal challenges are an important safeguard built in to the system to protect against all levels of government exceeding their bounds.”

Pointing to recent headlines about the federal government’s covert surveillance program of cell phones, Reuben sees the founding principles being trampled. Although he believes the actions have put the survival of the republic in jeopardy, he maintains the situation would have been worse if the ACLU had not fought earlier battles over free speech and privacy.

“I think we’d be in deeper doo-doo than we are now,” he said, “and we are in some serious trouble.”

‘Weakest and least powerful’

Henry Price was a young litigator in Indianapolis when he attended a city council meeting in the late 1960s to argue against a pending ordinance barring the production of the musical “Hair.”

As he was waiting for his two minutes to speak, a young African-American man addressed the council, explaining he wanted to file a complaint of police brutality. No city agency would listen to him, he said, so he was appealing to the council.

The alleged beating was part of a larger incident in an African-American neighborhood where police arrested 130 individuals. During the melee, the young man said law enforcement took him behind a mattress factory and beat him.

The members of the council replied they could not help him because they did not have jurisdiction over the police department.

Switching from being a private attorney to being an ACLU attorney, Price told the council it was not a question of jurisdiction but of political will. He then convinced the council to appoint a committee on the matter and hold a hearing.

For three days, he brought witness after witness to testify what had happened that night until a judge enjoined the proceedings. However, by that time, all the charges had been dropped except for one misdemeanor.

“People who have their rights violated,” Price said, “are often the weakest and least powerful.”

In the roadblock case, the least powerful were the drivers being pulled over.

The cert petition for Indianapolis v. Edmonds was pending before the U.S. Supreme Court when Scott Chinn started his new job as the city’s corporation counsel in 2000. Having spent much of his career working in government, Chinn had tangled with the ACLU of Indiana at every level of state and federal courts.

The justices took the case and in a 6-3 ruling found for Edmonds. Even though in the past the court had favored suspicionless searches to stop drunk driving or illegal immigration, it concluded Indianapolis had carried the practice too far.

Thirteen years later, Chinn, now a partner at Faegre Baker Daniels LLP, can readily recall the details of that case, the precedents and the nuances of the ruling. He does not harbor resentment over the case but instead applauds the legacy of the ACLU.

“I like it best when my government clients appreciate that part of the checks and balances that we need to have in government, in our democracy, is realizing the need to have a strong advocate for civil liberties to challenge government actions,” Chinn said.

The photograph of the overpass in Falk’s office does not indicate he considers this the most significant case he has handled. Indeed, a weary smile spread across his face when asked which cases in his nearly 20 years at the ACLU of Indiana have been the most important.

Some cases are lost, some cases are won, Falk said, but there’s always another case.•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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