Attorney Jon Pushinsky’s Talk on Civil Rights on Dec 4th, 2016 at MCCGP
Presenter: Civil Rights Attorney Jon Pushinsky.
Notes: compiled by Catherine Balsamo and edited by Abu Noaman
Outline of Talk
Context
Muslims (or people perceived to be Muslims) are facing unprecedented discrimination and vandalism in the community and the workplace; they may have difficulty in obtaining jobs or are being bullied. This is exacerbated by what some of the candidates were saying in the run up to the elections.
Brief Historical Perspective on Civil Rights
Discrimination on the basis of race, religion, national origin, and ethnicity are unlawful in the US.
First sixteen words of 1st amendment of U.S. Constitution reads; "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." This is an anti-majoritarian provision designed to protect minorities and their rights being overridden by a zealous majority. The Supreme Court interpreted these words as applying to the Federal government and its 3 branches. It originally didn't apply to state governments. States were left to their own devices. Many state constitutions, such as PA's, had something similar to the 1st amendment in it. PA's is even broader and grants more protections than the federal Constitution.
Treating Islam as not a religion would take litigation because it is recognized as one of the three Abrahamic faiths. If it's perceived as ethnic tradition or national tradition, it's still protected. Rights of free speech and association are protected too, so even if Islam is declared an ideology, it's covered.
It is very difficult to change our Constitution. There are two ways to change it: first is to convene a constitutional convention (only one in the U.S. history which created the constitution); second is by a vote by congress followed by ratification by two thirds of the states.
The US Constitution applies to all of the states. The US Constitution provides a floor of where rights are, so no state can go below that level. However, state constitutions can grant broader rights because they are free to go above the floor.
At the time the Constitution was drafted, it only applied to federal governmental action (ex. government couldn't legally discriminate but individuals and private entities could). This changed shortly after the Civil War. In 1868, the 14th Amendment extended Constitutional protections to state and local governments. It makes the Bill of Rights (including the due process and equal protection of the laws) applicable to state governments as well.
Does the 14th Amendment only apply to citizens? It talks about citizens in one clause, and then all people in the second clause.
In addition to Constitutional protections, there are certain federal statutes and civil rights laws that grant additional rights. e.g. Civil Rights Act of 1964 prevents employment and public accommodation discrimination. It gives rights to us against discrimination from private individuals. In addition, Voting Rights Act of 1965 gives everyone the equal right to vote.
Historic Role of Islam in the U.S.
Muslims have been here since before we were a country. First documented Muslims were in America in 1600s. Some slaves brought from Africa were Muslims, and even some of the people on Columbus' ships may have been Muslim trying to escape the expulsion from Spain in 1492.
The first country to recognize the U.S. was Morocco in 1777. President Thomas Jefferson held the first Iftar dinner sponsored in the White House in 1805.
Muslims are now a part of almost every strata of society, every profession, and every community across the U.S.
Common Questions/Situations and How You May Want To Respond
What do I do if an authority / governmental agent / law enforcement (e.g. FBI Agent or an Immigration Agent or Police Officer) wants to question me?
Attorney Pushinsky's advice: remain polite. Being nasty, obstructive or challenging risks escalating the situation. The more polite you are, the more likely you'll be able to get out of the situation with the least amount of trouble. However, being polite doesn't mean you have to give up rights. You have the right to remain silent. No agent or officer can compel you to speak. If you don’t have a green card or citizenship, you may need to show certain ID but you don't have to answer questions. It may be advisable to not answer the questions. You have the right to have a lawyer present when an agent or law enforcement officer wants to question you. You should keep in your wallets or purses the names and phone numbers of 3 lawyers at all times so you can use it if you are approached. Attorney Pushinsky is volunteering to be one and he has found 2 others who will do so also - he'll provide their info (see names listed in the section titled Additional Resources). You can say you're not saying anything until you talk to your lawyer. Then go down the list of lawyers and call them one by one until you reach one. He advises to never say anything to government agents unless a lawyer is present.
What kind of info can we request from someone claiming to be a government agent?
You can ask for their badge or ID, POLITELY. They may say no, especially if you're not polite. Attorney Pushinsky recommends you don't speak with them if you're not sure who you're talking to. And if they have a badge or ID, you can say you’re not saying anything until you talk to your lawyer. Then go down the list of lawyers and call them one by one until you reach one.
Can we record the interaction with law enforcement?
Attorney Pushinsky recommends taking out your phone and recording and filming the interaction. That is legal if law enforcement / governmental agents are interacting with you.
Does ACLU have an app for filming and recording an interaction with law enforcement that will automatically submit the recording to the ACLU?
Yes. Google ACLU Mobile Justice App to find it. It's on ACLUPA.org's website and on the app store. Use it so it gets submitted in case authorities take your phone at some point during the recording.
Can law enforcement officers take my phone?
Law enforcement / agents are not allowed to take your phone from you. You can say no to the request for handing it over. But they may take it from you anyway. Remember that just because governmental agents aren't allowed to do something doesn't mean they won't.
Should I allow the law enforcement to waive my rights?
Do not let them talk you into waiving your rights, which they may try to do. e.g. "What are you hiding? Why do you think you need a lawyer?” Being polite doesn't mean you give up your rights. If you want a lawyer present, maintain the position that you need your lawyer present even if they keep trying to get you into conversation.
You may want to say at the beginning: "Am I free to leave?" If you're not, you're under detention. If they say “yes”, you may want to because you are free to leave anyway, or you could make as many phone calls to your lawyer as you wish.
Why do I want a lawyer when I haven’t done anything wrong and I have nothing to hide?
The reason you may want a lawyer present even if you believe you have nothing to hide: what you say may trigger a certain thought process. e.g. "What charities do you donate to?" That charity may be on some watch list of something that happened years ago. If you share that, you may be flagging yourself unintentionally as someone they have to watch. Or they might ask you "Do you know Hasan?" That may flag you as well if they have concerns about that person.
Is there a maximum number of phone calls you can make in such situations?
If you're under arrest, the answer is “Yes”. But if they just want to speak with you, the answer is “No”.
What level of questioning does it take before you start asserting your rights?
You have to judge this based on the situation you find yourself in e.g. if a police officer stops you while you were driving and asks you for driver’s license, registration and insurance card, you must give that information to them because it has to do with a driving violation. You don’t have to give any immigration documents or answer any immigration questions. But from there onwards, you don't have to answer questions about where you came from or where you are going, etc. If the school principal wants to talk to you about your child’s performance or behavior, you should certainly talk.
If a law enforcement officer comes up to me and says they want to talk to me about my connection / involvement with an Islamic Center, what should I do?
You may want to exercise your right to remain silent until a lawyer is present. Then contact your lawyer.
What should you do if the law enforcement approaches an organization?
Attorney Pushinsky recommends not answering any questions without a lawyer.
In case the FBI conducts a sting operation and the person stung is a member of or visits our mosque on Fridays or weekdays, and then the new presidential administration wants to shut down the mosque to make an example for others or retaliate against the broader community (ex. deport an imam), what should we do in preparation for and in response?
Let the staff know that the law enforcement cannot come in without being invited in or without a warrant, at home or at your organization. Staff (for workplaces) and family members/residents (for home) should know your rights:
If you give permission to law enforcement to come in, you have given them consent to search without a warrant. You can still exercise your right to remain silent until your attorney is present.
If law enforcement has a warrant, check the correct address first; now they can search and seize, so don’t obstruct them. Exercise your right to remain silent until your attorney is present.
If authorities want to interview you, you can say that you're not consenting to be interviewed, and/or that you want your lawyer to be present.
What should I do if I am on the executive council/committee/board of my organization?
At your next board meeting, start developing an action plan so everyone knows steps 1 through x and what procedure to follow if law enforcement wants to come into the organization and/or interview people.
Are Informants permissible by law?
Yes, “Informants” are permissible by law enforcement practice. Be prepared to assume that there are informants in your organization, at houses of worships, events, all the time, perhaps in this room, anywhere. There's nothing you can do to stop it. Be mindful of whom you talk to and what you say. Police and federal enforcement officers go into mosques and get Muslims to agree to be informants. You can refuse to be one. They may use unkind tactics like, "You're not doing enough to stop ISIS, why shouldn't we wonder about you if you aren't willing to do this?" or something like that to try to recruit you to be an informant. You may get benefits e.g. if one of your kids is getting prosecuted, he/she may get a better deal, if you do that. You don't have to do it. Consult with a lawyer first if you are considering it.
What cautions should I exercise when using the Phone Internet, social media?
Be careful about what websites you visit.
Be very careful about what you say on phone conversations or what you say on social media. Remember what you write on social media never goes away.
Make sure you're not saying something you know can be used against you. There may be more that can be used against you than you realize, but don't say what you know can be.
You can say nasty things about the President, but issuing threats against the President is illegal. You don't have the right to make a threat. You can criticize: "He's a thief, a crook." That's protected free speech. But that doesn't mean you won't get charged for it, but it'd be thrown out. Threats are illegal.
Could interment camps like those for the Japanese happen again?
The Supreme Court's Korematsu decision upheld right of government’s executive order 9066 to intern Japanese Americans. Justice Hugo Black later regretted upholding it. Attorney Pushinsky can't guarantee we can't go back to that, but we have 50+ years of court decisions and progress that hopefully would stop us from going back to that. Back to Attorney Pushinsky: hopefully it'd be challenged in court ASAP.
The President doesn't need a level of proof to issue an Executive Order. Attorney Pushisnky hopes a judge would quickly grant a national injunction to stay the law until the courts decide it.
What charities should I avoid?
Attorney Pushinsky doesn't know. Do your own investigations about the organization. If they have been issued a 501 C 3 status by federal/state government, you can donate and later argue that this is what you believed they do and gave you the reason to donate.
Can registration for Muslims be enacted?
Regarding registration of Muslims, under the 1st Amendment, it'd be grossly unlawful. It'd be singling out members of one single religion. It'd also be violating the equal protection clause of the 14th Amendment. But just because it's illegal under current law doesn't mean it can't happen. A registration system that selects who to register by religion is patently unconstitutional. So citizen and non-citizen Muslims cannot be targeted by a system developed to register people based on their religion.
Do we have a right not to be verbally assaulted in public spaces?
Under the Civil Rights Act of 1964: it’s unlawful to be discriminated against because of religion by a public accommodation. A private citizen can come up and say mean things to you and it's allowed. Doing it on an ongoing basis may be harassment. If they touch you without consent, it's unlawful. Threats to harm you may be considered terroristic threats.
How should we handle incidents at my kid’s school?
Report incidents to authorities in the school. If they don't act on it, they may be civilly liable for civil rights violation.
Additional Resources
- List of 3 attorneys you can call if the need arises:
Jon Pushinsky, Esq
Office: 412-281-6800
Cell: 412-559-5572
Michael J. Healey, Esq
Office: 412-391-7711
Cell: 412-760-0342
Thomas J. Farrell, Esq
Office: 412-894-1380
Cell: 412-608-6393
- CAIR's know-your-rights cards.
- ACLU's know-your-rights cards to download or purchase them from website. They're small and easy to keep with you.
- ACLU brochures about your rights in specific situations. e.g. What to do if questioned about your immigration status; Know your rights about immigration agents on street, at car, at home. Visit ACLU.org and ACLUPA.org .
- Recommend Muslims you know in other areas to call their local ACLUs and share that they're seeking attorneys to be able to call if stopped and see if they can provide resources or direction.
Notes: compiled by Catherine Balsamo and edited by Abu Noaman
Outline of Talk
- Context
- Brief Historical Perspective on Civil Rights
- Historic Role of Islam in the U.S.
- Common Questions/Situations and How You May Want to Respond
- Additional Resources
Context
Muslims (or people perceived to be Muslims) are facing unprecedented discrimination and vandalism in the community and the workplace; they may have difficulty in obtaining jobs or are being bullied. This is exacerbated by what some of the candidates were saying in the run up to the elections.
Brief Historical Perspective on Civil Rights
Discrimination on the basis of race, religion, national origin, and ethnicity are unlawful in the US.
First sixteen words of 1st amendment of U.S. Constitution reads; "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." This is an anti-majoritarian provision designed to protect minorities and their rights being overridden by a zealous majority. The Supreme Court interpreted these words as applying to the Federal government and its 3 branches. It originally didn't apply to state governments. States were left to their own devices. Many state constitutions, such as PA's, had something similar to the 1st amendment in it. PA's is even broader and grants more protections than the federal Constitution.
Treating Islam as not a religion would take litigation because it is recognized as one of the three Abrahamic faiths. If it's perceived as ethnic tradition or national tradition, it's still protected. Rights of free speech and association are protected too, so even if Islam is declared an ideology, it's covered.
It is very difficult to change our Constitution. There are two ways to change it: first is to convene a constitutional convention (only one in the U.S. history which created the constitution); second is by a vote by congress followed by ratification by two thirds of the states.
The US Constitution applies to all of the states. The US Constitution provides a floor of where rights are, so no state can go below that level. However, state constitutions can grant broader rights because they are free to go above the floor.
At the time the Constitution was drafted, it only applied to federal governmental action (ex. government couldn't legally discriminate but individuals and private entities could). This changed shortly after the Civil War. In 1868, the 14th Amendment extended Constitutional protections to state and local governments. It makes the Bill of Rights (including the due process and equal protection of the laws) applicable to state governments as well.
Does the 14th Amendment only apply to citizens? It talks about citizens in one clause, and then all people in the second clause.
In addition to Constitutional protections, there are certain federal statutes and civil rights laws that grant additional rights. e.g. Civil Rights Act of 1964 prevents employment and public accommodation discrimination. It gives rights to us against discrimination from private individuals. In addition, Voting Rights Act of 1965 gives everyone the equal right to vote.
Historic Role of Islam in the U.S.
Muslims have been here since before we were a country. First documented Muslims were in America in 1600s. Some slaves brought from Africa were Muslims, and even some of the people on Columbus' ships may have been Muslim trying to escape the expulsion from Spain in 1492.
The first country to recognize the U.S. was Morocco in 1777. President Thomas Jefferson held the first Iftar dinner sponsored in the White House in 1805.
Muslims are now a part of almost every strata of society, every profession, and every community across the U.S.
Common Questions/Situations and How You May Want To Respond
What do I do if an authority / governmental agent / law enforcement (e.g. FBI Agent or an Immigration Agent or Police Officer) wants to question me?
Attorney Pushinsky's advice: remain polite. Being nasty, obstructive or challenging risks escalating the situation. The more polite you are, the more likely you'll be able to get out of the situation with the least amount of trouble. However, being polite doesn't mean you have to give up rights. You have the right to remain silent. No agent or officer can compel you to speak. If you don’t have a green card or citizenship, you may need to show certain ID but you don't have to answer questions. It may be advisable to not answer the questions. You have the right to have a lawyer present when an agent or law enforcement officer wants to question you. You should keep in your wallets or purses the names and phone numbers of 3 lawyers at all times so you can use it if you are approached. Attorney Pushinsky is volunteering to be one and he has found 2 others who will do so also - he'll provide their info (see names listed in the section titled Additional Resources). You can say you're not saying anything until you talk to your lawyer. Then go down the list of lawyers and call them one by one until you reach one. He advises to never say anything to government agents unless a lawyer is present.
What kind of info can we request from someone claiming to be a government agent?
You can ask for their badge or ID, POLITELY. They may say no, especially if you're not polite. Attorney Pushinsky recommends you don't speak with them if you're not sure who you're talking to. And if they have a badge or ID, you can say you’re not saying anything until you talk to your lawyer. Then go down the list of lawyers and call them one by one until you reach one.
Can we record the interaction with law enforcement?
Attorney Pushinsky recommends taking out your phone and recording and filming the interaction. That is legal if law enforcement / governmental agents are interacting with you.
Does ACLU have an app for filming and recording an interaction with law enforcement that will automatically submit the recording to the ACLU?
Yes. Google ACLU Mobile Justice App to find it. It's on ACLUPA.org's website and on the app store. Use it so it gets submitted in case authorities take your phone at some point during the recording.
Can law enforcement officers take my phone?
Law enforcement / agents are not allowed to take your phone from you. You can say no to the request for handing it over. But they may take it from you anyway. Remember that just because governmental agents aren't allowed to do something doesn't mean they won't.
Should I allow the law enforcement to waive my rights?
Do not let them talk you into waiving your rights, which they may try to do. e.g. "What are you hiding? Why do you think you need a lawyer?” Being polite doesn't mean you give up your rights. If you want a lawyer present, maintain the position that you need your lawyer present even if they keep trying to get you into conversation.
You may want to say at the beginning: "Am I free to leave?" If you're not, you're under detention. If they say “yes”, you may want to because you are free to leave anyway, or you could make as many phone calls to your lawyer as you wish.
Why do I want a lawyer when I haven’t done anything wrong and I have nothing to hide?
The reason you may want a lawyer present even if you believe you have nothing to hide: what you say may trigger a certain thought process. e.g. "What charities do you donate to?" That charity may be on some watch list of something that happened years ago. If you share that, you may be flagging yourself unintentionally as someone they have to watch. Or they might ask you "Do you know Hasan?" That may flag you as well if they have concerns about that person.
Is there a maximum number of phone calls you can make in such situations?
If you're under arrest, the answer is “Yes”. But if they just want to speak with you, the answer is “No”.
What level of questioning does it take before you start asserting your rights?
You have to judge this based on the situation you find yourself in e.g. if a police officer stops you while you were driving and asks you for driver’s license, registration and insurance card, you must give that information to them because it has to do with a driving violation. You don’t have to give any immigration documents or answer any immigration questions. But from there onwards, you don't have to answer questions about where you came from or where you are going, etc. If the school principal wants to talk to you about your child’s performance or behavior, you should certainly talk.
If a law enforcement officer comes up to me and says they want to talk to me about my connection / involvement with an Islamic Center, what should I do?
You may want to exercise your right to remain silent until a lawyer is present. Then contact your lawyer.
What should you do if the law enforcement approaches an organization?
Attorney Pushinsky recommends not answering any questions without a lawyer.
In case the FBI conducts a sting operation and the person stung is a member of or visits our mosque on Fridays or weekdays, and then the new presidential administration wants to shut down the mosque to make an example for others or retaliate against the broader community (ex. deport an imam), what should we do in preparation for and in response?
Let the staff know that the law enforcement cannot come in without being invited in or without a warrant, at home or at your organization. Staff (for workplaces) and family members/residents (for home) should know your rights:
- Your right to remain silent, and right to an attorney; you can choose to answer some questions if you want, and you could then decide to be silent at whatever point, even if you had agreed to be interviewed up to that point. You can say you want lawyer then. THERE IS NO CONVERSATION WITH LAW ENFORCEMENT THAT'S OFF THE RECORD, REGARDLESS OF WHAT THEY TELL YOU. They may say your conversation is off the record to make you comfortable, but every conversation with law enforcement is on the record. If you decide to talk to police, police may produce a summary of what was said and ask you to sign it. BE CAREFUL. READ IT CAREFULLY BEFORE YOU DECIDE TO SIGN IT. Make sure it reflects what you said AND what you intended to say. [Look out for misinterpretations.] It is UNWISE to say anything or sign anything in these situations without a lawyer present. Another level of protection: if you're going to consent to an interview, you can say you'll only consent to it if you can record it – even with your lawyer present (can even do). If you are being interviewed, know that IT IS A CRIMINAL ACT TO LIE TO A FEDERAL OFFICER. Preface your answers by saying “To the best of my recollection,” Never commit yourself to this is EVERYTHING I know. Don’t worry about making your answers wordy, but above all keep the option open for adding more recollections and facts later. Respond in a way that allows you to suddenly remember more, something key, something related later that would not make your answer false or a lie. e.g. I can't think of... or I don't recognize that name... or I can’t recollect now but I might recognize something later… or At this time... or I think… When law enforcement provides you with a summary of your conversation to sign, insist on incorporating a statement like: “The summary only reflects what you can recall at that specific time and you reserve the right to change it upon additional information or further reflection.
- Your right to not be searched without consent or a warrant. Know police should not come in unless they have a warrant; A warrant is a requirement unless you provide consent or unless it's a true emergency situation (ex. if someone shot someone and then ran into mosque, then law enforcement can go into that mosque).
If you give permission to law enforcement to come in, you have given them consent to search without a warrant. You can still exercise your right to remain silent until your attorney is present.
If law enforcement has a warrant, check the correct address first; now they can search and seize, so don’t obstruct them. Exercise your right to remain silent until your attorney is present.
If authorities want to interview you, you can say that you're not consenting to be interviewed, and/or that you want your lawyer to be present.
What should I do if I am on the executive council/committee/board of my organization?
At your next board meeting, start developing an action plan so everyone knows steps 1 through x and what procedure to follow if law enforcement wants to come into the organization and/or interview people.
Are Informants permissible by law?
Yes, “Informants” are permissible by law enforcement practice. Be prepared to assume that there are informants in your organization, at houses of worships, events, all the time, perhaps in this room, anywhere. There's nothing you can do to stop it. Be mindful of whom you talk to and what you say. Police and federal enforcement officers go into mosques and get Muslims to agree to be informants. You can refuse to be one. They may use unkind tactics like, "You're not doing enough to stop ISIS, why shouldn't we wonder about you if you aren't willing to do this?" or something like that to try to recruit you to be an informant. You may get benefits e.g. if one of your kids is getting prosecuted, he/she may get a better deal, if you do that. You don't have to do it. Consult with a lawyer first if you are considering it.
What cautions should I exercise when using the Phone Internet, social media?
Be careful about what websites you visit.
Be very careful about what you say on phone conversations or what you say on social media. Remember what you write on social media never goes away.
Make sure you're not saying something you know can be used against you. There may be more that can be used against you than you realize, but don't say what you know can be.
You can say nasty things about the President, but issuing threats against the President is illegal. You don't have the right to make a threat. You can criticize: "He's a thief, a crook." That's protected free speech. But that doesn't mean you won't get charged for it, but it'd be thrown out. Threats are illegal.
Could interment camps like those for the Japanese happen again?
The Supreme Court's Korematsu decision upheld right of government’s executive order 9066 to intern Japanese Americans. Justice Hugo Black later regretted upholding it. Attorney Pushinsky can't guarantee we can't go back to that, but we have 50+ years of court decisions and progress that hopefully would stop us from going back to that. Back to Attorney Pushinsky: hopefully it'd be challenged in court ASAP.
The President doesn't need a level of proof to issue an Executive Order. Attorney Pushisnky hopes a judge would quickly grant a national injunction to stay the law until the courts decide it.
What charities should I avoid?
Attorney Pushinsky doesn't know. Do your own investigations about the organization. If they have been issued a 501 C 3 status by federal/state government, you can donate and later argue that this is what you believed they do and gave you the reason to donate.
Can registration for Muslims be enacted?
Regarding registration of Muslims, under the 1st Amendment, it'd be grossly unlawful. It'd be singling out members of one single religion. It'd also be violating the equal protection clause of the 14th Amendment. But just because it's illegal under current law doesn't mean it can't happen. A registration system that selects who to register by religion is patently unconstitutional. So citizen and non-citizen Muslims cannot be targeted by a system developed to register people based on their religion.
Do we have a right not to be verbally assaulted in public spaces?
Under the Civil Rights Act of 1964: it’s unlawful to be discriminated against because of religion by a public accommodation. A private citizen can come up and say mean things to you and it's allowed. Doing it on an ongoing basis may be harassment. If they touch you without consent, it's unlawful. Threats to harm you may be considered terroristic threats.
How should we handle incidents at my kid’s school?
Report incidents to authorities in the school. If they don't act on it, they may be civilly liable for civil rights violation.
Additional Resources
- List of 3 attorneys you can call if the need arises:
Jon Pushinsky, Esq
Office: 412-281-6800
Cell: 412-559-5572
Michael J. Healey, Esq
Office: 412-391-7711
Cell: 412-760-0342
Thomas J. Farrell, Esq
Office: 412-894-1380
Cell: 412-608-6393
- CAIR's know-your-rights cards.
- ACLU's know-your-rights cards to download or purchase them from website. They're small and easy to keep with you.
- ACLU brochures about your rights in specific situations. e.g. What to do if questioned about your immigration status; Know your rights about immigration agents on street, at car, at home. Visit ACLU.org and ACLUPA.org .
- Recommend Muslims you know in other areas to call their local ACLUs and share that they're seeking attorneys to be able to call if stopped and see if they can provide resources or direction.