Brief for Amici Curiae National Association of Criminal Defense Lawyers, Pretrial Justice Institute, and Center for Legal and Evidence-Based Practices in Support of Plaintiffs-Appellees and Affirmance.

Argument: Well-established constitutional law requires that individuals detained by the government receive an individualized bond hearing. The procedural safeguards imposed by the district court for bond hearings are constitutionally required and routinely guaranteed by federal and state law in analogous contexts. Hearings on the need for detention must be prompt. The government must bear the burden of proof. An accurate, contemporaneous record with particularized findings must be kept. Vastly greater numbers of individuals have individualized bond hearings in state pretrial systems. Modern pretrial practices demonstrate that categorical detention of individuals seeking asylum is not necessary to ensure they appear at their hearings. Asylum seekers are likely to appear for their court dates. Risk assessment tools are available to guide the government in deciding which asylum seekers should be released pending immigration proceedings.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiffs’ Motion for Partial Summary Judgment.

Argument: Violating Plaintiffs’ Fourth Amendment right by seizing and searching all of their communications constitutes a violation of the Fifth Amendment right against self-incrimination. Violating Plaintiffs’ Fourth Amendment right by seizing and searching all of their communications constitutes a violation of the Sixth Amendment right to counsel. Allowing the government to shield evidence of its wrongful search and seizure means that the injury to these other Constitutional rights cannot be remedied and must be presumed.  The fact that the Fifth and Sixth Amendment rights of Plaintiffs have been undermined by the surveillance at issue in this case supports the finding that this surveillance has been made in violation of the Fourth Amendment. When the Fourth Amendment falls, so do the Fifth and Sixth. This Court should therefore find the surveillance at issue in this case unlawful.

Amicus Curiae brief of the National Association of Criminal Defense Lawyers in Support of Plaintiffs’ Motion for Partial Summary Judgment.

Argument: Violating Plaintiffs’ Fourth Amendment right by seizing and searching all of their communications constitutes a violation of the Fifth Amendment right against self-incrimination. Violating Plaintiffs’ Fourth Amendment right by seizing and searching all of their communications constitutes a violation of the Sixth Amendment right to counsel. The government’s destruction of the evidence of its wrongful search and seizure means that the injury to these other Constitutional rights cannot be remediated and must be presumed. The fact that the Fifth and Sixth Amendment rights of Plaintiffs have been undermined by the surveillance at issue in this case supports the finding that this surveillance has been made in violation of the Fourth Amendment. When the Fourth Amendment falls, so do the Fifth and Sixth. This Court should therefore find the surveillance at issue in this case unlawful.

Brief Amici Curiae of the National Consumer Law Center, Demos, The National Association of Consumer Advocates, the National Association of Criminal Defense Lawyers, the National Employment Law Project, and the Southern Coalition for Social Justice.

Argument: Fair and accurate reporting of criminal record information is essential to protecting individuals’ rights and opportunities. Background checks contain a high rate of errors with deleterious impacts on consumers. Creation of a Sec. 1681(a)(y) exclusion would remove nearly all FCRA protections from employment criminal records reports. Judicial enactment of a § 1681a(y) FCRA exclusion for every circumstance in which the employer has a “policy against employing those with certain criminal histories” – every employer who uses a criminal background check – would swallow the rule itself.