 My name is Wookiee Kim. I am the staff attorney at the ACLU of Hawaii. I use he-him pronouns and with me is Mateo Caballero who's our legal director and also uses he-him pronouns. And the focus of today's presentation is on civil rights and civil liberties in the time of COVID. And so quickly our agenda for our presentation today is to quickly go over what the ACLU is and then discuss some of the general civil rights issues that are raised by COVID-19 before talking a little bit about what the ACLU has been doing nationally related to these issues. And then we'll zoom in from the national context to the local context and examine how these issues are playing out in Hawaii. And we'll end with just some examples of the work that the ACLU of Hawaii has been doing here. And then we'll have time for Q&A. So the ACLU stands for the American Civil Liberties Union. And what is that? It is a non-profit, non-partisan civil rights and civil liberties watchdog. So that means we don't do this to make money. We don't support or oppose political candidates or parties. And we're ultimately here to protect people's constitutional rights and to be a watchdog against governmental abuse. And how do we do this? Well, it's really three different things. Litigation, so think lawsuits in court, policy advocacy and lobbying. So I think laws, legislation, politicians, etc. And then public education and media outreach. So think about this talk, think about Know Your Rights events, press, reports, etc. So with that out of the way, let's turn to sort of the first topic. And COVID-19 raises a bunch of civil rights issues. We won't have time to go into all of them, but we wanted to start by identifying two higher level problems presented by COVID. The first is the fundamental tension between freedom and safety that's presented by the pandemic. And the second is the fact that COVID-19 exposes and exacerbates the many preexisting inequalities in our society. So let's talk about the first issue. The COVID-19 pandemic seems superlatively unique, as has become a common expression these days. We've never experienced anything like COVID-19 before. While that statement is true on many levels, COVID-19 truly is unprecedented. From the civil rights perspective, the present pandemic is just one specific but thorny scenario, illustrating the fundamental tension between freedom and liberty on the one hand, and public safety and security on the other. Ensuring that the government appropriately calibrates the balance between these two important but at times conflicting interests, is the key task that we as civil rights lawyers carry out each day. So what's specifically involved in this balancing act? Well, government powers and government limits as outlined in the Constitution. The Constitution gives power to government, relevant to COVID, Article 1, Section 8, which is this middle image, gives to Congress powers to tax and spend for the general welfare and to regulate interstate commerce. And the 10th Amendment leaves to state governments the police powers, meaning those concerning health, safety, and general welfare. But balanced against these powers, the Constitution imposes limits, most notably through the Bill of Rights, protecting certain individual liberties and prohibiting governmental overreach. Importantly, the balance between these two interests is not static, their relative weights shift over time depending on circumstance. And the events that tend to throw off the equilibrium the most and lead to the most contentious civil liberties disputes are those that involve national emergencies or crises. The present pandemic is the latest example of an emergency, but is most certainly not the first. Think about World War II and Executive Order 9066. Think about 9-11 and the Patriot Act. And then think about the 1918 flu pandemic or even more recently the 2014 Ebola outbreak. The common thread with all of these emergencies is that they involve unprecedented decisions made by government under immense pressure, both temporal and political, that ultimately intruded on core constitutional rights. And additionally, these restrictions appear justified at the time, but in retrospect, perhaps were not. So when presented with an emergency, a whole host of questions arise. How far are we willing to let government go to address the emergency? What government interventions are actually effective? And what principles will guide government action? What safeguards will be in place? And how will we ensure that any temporary encroachment on our rights doesn't become permanent? These are tough questions with no easy answers. But from the ACLU's perspective, when it comes to the government's response to the pandemic, we generally adhere to the following principles also encapsulated in the sentence on the right. First, we want science, not politics, not prejudice to inform any government response. And that response also needs to be transparent and data driven. Second, it must respect core constitutional principles. In other words, we must preserve civil liberties where possible. And to the extent we deviate from those core protections, the measures pursued must be the least restrictive ones. And finally, it must encourage voluntary compliance. Coercion and brute force are rarely necessary or effective. And if anything, they breed public distrust and encourage non-compliance with both public health authorities and measures. So that's the first meta issue. The other meta issue presented by the pandemic concerns equality or the lack thereof. The COVID-19 pandemic is really doing two things. It is exposing the cracks in our social safety net that were already there and is imposing the greatest burden on those who are least able to bear it. Specifically, existing disparities in healthcare, the criminal justice system, and the workforce, among other areas, make Black, Latinx, and Indigenous people among the most vulnerable communities during this pandemic. And then add to that people who have disabilities, people who are poor or houseless, and people incarcerated in jails and prisons who also bear a disproportionate burden. So the ACLU's general approach on this issue is to ensure that the government places the needs of marginalized and vulnerable people first, that it does not, in other words, forget about the inequalities and particular risks that our most vulnerable people face. So with the sort of introduction to these meta issues, we wanted to give you a brief overview of the work that the ACLU has been doing nationally to protect lives and safeguard our democracy during the pandemic. And just as some numbers, since March, the ACLU has taken several hundred, two to 300 different pandemic-related legal actions. So we're going to just focus on a few issue areas today, which are voting, mass incarceration, immigration detention, and anti-discrimination. So the first issue, the Constitution prohibits measures that burden the fundamental right to vote. The ACLU has recently been really hard at work preserving this right, especially in advance of the momentous upcoming election. And to be clear, voter suppression and disenfranchisement have been occurring since before the pandemic began. But these problems have become even worse during the past few months and practices that were already burdensome before the pandemic have become that much more so now. The bottom line, as reflected in the top image, is that people should not have to choose between protecting their lives and exercising their rights to vote. Yet too many people, including those who have disabilities or who are medically vulnerable and those who are poor or houseless, are at risk of being forced to make that choice. So the ACLU is advocated to expand access to or facilitate no excuse absentee voting. No excuse meaning you don't have to justify why you are voting absentee. And so here on the slide, I'm not going to read them, are just a few examples of the types of issues that the ACLU has litigated in conjunction with others to protect voting rights and ensure safe equitable access to the voting process. So people locked up in jails and prisons were already among the most marginalized in our society, but the pandemic has greatly exacerbated their vulnerability. Because it is impossible to social distance or adhere to hygiene, safe hygiene protocols in these overcrowded and often unsanitary facilities, those who are incarcerated in our prisons and jails are sitting ducks for infection. Worse, because people constantly cycle in and out of jails, the failure to address the virus in these settings means the failure to protect the entire community. So the Eighth Amendment's prohibition on cruel and unusual punishment and the Fourteenth Amendment's due process clause require that corrections officials provide humane conditions of confinement, including adequate medical care and measures to guarantee the overall safety of incarcerated people. This of course means protection against infectious diseases like COVID-19. But too many correctional systems are failing to meet their constitutional obligations. So the ACLU has taken action, a lot of it. So we've sued in roughly 100 different legal actions to get people out of these facilities. And in particular, although we've sought the release of many people, we've tried to focus on those who are medically vulnerable, who have disabilities, as well as those who are being held pre-trial, meaning they have not yet been convicted of a crime, but who are too poor to pay cash bail. We've also done non-legal work in that we publish reports showing that decarceration has been smart, safe, and thoughtful. And as an example, Colorado decarcerated by nearly 50% without seeing any increase in their crime rates. And we've also lobbied for legislation in New Jersey. We lobbied for a law that basically gave sort of credits to people nearing the ends of their sentences so that they could be released early. Immigration detention. So the pandemic hasn't stopped our massive immigration enforcement apparatus. If anything, immigration authorities are going after immigrants with greater resolve. This has led to a crisis in which ICE has detained tens of thousands of people in closed cramped quarters, even though they pose little risk of danger or flight. And for reasons similar to the jail prison issue, immigrants continue detention risk their lives as they have limited ability to practice good hygiene or obtain adequate medical care. Because of these deplorable detention conditions, the ACLU has filed over 60 immigrants rights lawsuits relating to COVID, mostly against ICE detention centers. But in addition to that, in addition to seeking the release of people who are most vulnerable, we've secured federal court orders requiring ICE to conduct weekly rapid testing and to set up also separate dorms for COVID positive detainees. Another immigration related travesty that I want to highlight, and which is depicted in this picture in this image, is that the government has been attempting to circumvent due process by using the pandemic as an excuse to fast track the expulsion of migrants, including asylum seekers and children. And for example, in McAllen, Texas, we challenged the Trump administration's secret practice of holding thousands of children, including the person here, some as young as 12 months old at border hotels, like Holiday Inn, or I'm not sure if it was Holiday Inn, but you know, private hotels before quickly expelling them without giving them the chance to go through the legal immigration process. The last issue that we want to highlight is regarding anti-discrimination. As already noted, COVID-19 exacerbates inequalities, making already vulnerable populations more vulnerable. And COVID-19 has served as a fount for new forms of racism, xenophobia, and discrimination. Among other things, COVID has led to an uptick in discrimination and violence against people perceived to be Asian. It's led to an increased risk of infection being born by people of color who are more likely to be low-paid essential workers. And then there's also been more discrimination against people with disabilities and the elderly, particularly when it comes to the distribution of scarce health resources. So the Constitution's guarantee of equal protection under the law means that the government has a responsibility to address these kinds of unlawful discrimination. So in response, the ACLA has done a number of things. These are just a few examples, but we filed a lawsuit against the small business administration for excluding business owners who have criminal records from receiving COVID-19 relief loans. And there are just some other examples. We've sent letters to school leaders about educational equity concerns associated with the transition to remote learning. So with that, I'm going to mute myself and turn it over to Matteo to sort of shift the focus from the national level to the local context. Thank you, Wookie. So first I want to talk a little bit about the big picture and what's going on in Hawaii, both in terms of the government's response to COVID as well as our own COVID situation. And then we will talk about the ACLU of Hawaii's response again to the government's actions as well as some specific examples where we have acted. So in terms of the response by the government here, it has really looked very differently in each county, even on each island, with a number of proclamations and orders that do not always look alike. In turn, each county's experience with COVID has been very different with the vast majority of cases on Oahu and very few cases to date on Hawaii, for example, with Maui and the island of Hawaii somewhere in the middle. For purposes of today's talk, I want to focus on Oahu since it's the island with most cases and where most people in Hawaii live. Specifically, I will focus on the city and county's response as well as the COVID situation here. So the city and county, as you can read, was the first county to issue a proclamation of emergency on March 4th. And this was even before Governor Ege issued a proclamation of emergency the very next day. And the first proclamation did not issue any specific orders instead what he did is just suspended a few laws. Then the city and county, and I'm here, by the way, I really mean Mayor Caldwell because he is acting by executive order, essentially. Then he issued his very first order on March 20th, 2020, which did include a number of limitations, including it closed clubs, bars, and restaurants, except for picking up food. And then it required that people follow CDC guidance on social gatherings. That was on March 20th. This order was shortly followed by the first of many stay-at-home orders here. Since the this first couple of orders, the mayor has issued now 29 orders in the span of just seven months. And all of these orders were issued pursuant to Chapter 127a of the Hawaiian Revised Statutes, which is a law that the legislature passed a few years ago, which delegates to the governor and the mayor's certain emergency powers doing a state of emergency. Additionally, Chapter 127a provides that violations of the rules promulgated by the governor or the mayors have the force and effect of law. And if the rules state so, people who violate them can be found guilty of a misdemeanor punishable by a fine of up to $5,000 or one year in jail. Most of the orders include a provision making violations of these orders a misdemeanor under Chapter 127a, meaning every time the mayor issued one of the orders, it included language saying that violations of the rules would in fact lead to potentially a misdemeanor offense. Now I'm going to focus on the restrictions that affect people's and not businesses. Slide. So the orders have included all sorts of restrictions and they haven't always been consistent as we all here know. And sometimes even they haven't been internally consistent. And I'll give you a few examples of the different types of orders that have come from the mayor over time. In early April, there was a night curfew order doing Easter weekend. Also, in mid April, there was an order on face coverings for certain essential workers but not for everyone else. The first general order about wearing masks in public didn't come out until July 2nd, 2020, and it only applied to the outdoors. And then a week later, there was a similar order about indoors. And of course, that this doesn't quite make sense because as we all know, indoor situations are more dangerous than outdoors. Even these rules have changed over time, the mask wearing rules and the city and county hasn't always done a very good job about explaining those changes or the reasons for those changes. And as I said, because we have had so many emergency orders, it's really hard to even keep up with how they change. Perhaps some of the most confusing of all the rules were the rules about the use of public spaces. Over time, several of the orders have opened and closed, you know, beaches, public parks and trails, sometimes with or without restrictions. For example, at different points in time, we have allowed people to traverse parks. Other times we have allowed solo activities or certain physical activities. Or even, for example, for people going to the beach, even when they close the beach, sometimes we would allow things like fishing. So very specific rules often confusing. And as I said, because we have had so many orders, they have really changed over time. Most of these rules were issued with very little notice or and really no ability for the public to cut. Essentially, you know, the mayor would go on TV and I was at the rules where we're going to be issued. And then just a few hours before they went into effect, they would post them on their website. And this is really very different on how the administrative agencies normally are supposed to work and operate. Generally, we have a notice and common process for for most administrative action. And it's also very different from how the legislative legislative process works, where you have, you know, the legislature or the council having to pass laws or read laws multiple times before they go into effect. So in terms of the COVID situation here on Oahu, Honolulu really had very few cases, no more than 37 per day until around July 23rd, when cases really started going up. And they reached over 300 cases between August 12th and the state high until the beginning of September. And so really, you know, what caused that increase? It is hard to tell. I'm not a public health expert or an epidemiologist, but it followed a period where we had relaxed restrictions on most indoor businesses. And we didn't have yet rules requiring the use of masks universally. After the cases started climbing, the major first closed public spaces on August 20th. But interestingly, it left most of the businesses, including gyms, restaurants and services and retail businesses open. And as you can see from this slide, you know, on the right, and I apologize, it's a little bit small, but essentially, and that's from Civil Beat, they left a number of businesses open and yet they closed most outdoor public spaces, which was in fact the opposite of what the science fund experts were telling us was the same thing to do. So a week later, after closing public spaces, the mayor then decided to also start closing indoor spaces as well. And so you can see again on the right, some of the businesses that then started closing after August 27. During that time, and really with very little evidence that COVID was being transmitted outdoors, HPD, you know, created a, and by the way, HPD is the Honolulu Police Department, created a COVID enforcement team of 160 officers whose overtime was paid using part of $30 million in CARES Act funding. This team of officers went into a citation screen, issuing over 44,000 citations in just a month, which is normally what they would issue in the span of like two years, or you know, at least a year. And yet they issued 44,000 in just a month, most of them for people experiencing homelessness, which brings us to our response, the ACLU response to the pandemic. So as Wookie explained, you know, we have approached these issues with, in line with how our national office and other affiliates have done, which is that, you know, we think that generally the use of emergency powers during the pandemic can be legitimate for measures grounded in science, and when consistent with the need to protect public health and as well as for civil liberties. At the same time, you know, we think broad executive power should not be of use beyond the legitimate needs. And so as the city took some of the measures that I just mentioned, we have been pushing them both behind the scenes and publicly to safeguard people's freedom of movement, to process privacy, and of course, equal protection. We have pushed back to ensure that the government's plans were scientifically justified and no more intrusive than civil liberties are necessary. And just to give a few examples, and again, we will go into more specific examples later, but very early in the pandemic on March 12, 2020, we suggested to the Department of Public Safety that they begin preparing for a potential outbreak in gales and prisons. Again, this is March 12, 2020, when the pandemic hadn't even started coming to Oahu. We knew that something, you know, we could have an outbreak and we were asking them to prepare. We made a number of suggestions and we also asked them to sit down with us so that, you know, we could talk about their plans. Unfortunately, they did not want to sit down with us. Similarly, on March 27, we sent a letter to all law enforcement agencies, you know, every police department on each island, as well as the sheriff's office, on how to enforce the COVID orders. Again, we thought that this was a situation, as Wookie explained, that where tact and carefulness was important, where the orders we clear was important, and that people would be given an opportunity to learn about the orders, to live under them, and that the police officers should approach enforcement with humility and care. And so we gave, again, a number of, we gave the police departments, including HPD guidance. And initially, it sounded like some departments, including the Honolulu Police Department, were a little bit more cautious about how they enforce the orders, giving out more warnings and citations or arrests. But we also know that ultimately they didn't follow our advice, and in fact, again, went on this citation spree for a while. So, you know, in this respect, we are particularly concerned about the, and during that time, we were also very concerned about measures and restrictions that had a disparate impact on disadvantaged groups. And, you know, we will talk a little bit later about, you know, specifically the Macronation community and, you know, people experiencing homelessness and how some of these restrictions were, it seems to me, written to target at least people experiencing homelessness. The overall response by the government really hasn't been great, you know, from a civil rights civil liberties perspective. They have relied way too much on the criminal legal system and the police for what it is at heart, a public health crisis. And we think that's why we still don't have COVID under control. You know, I'm not aware of any place in the world that has cited or arrested its way to fewer COVID cases. Issuing 29 orders by executive action, creating all sorts of new criminal violations, often vague and poorly drafted, without public comment or public input is not always, you know, the best and most adequate response to a public health crisis either. You know, rules need to be consistent, simple, clear, and based on the best science and evidence. And we, of course, understand that, you know, COVID was unprecedented and the science and the evidence changed over time. So we're not suggesting that, you know, of course, you know, now we know a lot more about the virus, we know better about the science, but even so we believe that the city was often fighting the science and fighting the best evidence at that time. And, you know, enforcement should be measured and careful and used really in situations that truly harm public health. And so giving citations or arresting people who are by themselves at the beach or by themselves in a public park in a situation that they pose no harm to anyone else, quite honestly, doesn't make sense, even from a public health perspective. Similarly, oversell as enforcement, as Mookie explained, erodes public trust in the government and makes it less likely that people will follow the rules. You know, if the rules make sense, if you provide the right incentives, you make it much more likely that people will do it voluntarily. Finally, you know, while the government has wasted, you know, precious time and resources in policing and monitoring people with really very little to show in terms of, you know, results, except, you know, public frustration from the 58,000 citations that they ultimately issued and a giant backlog of cases in court, you know, they haven't spent nearly as much time and money in education and resources to make it easier for people to comply with the rules. I do think though that the good news is that at least the city and county seems to be going in the right direction by creating a tiered system that provides a lot more guidance to people about how the rules work, you know, and expectations for businesses and everyone else about what, you know, how things will move forward. So now I want to talk a little bit about specific examples in which the ACLU of Hawaii was involved and where we push back on the government response to a pandemic. And I should say we have been careful and measured understanding that even when mistakes are made, they're not always made on purpose and that in situations that are difficult and evolving, the government in fact is going to make mistakes. So the first thing I want to talk about is the emergency order citations that I mentioned earlier. So even before, well, actually, this is about arrests, not just the citations, but also arrests that happen to people because they allegedly violated COVID-19 orders. So even before the HPV went on incitation spree in August, September, on June 29, 2020, Ashley Misuo from the Hawaii public radio published a story based on data from the Honolulu Police Department, which showed that during the first few months of the pandemic, HPV was 30 times more likely to arrest a Micronesian person and five times more likely to arrest a Black or Samoan person for violations of COVID-19 orders than to arrest a White person. Similarly, a person experiencing homelessness was almost 50 times more likely to be arrested under the orders than a House person. And look, we're not suggesting with this that there is a very racism or bias by the police, but I think as I said earlier, these orders were designed in many ways to punish people who were experiencing homelessness and the way the enforcement happened, it happened around poorer neighborhoods, poorer areas, public housing areas where you would find more Micronesian people or where you would find more people experiencing homelessness. And so, for example, one of the first things the Mayor did was to close parks at a time when there was no shelter available and where the CDC had, in fact, issued guidance telling the city that if people were experiencing homelessness, they should let them stay put because making them move increased the likelihood that they would spread the disease. And yet, the city did the opposite. They closed the parks and then they went against people experiencing homelessness in a very harsh manner, in fact, arresting overwhelmingly people experiencing homelessness. And we also understand citing overwhelmingly people experiencing homelessness, again, for situations they had no control over. So, based on their reporting from HPR and also similar reporting from Sybil Beat, we sent a letter to Chief Ballard demanding that HPD make four key policy changes to the way they approach enforcement, not just of the COVID orders, but just enforcement in general. So, these are the four common sense changes that we asked Chief Ballard to make, which, again, HPD has been so reluctant to make really any changes to their internal policies. And even though she initially said that they were going to offer racial bias training, which we said in the letter, it's a step in the right direction, ultimately, they really didn't address any of the four concerns we put in our letter. The first one is that we asked them to end the aggressive enforcement of low-level offenses. And some of you might have seen recent reporting about how HPD has one of the worst clearance rates for violent and property crimes in the country. And that's not a fluke. Three in four arrests that happened in Honolulu between 2007 and 2017 were for nonviolent, non-properly offenses. So, offenses that don't involve property, offenses that don't involve violence. Things related to substance abuse, things related to homelessness, that's three in four arrests. And that really begs the question, what is the purpose of the police? Are we using the police to just address issues like a housing crisis, like a substance abuse crisis, which ultimately is a public health crisis? Or are we using the police for the intended purpose, which is to solve crimes related to violence and property? And it sounds like we are using it for the former. We're using it for things that the police are not well-designed to do. And we continue doing that during the pandemic. As again, during a public health crisis, we decided that the best use of resources was to go on a citation screen. So, we called HPD to the prioritized enforcement of low-level offenses, recognizing that the criminal legal system is really ill-suited to address things like what I said earlier, substance abuse disorders, mental health issues, and homelessness. The second thing we asked HPD to do was end racial and wealth based profiling. And as I said, many of these orders were written in such a way that by default, they were going to be enforced more against people experiencing homelessness. It was all about the outdoors and about closing public spaces. And then people experiencing homelessness had nowhere to go, particularly because indoor settings, such as shelters and indoor congregate settings, I should say, such as shelters became very dangerous during the pandemic, as it was very easy to catch the disease if you were indoors. So, many shelters were in fact not even accepting people experiencing homelessness. And still to this day, it is hard to get into shelter because they have so many protocols in place. So, what we asked the police is, first of all, we were very specific. Profiling is not only about bad actors with racist intentions. It is also about facially neutral policing, so policing that on its face seems fine, but it has obvious and large disproportionate impact on specific populations. Similarly, we are very explicit that arresting people for COVID-19 orders doesn't make sense. If you're really concerned about the spread of the disease, having additional interaction with someone out and then bringing them in potentially to jail and booking them, what that does, it increases the chances that people will get COVID. And so, we asked HB to adopt a model racial profiling policies that clearly define what racial profiling means and prohibit law enforcement from engaging in it and also make very clear that it is unconstitutional under the Fourth and Fourth Amendment. And even though the HPD does have a racial profiling policy, in our opinion, is just not sufficient. The third thing we asked was, you know, we asked them to end the use of law enforcement numbers to measure productivity and effectiveness. And this actually came back during the citation screen that I mentioned earlier, as HPD went and started giving citations, we started hearing about quotas and essentially people, you know, the government or sergeants putting pressure on nine officers to give more citations and to show productivity by the number of citations, the number of warnings they get. And that doesn't really make sense. You know, if you tell officers to just go out and give citations, they're going to do it, even in situations where, again, there is no public health risk and where perhaps the person is not even violating the law. And so we asked HPD to reduce its reliance on stops, citations, summons and arrests and really broaden their benchmarks for measuring success to rely instead on things like community satisfaction with law enforcement, the rate of racial disparities in their arrests, and also the number of serious crimes they actually solve. And then finally, the last thing we suggested is that they collect and release data for a range of police practices. We, you know, we really need better data in Hawaii to understand, you know, what are, you know, what are law enforcement's priorities, as well as what, you know, how those priorities might have a different impact on different people, different groups of people. And that means we need better and more frequent data for arrests, citations, stops and searches. We're asking the Honolulu Police Department to publish better and a more comprehensive set of data, more frequently, because they only provide data annually. And even that data doesn't really have a lot of racial breakdowns. And so from our perspective, that's ultimately the only way we can hold the Police Department accountable. Unfortunately, you know, it's very, very hard to get this data when we might, when we have made public records request in the past, we don't get it. And you probably have heard now from both Chief Ballard, but also Schopel, all the efforts they have made both to keep some, some information and data not public, as well as the fact that they even claim that their own data is wrong. So, so we need better data and is the only way we can hold Police accountable. Now I'm going to turn it back to Wuki where he's going to talk about mass incarceration and what we have done here in Hawaii to address mass incarceration from COVID. Thanks, Mateo. So I've already briefly mentioned sort of the mass incarceration issues. But here locally, beginning in March, the Office of the Public Defender initiated proceedings in the Hawaii Supreme Court asking the court to take immediate steps to significantly reduce the jail and prison populations in light of COVID. I'm not here to summarize everything, but in short, the process has had its ups and downs. By mid-summer, it had resulted in the release of about 650 people. But the court in June also prematurely terminated the proceeding on the belief that the threat of the pandemic had already passed. This, of course, proved wrong and August saw the detection of the first major outbreak at the Oahu Community Correctional Center, which is the state's largest jail, where 300 detainees were infected. So the Public Defender in early August filed a new petition and that proceeding remains pending today in light of the ongoing presence of COVID in jails and prisons. So the ACLU of Hawaii supported the Public Defender's efforts throughout this process since March. First, alongside Lawyers for Equal Justice, we filed an amicus brief in early April that asked for a variety of relief, including the appointment of a special master, the setting of a specific decarceration target, and then expedited hearing and release procedures. And earlier this month, we filed another amicus brief, and this is just the table of contents for it, this time arguing that the court should adopt standards under the relevant state constitutional provisions that are more protective of detainees' rights than under the U.S. Constitution. And throughout all of our briefing, our goal was also to provide relevant context to the court, context that the parties had not focused on or provided. And to that end, we, for example, submitted an appendix of nationwide court actions to reduce incarceration in light of COVID. In other words, we wanted to show to the Hawaii Supreme Court that if it were to take certain action, it would not be alone in doing so. We also retained and submitted declarations from a prison medical care expert, who is also a court-appointed monitor in Illinois, who also happened to be the supervising, attending psychiatrist at OCCC, and who was therefore someone who was uniquely positioned to comment on the protocols within DPS. We also sort of provided input from the community. We submitted an open letter that had been signed by over 130 individuals and organizations. And that asked public officials to look out for the interests of people who are incarcerated. We also included analyses of population trends and testing numbers. Here in this brief, we had sort of demonstrated that while there was a significant decrease in the jail populations early on, that reduction had sort of reversed by mid-August. And finally, we incorporated declarations from family members and impacted people. And here, we have a declaration from the mother of someone with several serious disabilities. And that perspective was provided on conditions within OCCC and other DPS facilities, as well as the general failures of DPS to accommodate people with disabilities. And so I wanted to also highlight one exhibit we attached. One of the shocking things that we learned through this process is that in late July or early August, DPS began circulating among detainees this next-of-kin notification form. And in the experience of one family member whose son has been incarcerated by DPS for over 20 years, it is quote, unprecedented that DPS would ask the men to fill these forms out, end quote. And that requiring these at this time means that or suggests that DPS is quote, preparing for them to die. And so with that, I will turn it back over to Matteo to present a little bit on our last issue, which concerns privacy. Just, Matteo, just in terms of time, we have nine minutes left, and we do have one question. So I'm just wondering how much time you want to leave for questions at the end, because people might have some. I think this shouldn't take too long. We should be done within nine minutes, and then we can take questions for half an hour or so. So I want to talk a little bit about some of the surveillance privacy issues that have come up during COVID. And this doesn't concern the city and county. This concerns the state of Hawaii. But some of you might have read that the state proposed the use of facial recognition technology at the airport here to essentially screen people with high temperatures at the airport. And from the very beginning, we were concerned, because it is about the use of a technology that essentially tracks people in real time, whatever they are. And they would be able to say who you are with, perhaps where you are traveling, things like of that nature, depending on where they're put in place and whether they are connected to other databases or not. And so we send a letter to DPS, sorry, to the Department of Transportation explaining that we thought that this was unwise and unnecessary. But let me take a step back. When they first decided to install these cameras, they were spending $37.5 million of CARESAC money to install the cameras with facial recognition. And essentially, at a time where we were not spending money even on things like tracking our own cases or having enough tests. And yet here we were, one of the first measures the state announced was the expenditure of almost $40 million in CARESAC money for this purpose. Unlike many biometric systems, facial recognition can be used for general surveillance. And again, in combination with public video cameras, it can be used in a passive way that doesn't really require either the knowledge or the consent or participation of the person who is being surveilled. And the biggest danger here is that the technology could be used for general suspicion less surveillance of everyone. And so when we sent the letter to the Department of Transportation, we explained four things or four reasons for why they should not use the technology. The first thing is that the use of facial recognition technology at the airport is not effective and is unnecessary. There are safer alternatives which involve human beings screening people with high temperatures and other symptoms. And these raises far fewer concerns that facial recognition technology does. Second, the facial recognition technology is right for abuse and lack of transparency about its use is really concerning. And that's why companies like Amazon, Microsoft, IBM, who stand to profit from this technology are in fact hitting the brakes on this development. And here in Hawaii, we still don't know the rules and guidelines on how exactly this is going to work. We don't know about the algorithms that are going to be used, the access limitations that are going to be put in place, the security measures, things of that nature. And so we really need to have a better understanding of how things are going to work. And even though the state claims that the information is only going to be kept for 30 minutes where the person is at the airport, again, it is unclear exactly how that's going to work. Third, we had really serious concerns about the technology being potentially unconstitutional, particularly here in Hawaii, both because it affects people's right to travel as well as the right to privacy, which is guaranteed by the Hawaii Constitution. You know, the Hawaii Constitution, unlike the federal Constitution, requires that invasions of privacy be narrowly tailored to serve a compelling government purpose. And so here where we were telling the government, there are better ways to screen for COVID than facial recognition technology paired with thermal technology. And in fact, the CDC and public health experts agree with us. It is very hard to actually catch COVID cases based on just measuring fever alone. And even if you use it, at any beginning point, many people even with COVID are asymptomatic. So it wouldn't really work for that purpose. And so ultimately what we were asking the government to do here is to have a transparent and open discussion about this major step, because this is the first time we're deploying facial recognition technology in Hawaii. It will not only affect us, but it will affect all the visitors that come here, which are sometimes are in the millions under non-COVID times. And so, you know, we essentially asked them to keep the brakes and allow for, you know, a public conversation about the use of facial recognition technology here. Unfortunately, both the Department of Transportation and the State of Hawaii have decided to just continue down this path, which in our opinion is really more about public health theater than about actually dealing with the pandemic and real public health. And so I think with that, we can open it up for questions. Thank you, Mateo. Gerald had one of the first questions where he said, I have a question regarding equal protection in the 14th amendment. It seems that the word person is arbitrarily taken to mean citizen by some, even though there seems to be a distinction within the amendment. I'm happy to take this one. So, yes, and that's a very good point. And it's something that, you know, specifically the Trump administration, when it comes to birthright citizenship, has been arguing for different readings of the 14th amendment, not just the equal protection clause, but also other parts of the amendment. And it is, it does say person and courts have uniformly held that it includes non-citizens. And so, you know, that's settled. However, as I said earlier, the Trump administration has at least suggested that it wants to take the position that, you know, people, not everyone who is born in the United States can be, would be a citizen under the 14th amendment, which is an unprecedented reading of the amendment. And it's something that actually, you know, I know the ACLU and other organizations are very concerned about if there is a second term, because, you know, it's something that could be one of the priorities of the administration. Thanks, Mateo. Would you stop sharing? There we go. That way we can see you even better. Thank you. Gerald, did I answer your question? Or did you have a follow-up on that? No, that's, that was very good. It's just very disturbing. And thank you very much. I'm glad that it's being recognized and addressed. Thanks, Gerald. Mateo, oh, Sana, you have a question? Yeah, go ahead. I'm a white key resident, and I often wonder about the ACLU position on homeless, because I am concerned as much about common good as the individual rights. And very often our public spaces are used for certain individuals, rather than for the common good. And the homeless, for example, along the alloy, don't wear masks, don't have sanitary safeguards. I don't keep social distance, which means that that's social space for the common good. It's compromised terribly. We're, mothers with carriages, older people, joggers. Isn't that a problem for you to protect the common good as well as individual rights? I guess we both can chime in. So first of all, I'm glad you framed the question as us being concerned about the civil rights and liberties of people experiencing homelessness. And we are concerned about the civil rights and civil liberties, as well as everyone's. I'll say this. We don't take the position that people should leave outdoors, or should be in public parks, or should be on the sidewalk. I absolutely understand that people should not leave under those conditions, and that they are in fact, in many ways, unsafe. The question is whether you want to use the criminal legal process and make of them criminals, which essentially makes it less likely that they will be able to get out of homelessness. And it doesn't solve anything. People don't get housing that way. They don't get services that way. They don't get public health that way. So we are against the criminalization of people for their poverty and for being homeless. We are not suggesting that people should leave outdoors. We are not suggesting that people should be in public parks forever. But we're saying, where are they supposed to go now? If the government is telling them that they have to get out, then you need to have enough shelter. You need to have public housing. You need to have wraparound services to address them. Unfortunately, that's not what we're doing. In fact, we're spending a lot of resources in criminalizing them and creating all sorts of systems and perverse systems, including, as I said, the police department has an entire team of 160 people going around whose job pretty much is to harass people experiencing homelessness or violations of poverty. So to us, that's cruel and human. And we will always oppose it. Because it's not again about... I agree. The public good is that all these places should be clean and free, and everyone should be able to use them. But you cannot criminalize people just because they're poor, particularly when there's no enough housing. Thanks, Mathew. We have a question from David Miller. He asks, is a state or other government agency obligated to respond to ACLU's comments or concerns? So basically, who is obligated to respond to your concerns? So obviously, they are not required. We are a non-profit. We're like any citizen or any organization. And we submit letters, we submit our views to the government and often cite cases or cite data and explain why we think the course of action we suggest is the better one. And often the government has an option of either following our advice or not following it. And often they don't, unfortunately. And then the question is, do we file a lawsuit if someone's rights are at stake? Or is there another way we should address it, which is why we also have public education program. We also have an advocacy program. We now have someone who's doing organizing and field work full-time. So we use different tactics depending on what we think would be the best. And sometimes finding a lawsuit, it will feel like the right thing to do, but it might not solve the overall overarching issue or the systemic root causes of things. So I don't know if that answers the question, but... Maybe to pose a question in a slightly different way is, who has power over the government to make change? All of us. It's about what is going on Tuesday and it's about voting. But also holding people accountable after each election and remaining engaged. And in fact, that's so important. We have seen a lot of support from everyone during the Trump years. And if on Tuesday, we have a change in administrations, it's so important that people remain engaged. It's so important that we all hold administrations, whether Republican or Democratic accountable. So yeah, it's ultimately about civic engagement and public engagement and voting and submitting testimony, which is why we have a policy program and organizing, which is why we have now a field program. And it's all one of my favorite descriptions of the First Amendment is that the First Amendment captures the entire democratic process. It includes the right of assembly. It includes which is about getting together. It includes the right of religion or beliefs, which is about your own beliefs and the ability to express those. Of course, freedom of expression, but also petitioning the government. And so it's about engaging, using those rights to make the government do what you think is the right thing to do. Okay. I think Helen had that. I'm just waiting, Seiji, for this follow-up question from Helen. So Helen said that the ACLU has often highly unpopular points of views. On the COVID issue, what has triggered the most negative feedback or backlash for the organization? Is the answer the same nationally and in Hawaii? Okay. Do you want to answer that? Sure. I mean, I think on this issue or on this question, probably the efforts to decarcerate jails and prisons has been both locally and nationally one of the flashpoint issues. And probably also locally, but maybe not as much nationally, the advocacy around people experiencing homelessness. And in particular, I think there was the impression, and I'm sure it still exists, that the ACLU supports mass release, supports uncontained sort of like free-for-all release of sex offenders and murderers and whatnot. But the reality is that that is not the process that we had asked for. And that is not precisely what we had contemplated. Of course, it was a much more nuanced position than that. But even for those who are the convicted murderers or what have you, they should not necessarily be given a death sentence or something close to that just because of the fact that there's a pandemic. And we have carceral facilities that just aren't built to address these kinds of infectious diseases. And so we will still, no matter how much hate mail we get, which we get a lot of, no matter how much hate mail we get negative comments, we will still do our work and still protect the rights of those who are most vulnerable. Thanks, Wookie. And this is a related Seiji. And Seiji doesn't look like a question, but more of a comment. I just wanted to make sure that people saw it. So Seiji says, for being arrested at much higher rates, the Micronesian community in Hawaii has been devastated by COVID. With non-Hawaiian Pacific Islanders accounting for 27% of the total cases, despite being only 4% of the population. Did you want to follow up on that statistic, Seiji? No, this was just a comment. It was really just a comment. So it's quite, I just found it ironic that the attempt to arrest our way to safety seems to be, if anything, counterproductive. And I think it's been particularly with the Micronesian community or people who first language might not be English. It's all about outreach. It's all about public education. It's all about providing the right incentives, positive incentives. It's not about sending the police and arresting people and citing them because that's not going to work. And many working people who are essential workers were also the more likely to get COVID because they were out and about working while people were at home. So to me, yes, this is part of the failure to take proactive public health-based steps by the government. And to be fair, I think the Calvary administration and even the state has in the past few months recognized that this was a failure and now they're spending more resources for outreach and explaining to people how some of these orders work. Because again, they would come out literally on a Wednesday and then on a Thursday they would be in effect. So how do you even expect everyone to know what the rules are? Any follow-up on that? Okay, very much so. I think that also in the end, I think the state has really fell down on its face in trying to achieve any sort of control over the epidemic, particularly with regard to the Micronesian community. But it turned out that our public health authorities in the end, they didn't actually believe in testing contact tracing or quarantine or isolation facilities for anybody. But in particular, for Micronesians, these public health 101 measures really just weren't on offer. And so in particular, the multi-generational, crowded housing that the Micronesian folks live in just burned out the coastal communities and essentially our public health leaders fiddled while the community burned. Thank you. Yeah, that's unfortunate. Andrea has a question here. She says, hello Mateo and Wookie. As a former member of the ACLU of Hawaii Board of Directors from 1997 to 2017, that's a long time. I remember the ACLU's many years of work on the spear consent decree. Are the issues of overcrowding of the incarcerated just as bad as it has been for decades? In short, yes. And I think and maybe Mateo can speak more to this, but in some senses, it's gotten even worse. Just the simple numbers or demographics calculation where the facilities have largely stayed the same in that time period. But of course, our population is growing. And with that, the number of people who are being incarcerated in jails and prisons. So in short, it's still a problem. And overcrowding is part of the reason why we were so adamant about supporting the public defenders during the pandemic. Because a lot of these facilities that were designed to have one person per cell are actually holding two or three people per cell as a baseline. And of course, that makes social distancing and responding to the threat of COVID basically impossible in those facilities, which is why we pushed for release. I'm wondering if the fundamental issue here is that I don't know how it is in Hawaii, but in many states in the US, prisons are our business. And so somebody is making money out of it, incentivizing the system to put more people into jail. How is the prison system in Hawaii? Is it government owned? Is it privately owned? Because if it's privately owned, then there's a big incentive to have more people and make more money. So that's a really great question. In Hawaii, we have a mixed system in that or jail system. It's all owned and run by the state, but our prison system. So jails are where you go either pre-trial before you have been convicted of a crime. In theory, it should be rare, but in Hawaii, it's not rare. Essentially, anyone who cannot post bail is in jail. And then people convicted of misdemeanors are in jail. People who essentially are, you know, are not supposed to be longer than a year in a correctional facility. And then we have a prison system. And that is a mixed system where we do have, we contract out with facilities in Arizona on their core civic and in saguaro. And yes, so there is potentially a profit incentive involved in that core civic, of course, lobbies or legislature, of course, they want to potentially expand the use of their facilities. And more recently, we are very concerned because we understand that, so as Wuki mentioned, we have jails that are very old. They haven't been maintained and are terribly overcrowded. And so the state is planning to build a new jail here on Oahu, particularly as they're building a rail system. They want to move the current place of the jail, which is in a very desirable location next to the prison. And so they are considering contracting with a private company to design and build the jail, not necessarily operate it, but design and build, but the same incentives apply, which is that, you know, because they're designing it and building it and then dishing it back, they want to build the biggest building possible. And if we haven't learned anything is that if you build it, March is going to get filled. And so for a long time, and to answer Andrea's previous question a little bit more, you know, we after Spears, you know, we recognize that, well, things got a little bit better during Spears. Ultimately, that also led to people being, for example, sent to the mainland. And it also said ultimately resulted in people being sent to private prisons. So filing these lawsuits definitely had unintended consequences. So instead, we have shifted our focus from, you know, pure conditions cases into trying to actually decarcerate people, because the fact of the matter is that the reason for overcrowding is that we over criminalize, we over penalize, you know, we over please things here in Hawaii, as everyone now knows of under COVID. And so we need to address that if we want to actually address overcrowding. Can I follow up sitting? I wanted to ask as well about all the women who are being sent to, you know, Arizona, Kentucky, places like that, because of travel restrictions are, I mean, has it gotten to the point where people cannot even, people from Hawaii cannot even visit the people who are in mainland private prisons or, you know, just in places that are less accessible because of COVID? Yes, I mean, I, as far as I know that that's happening, we continue to send people through the pandemic. You know, we have sent planes to Arizona, a full of men and women. Well, I think it's mostly men, but yeah, to Arizona. And their family members, you know, they really, if they want to visit, at least during their when we had a quarantine, it would really mean that they would have to go there. And then if they wanted to come back, they would have to quarantine for 14 days. And even visitation, I don't believe it's at this point, necessarily allowed in most prisons and jails. So I'm not even sure they would have been able to see them in person. So, and that's one of the things we said in the briefs we filed with the Hawaii Supreme Court here is that, you know, these are really terrible places under normal circumstances. You know, jails and prisons are really bad. Pre COVID, post COVID, it's really horrific because essentially, for both public health and security reasons, jails and prisons have had to take really extraordinary steps where people are often in their cells for like 18 hours a day, 20 hours a day, they don't have visitation. They barely have any rec time, and they barely have any real time. And so whatever conditions existed before COVID were just excessive. And actually, that issue is one point that was made by our prison medical care expert who is a psychiatrist and knows all about the mental health issues. And specifically, that practice of isolation is de facto solitary confinement. And of course, solitary confinement has been shown to dramatically worsen pre existing mental health and other issues. And so we were very concerned about that practice being used within facilities. Thank you, Sabine. This is our key. I just usually I break it 115 to tell people that the meeting meeting is officially over, that it's okay to go back to their office, but I don't know what he goes back to their office anymore. I just wanted to call a short break there in case. And if you feel don't don't feel that you're not being polite by leaving at this point. Otherwise, let's continue for another 10 minutes or so. For those who wish to stay. Thank you. Thanks, Arke. Okay, so maybe let's get to your question. You said, is there is their case law helpful in the freedom versus public safety polemic? So that's an interesting question. I mean, of course, there there is and it's sort of the question of what level of you know, how factually analogous is the context, but the the case that recently has been cited a lot is a 1905 case involving Massachusetts requirement that people get smallpox vaccines. And that has been cited by many, many courts dozens, probably maybe hundreds in recent months for the proposition that sort of the government, whether it's federal or state, that the government in the name of exercising its police powers has the ability to take such drastic measures such as requiring vaccines. And I think it specifically in Massachusetts, there was a criminal prohibit, you know, there was a criminal law that if you didn't pay a fee, or if you didn't do something regarding the vaccine, then you could get punished. But even though that's the case, if you actually read the language of the case, it's a little bit more nuanced. And basically, while it recognizes that there are certain public health emergencies that justify more drastic intrusions on civil liberties, there is still ultimately at the end of the day, a balancing act that needs to be played between the interest that's being addressed by the government action, and making sure that it is least restrictive, and that it's really tailored to addressing the problem. And so even though it's been cited a lot and including Chief Justice Roberts citing it, it doesn't stand for the proposition that the government, whenever there's some kind of public health emergency, has just unchecked authority to do whatever it wants to do. But that's, again, emergency, this is a public health emergency, but even cases from the national security context and other emergency or crisis situations do provide some guidance as to what the government can do here. And just to add quickly, I do think that as the longer we have to live with COVID, my guess is that the more courts will be willing to be a check on government action, particularly government action that doesn't make sense in either science, in either alternatives that exist out there. Courts, of course, are willing to give the government some leeway initially when things are still developing and where we don't know all the facts and when. But we are already, we're in November, and so we have had to live with the pandemic for almost 11 months, 10, 11 months. And so you're starting to hear some courts push back against the idea that anything goes. And so while at the beginning they might be more willing to cut the government some slack, I would expect that if this continues, which is a real possibility, because even with a vaccine, it might not be 100% effective, that it will mean that the government can just indefinitely continue with the orders the way they have. And of course, it is, as Wookie said, it's all about balancing the public health benefit with how restrictive the restrictions are, with how good of a fit they are. And I think one of the things that ACLU has said all along is that there are things you can do that have little, you know, don't really place a big burden on civil liberties, and that those are the things that the government should be doing first. Sometimes you do need incentive, you know, you need to criminalize some behavior, but you should start from the perspective that you make it easy for people to follow the law, make it easy for people to correct them. Do you expect as a follow-up, Mateo, do you expect a someday, somewhere somebody's going to sue the police department for false arrest because they were fine for not wearing a mask, whereas where the plaintiff alleged that they were violating his rights as a free individual, that kind of thing? I mean, so yes, I do expect, we'll see some lawsuits like that. I think one of the difficult questions is going to be, you know, what is the fundamental right or liberty at issue? And so not every restriction, you know, poses a significant burden on your liberty. I think sometimes you hear people saying like wearing a mask somehow, like, it's a fundamental infringement on your liberty that there is no, as far as I know, there is nothing in the Constitution protecting you're saying whether you have a right to not wear a mask. So I don't expect those cases to be successful. I think the more interesting cases are, for example, someone out and about during some of these COVID orders, perhaps protesting or filming government action, and they are getting cited for under some of these rules. And so those cases, I think, do pose important questions as to whether the orders were gnarly tailored to serve accompanying government interests, particularly because not every order has had First Amendment exceptions in place. Instead, they have said they apply broadly and they apply to all public gatherings, regardless of whether, for example, the exercise social distancing or wear a mask. Thank you. Mateo, a question from David. He says the ACLU did a mailing comparing the positions of candidates for prosecutor. Is this normal or appropriate? I'm happy to answer that. So the ACLU, we were non-partisan, as Luke said at the very beginning. But going back to the very beginning when we were founded, we do provide public information, public education information to people. And we think that voters should be informed about people's positions. And so we have in the past, not only in prosecutor races, but also in races for Congress, the legislature, even at one point, we had advertisements explaining to people what Chris Coback did when he was running for governor in Arkansas, I think. So we provide information to people about people's records, about people's positions, or candidates' positions. And yeah, from our perspective, a more informed electorate is better and it definitely fits within our mission. We do not endorse candidates and I don't think that will change. Okay, Sabine, is it a good time for me to close the meeting? That's great. Thanks, everyone. Okay, thank you very, very much, everybody. Thank you, Sabine, for keeping us in line. Thanks to FICTEC Hawaii for recording this. They'll let us know when it'll be available for viewing and I'll let you know. Thanks to our, most of all, thanks to our speakers today. Wookie and Mateo did a terrific job. That was a wonderful presentation and we're just terribly grateful and it's good to see everybody again.