Community-Driven Litigation

“Filing lawsuits can create a sense of agency among communities, rather than allowing them to believe nothing can be done.”

– Antonio Gutierrez, Co-Founder, Strategic Coordinator, and Community Organizer, OCAD

what is Community-Driven Litigation?

Litigation is an important tool to hold actors within the U.S. immigration system accountable for violations of due process and other rights. But community-driven litigation differs from traditional litigation in that it requires a re-imagination of the relationship between attorney and client––the attorney is not an “expert” but an “ally.” Community-driven litigation recognizes that those closest to the problems are best suited to design the strategies necessary to transform the system. It is one way that communities can use and shape the laws that impact their lives.

Lawyers hold meetings in community organizations based in the areas that they serve, engage in active translation of legal materials and strategies into a language that community members can understand, use data collected by community members to support legal claims, and take litigation actions based on community-led decisions. Community-driven litigation may range from representation on specific individual cases, to strategic litigation that addresses the systemic needs of the wider community. The common denominator is that affected people and organizations determine the litigation goals. When communities are aware of litigation efforts, they are better able to monitor decisions and fight for them to be enforced.

Community-driven litigation in action

black alliance for just immigration (BAJI)

Following the George Floyd uprisings of 2020, BAJI’s legal team alongside its partners at the American Immigration Council (the Council), learned that the federal government deployed its law enforcement arms both to assist local police to repress these protests and to engage in their own enforcement activities under the guise of protecting federal buildings. Officers from U.S. Customs and Border Protection (CBP) descended upon numerous U.S. cities to crack down on protesters, often using violent and dubious tactics. To shed light on CBP’s involvement in these protests, BAJI and the Council filed a request for records under the U.S. Freedom of Information Act (FOIA) and later filed a lawsuit. Media reports in June 2020 exposed CBP’s role in policing protesters and the public began to understand the extent to which CBP—an agency many believed was confined to border enforcement—deployed personnel, aerial surveillance, and other federal law enforcement resources to cities around the country. The work done by BAJI and the Council, however, demonstrated the pervasiveness of CBP’s deployment and the limited training CBP officers had in dealing with this type of scenario, which required a keen understanding of protesters’ rights under the First Amendment to the U.S. Constitution. BAJI and the Council’s transparency work would later produce this report, Beyond the Border: CBP Presence at Racial Justice Protests in Summer of 2020, showing that CBP’s mandate has expanded far beyond the border and lacks oversight. Please see here an in depth analysis on the report by the Intercept.

BAJI also works with Black migrants in detention centers who can speak to the long history of human rights and due process violations, sometimes with tragic and deadly repercussions, for migrants in Immigration and Customs Enforcement (ICE) detention. For over three years, BAJI and detained community members have pursued FOIA litigation to produce evidence of abuses in detention centers. Usually, BAJI community organizers, involved in local abolition campaigns and informed about what is happening at various U.S. detention facilities, and coalitions take the lead on this front. For BAJI’s ICE FOIA campaign, BAJI organizers and legal team work with the Southeast Dignity not Detention (SDND) coalition. The coalition first focused on investigating what was happening within each target facility in Louisiana. During this investigation process, BAJI and coalition members assist with CRCL (civil rights and civil liberties) complaints, habeas petitions, and substantive defensive asylum cases for migrants detained in Louisiana.

With community partners, BAJI is creating accessible materials and campaigns related to BAJI’s ICE FOIA litigation. It is working on making the information gleaned from the litigation––such as physical and verbal abuse, isolation, medical neglect, and anti-Black discrimination––public and accessible for others impacted by the same patterns of abuse. Currently, BAJI is organizing a campaign around the Winn Correctional Center in Louisiana that highlights the uncovered abuses experienced by Black migrants in detention.

A group of people sitting at a table with masks

A group of 3 people sitting around tables on a couch and armchair over papers

Beyond Legal Aid and OCAD

Beyond Legal Aid and Organized Communities Against Deportations (OCAD) often partner up in community-driven litigation which overcomes some of the challenges that can occur when litigation is divorced from community input, or worse, community objectives. When lawsuits and grassroots mobilization and advocacy are in harmony, communities and lawyers strive towards favorable court outcomes that are connected to community goals. The litigation is crafted with the community to frame rights as communities see them and seek remedies that communities find just. When community members are aware of litigation they can ensure enforcement and monitor judicial decisions. Integrating the goals of community movements into efforts happening within courtrooms is essential for legal empowerment.

Beyond Legal Aid’s community activism-lawyering model shifts the power of the law into the hands of communities directly impacted by injustice. Instead of having to rely upon lawyers and legal organizations located outside the community––with their separate priorities and restrictions––Beyond enables communities to create, invest in, and most importantly, control how legal aid is provided to their members. Beyond Legal Aid refers to its approach to lawyering as “community-cubed,” meaning it is community located (Beyond staff work out of community spaces so as to be physically situated within affected communities), community operated (programs are operated by community partners), and community directed (the direction of any given project is decided upon by the community).

Beyond identifies activist organizations working in a community and OCAD partners with attorneys to pursue immigration claims. Beyond works with community partners to assess their needs and provide information on various options, while OCAD invests time and effort to translate legal strategies into language that individuals can understand. This dynamic changes the perception that attorneys are saviors and instead, teaches and spreads knowledge to other community members, building a strong collective force. OCAD does not view itself as a service provider, but rather as an organization that ensures immigrant community members themselves have agency. While OCAD provides the necessary resources and tools, decision-making remains with the individual. OCAD sees litigation as part of a broader movement for systemic change.

Just Futures Law

Just Futures Law co-designs litigation strategies with clear visions and goals with its partners––grassroots organizations and base-building organizations. Its overriding concern is not necessarily to win a case, but to meet the goals of partners. It employs movement lawyering and participatory litigation, which means that demands are generally set by its partners, with significant input from the Just Futures Law team. Movement lawyering requires lawyers to take the lead from directly impacted people, and sometimes this requires demystifying and explaining the law first so that partners can make the necessary tactical and strategic decisions about their campaigns and priorities. Making the law accessible is an important aspect of this work so that all parties can participate in the discussion to determine the best approach.

However, whether doing litigation or policy advocacy, Just Futures Law always approaches the work with a rubric which includes:

How does this further or complement its mission?

How does this support, amplify, or accelerate its partner’s goals?

What is the state of sustained capacity within this issue?

Are there people already working on this?

How does this fit into its existing work and docket?

How does it improve the rights of impacted communities?

How will it build power?

What are the risks to the grassroots partner and what is needed to support them?

The core of any work is relationship, trust-building, and transparency. Because many organizers have had poor experiences with lawyers, Just Futures Law undertakes a lot of relationship-building. The process usually starts with small tasks to get a feel for how they work and co-design, before building together. Lawyers must have the ability to interface with community organizers and invest in building relationships to have honest conversations as false humility is bad. Just Futures Law also builds relationships with other lawyers, including corporate lawyers when appropriate, to build out other expertise, but it does the bulk of the legal work with its partner organizations.

Just Futures Law emphasizes the importance of centering the voices of directly impacted people and partners, which leads to decentering courts so that partners feel like their voices are heard. For example, in one of its settlement mediations and negotiations involving First Amendment issues, the plaintiffs were in the room leading discussions and asking questions of government actors. Although litigation documents are often subject to protective orders, the legal team has made it a priority to find out from partners what documents they want to share with the world, to try to get them de-designated from the court because information is power.

Just Futures Law acknowledges that litigation is a tactic, not an end result or goal in itself and is often more concerned about wins outside of court. The toolbox for effecting change involves organizing, rapid response, policy advocacy, and story-telling; litigation just builds people power when it is carried out in tandem with these tools. To illustrate, Just Futures Law filed a lawsuit with OCAD, Mijente, and individuals as plaintiffs against LexisNexis, one of the world’s biggest aggregators of personal and commercial data. The narrative in the complaint details how LexisNexis’ contract with ICE allows it to access vast databases of personal information to use for immigration enforcement. Filing such litigation supported the legislative campaign of the plaintiff groups who have been organizing to get a local law passed to cut off such data-sharing. And if such a lawsuit is lost, then it creates an opportunity for partners to go to the legislature and demand for passage of laws at the state level.

Local lawsuits also get press attention, and Just Futures Law’s retainers say that its partners are lead on press and advocacy. This is because Just Futures Law believes the partners are the face of the case. To provide media support to the plaintiffs, Just Futures Law creates talking points, prepares mock interviews, and advises a list of “do’s and don’ts.”