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Landlords and Tenants Challenging Illinois City’s Unconstitutional Home Inspections Score Major Win

Zion's ordinance threatens ruinous fines unless landlords force warrantless searches on unwilling tenants

Landlords and Tenants Challenging Illinois City’s Unconstitutional Home Inspections Score Major Win

Zion, Ill.—Yesterday evening, the United States District Court for the Northern District of Illinois issued an opinion denying a motion from Zion, Illinois, to dismiss a lawsuit challenging its rental inspection ordinance. The inspection program allows the city to enter residents’ homes without cause or their consent—subjecting landlords to $750 daily fines for every day a tenant refuses an inspection. In September 2019, a Zion landlord and two of her tenants filed a lawsuit challenging the program. They are represented by the Institute for Justice (IJ), a national nonprofit public interest law firm that advocates for property rights.

Robert and Dorice Pierce, the tenant plaintiffs challenging Zion’s ordinance, have called their Zion apartment home since 2000. They sent a letter to the city objecting to an inspection and demanded a warrant. Zion ignored that request, choosing not to respect their personal privacy and to threaten their landlord, Josefina Lozano, with ruinous fines.

In Zion’s attempt to dismiss the lawsuit, it argued that tenants challenging the ordinance lack standing to sue, even though they had been threatened with warrantless searches, because the inspections have not been conducted yet. The city argued that because of this, the plaintiffs suffered no injury. This is a dangerous argument because it would force anyone challenging a violation of their rights to first suffer the violation before they can sue to stop it.

Judge John F. Kness shot down that argument, declaring that, “at any point, the City could choose to bypass the administrative warrant and move directly to levy compounding fees on Plaintiffs. With regard to standing, the administrative warrant option is a chimera that fails to eliminate Plaintiffs’ ‘substantial risk’ of injury.”

Landlord plaintiff Josefina Lozano celebrated the news, saying, “I was very pleased that the judge immediately went to the heart of the matter that Zion chooses to punish landlords with this ordinance.”

In 2015, when the city passed its rental inspection ordinance, the mayor at that time blamed the city’s poor financial health on an “overabundance of non-owner-occupied rental property.” Renters, he asserted, “often do not take care of their property like homeowners do, so this ordinance targets rentals only.” But individuals’ constitutional right to privacy in their home does not depend on government preferences for homeowners over renters. All persons enjoy that right equally.

“Your home is your castle, and if the government wants to look through it, it must obtain a warrant,” said IJ Attorney Rob Peccola. “We are thrilled that the court saw through Zion’s attempt to get rid of this lawsuit.”

Now the lawsuit will move on to discovery, and the tenants will seek a judgment from the court declaring Zion’s inspection program unconstitutional.

Six South Side Businesses Selected for Finals in Pitch Showcase

Six South Side businesses will compete October 21 in the finals of the eighth annual South Side Pitch. As it did last year, the competition is highlighting existing businesses that are taking on the challenges of 2021 in new and unique ways. This year contestants will give their pitches to the judges at the University of Chicago’s Polsky Center with audience members able to tune in live online and vote for their favorite. The six finalists below will compete to win several prizes, including a total of $20,000 in cash prizes.

  • Blossom Girls Network – an intimate and fun learning package that helps girls and tweens understand the changes in their bodies during puberty.
  • D. Jones Construction – a Black and woman-owned general contracting firm offering full construction services.
  • Last Lap Cornerstore – a Black and LatinX-owned running store on the South Side.
  • Piggyback Network – a youth transportation network inspired by the busy day-to-day activities of parents and their children.
  • Sista Afya Community Mental Wellness – a social enterprise that provides low-cost mental wellness services that center the experiences of Black women.
  • Trading Races – a card game that helps educate students about Black history.

“Small businesses are the heart of South Side communities and many are confronting the challenges of these unique times with boldness and creativity,” said ­­­­­­­­­­­­­Beth Kregor, the director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago. “South Side Pitch, now in its eighth year, is again eager to spotlight the entrepreneurs and small business owners working to build up their communities. As we do every year, we have a great group of finalists and can’t wait to hear their pitches.”

South Side Pitch allows incredible entrepreneurs to share their success stories and the impacts their businesses have in a “Shark Tank”-style contest. Prior winners have used their prizes to expand their businesses and create new jobs. Last year’s first-place winner, The Black Mall, used its prize money to support their efforts connecting Black-owned businesses. Since then, they’ve partnered with over 250 businesses to redirect and recycle over $800,000 towards Black-owned businesses.

South Side Pitch is hosted by the Institute for Justice Clinic on Entrepreneurship. The contest is sponsored by the Polsky Center for Entrepreneurship and Innovation and the University of Chicago Office of Civic Engagement. To learn more, visit www.southsidepitch.com. RSVP here.

The Institute for Justice Clinic on Entrepreneurship provides free legal assistance, access to resources and advocacy for low-income Chicago entrepreneurs. To learn more about the IJ Clinic, visit www.ij.org/clinic.

Wilmington Residents File Lawsuit Challenging City’s Unconstitutional Impound Racket

Wilmington, Del.—Wilmington contracts out its municipal impound system to private towing companies and funds the whole system by letting these companies wrongfully take and keep people’s cars. The city pays these companies nothing for their services, but there’s no such thing as a free lunch. The price of Wilmington’s “cost-free” impound services falls squarely on vehicle owners in Wilmington, who are at risk of losing their cars to an impound system woefully deficient of due process that profits off scrapping the cars they tow. Two victims of Wilmington’s tow-and-impound racket, Ameera Shaheed and Earl Dickerson, represented by the Institute for Justice (IJ), today filed a lawsuit seeking to bring an end to Wilmington’s unconstitutional impound system.

The lawsuit challenges Wilmington’s impound system in several ways: First, the lawsuit challenges the city’s program on the grounds that the city and its contractors take cars that are worth more than the amount of debt at issue, but then fail to return any surplus value to the owner (or even to credit the value of the car toward the ticket debt). In other words, the city can’t keep a $4,000 car over a $400 debt. Next, the lawsuit challenges the lack of procedural protections provided by the city’s program. The city violates the Fourth Amendment by seizing cars without a warrant and the city violates due process by failing to provide any pre- or post-seizure hearing. Finally, the lawsuit challenges the loss of a car as an excessive fine, as keeping someone’s car over an alleged parking violation is grossly disproportionate.

“The Constitution requires that any penalty imposed by the government be proportional to the crime. The loss of one’s car for ticket debt is unconstitutional,” said IJ Attorney Will Aronin. “People depend on their cars to work, to visit family, and for all parts of their lives. Nobody should lose their car just because they can’t afford to pay a parking ticket.”

Ameera Shaheed’s ordeal in Wilmington’s outsourced impound system should trouble anybody who drives or will drive through Wilmington. The city ticketed her legally parked car six times in nine days. While her appeal of the wrongly-issued tickets was pending, the city towed her car and demanded payment in full. When Ameera, a disabled grandmother of three, could not afford to pay $320 in tickets within 30 days, First State Towing scrapped her car. Though Ameera’s lost car was worth over $4,000, Wilmington still demands payment and has actually increased what she owes with added penalties to $580.

“When they took my vehicle, it hindered me from being able to get around. I have a bad back. I can’t do a lot of walking,” Ameera said. “I needed that vehicle. It was my pride and joy.”

Unfortunately, Ameera is not the only one to wrongly lose their car to Wilmington’s impound system. Earl Dickerson, a retired Wilmington grandfather, could not afford to drive much during the pandemic and left his car legally parked on his street. Wilmington ticketed his car and demanded he move it within seven days. Earl, dealing with a death in the family, missed the deadline and his car was towed. He paid the $60 ticket he was issued in full.

That should have been the end of Earl’s involvement in Wilmington’s impound system, but the towing company then demanded an additional $910 in “storage fees” before releasing his car. Earl could not afford to pay the ransom, so the towing company scrapped his car and kept the full value for themselves.

“It was my only means of transportation,” Earl said. “And without that, I felt almost helpless.”

“Wilmington is taking cars without any kind of procedural protections, holding them for ransom, and then refusing even to credit the value of the car toward the supposed ticket debt,” said IJ Senior Attorney Rob Johnson. “No private debt collector could ever get away with that. The city doesn’t get extra leeway to take private property just because it’s the government. To the contrary, we should be holding the government to a higher standard.”

The Institute for Justice, which litigates property rights cases across the country, regularly challenges unconstitutional fines and fees. In 2019, IJ won a victory before the United States Supreme Court, in which the Court held that the Eighth Amendment’s prohibition of excessive fines applies to state governments, not just the federal government.

Broad Coalition Urges Supreme Court to Reverse Appeals Court Ruling That Makes Texas, Louisiana and Mississippi “Constitution-free Zone” for Federal Officers

ARLINGTON, Va.—What does it take to hold federal police accountable for using excessive force? That question is once again being raised with cases being appealed to the U.S. Supreme Court. And it’s coming to the Justices in the form of a petition from Kevin Byrd, a Texas mechanic who was almost shot to death by a federal officer in a dispute over a purely personal matter.

Kevin is not fighting alone. The Institute for Justice (IJ) represents him in his U.S. Supreme Court appeal. And three groups of exceptional scholars and cross-philosophical public policy organizations are supporting him with friend-of-the-court briefs in which they urge the Justices to take up Kevin’s case.

This legal fight started for Kevin on February 2, 2019, when he was at a restaurant asking questions about a drunk driving car crash that injured the mother of Kevin’s child. There, Kevin encountered the father of the driver involved in the crash—Department of Homeland Security Agent Ray Lamb. Displeased that Kevin was asking questions that could get his son into trouble, Agent Lamb resolved to stop Kevin. With his gun drawn, Lamb jumped out of a truck, yelling that he would “put a bullet through” Kevin’s “f—ing skull” and “blow his head off.” At the time, Kevin was in his car, getting ready to leave the restaurant. The agent tried to enter Kevin’s car by hitting the driver’s side window with his gun. Failing to break through, Lamb tried to shoot Kevin, but his gun malfunctioned.

Terrified for his life, Kevin called 911. When local police arrived, Lamb showed them his federal badge, prompting the officers to detain Kevin in the back of a police car. Thankfully, the entire encounter was recorded on video. After reviewing it, the officers let Kevin go and arrested Lamb for aggravated assault and misdemeanor criminal mischief.

Because nothing came of the charges, Kevin sought accountability in the only legal forum available to him—a federal district court. He initially succeeded, because the district court held that even qualified immunity—an obstacle that already makes it extremely difficult for victims of constitutional abuse to seek accountability—does not protect an officer who commits such a clear constitutional violation. But when Lamb appealed to the 5th U.S. Circuit Court of Appeals, his victory turned into a defeat because, according to that court, federal officers are entitled to absolute (not qualified) immunity, meaning they cannot be sued at all simply by virtue of being employed by the federal government. This holding prompted one of the judges sitting on the panel to lament that in Texas, Louisiana and Mississippi federal officers now operate in a “Constitution-free zone.”

“Had Agent Lamb worked for a state or local government, a case against him would have proceeded to trial,” said Patrick Jaicomo, an attorney for the Institute for Justice, which represents Kevin in his appeal to the U.S. Supreme Court. “But because he happens to be a federal cop, he gets away Scot free.

“That’s not only wrong, it is also inconsistent with our history,” added IJ Attorney Anya Bidwell, co-counsel in the case. “Remember that the Constitution first and foremost limited the power of the federal government and only applied to the states after the Civil War.”

On August 6, Kevin and the Institute for Justice filed a petition for certiorari in the U.S. Supreme Court, asking the Justices to take on the case and reverse the 5th Circuit’s decision.

They are now joined by a diverse group of highly respected law professors and public policy organizations that filed briefs in support of the Court taking up Kevin’s case. These include briefs by:

  • Professor Peter Schuck, the Simeon E. Baldwin Professor of Law Emeritus at Yale University. An academic legend in the field of constitutional accountability, Prof. Schuck wrote a treatise—Suing Government: Citizen Remedies for Official Wrongs (1983)—which became the foundational text on the subject and inspired many great legal minds to get involved in the field. In his brief, Professor Schuck argues that the 5th Circuit’s decision denying Kevin his day in court “departs radically from this Court’s established framework for evaluating damages claims against federal officials for constitutional torts, creating a split among the circuits.” Supreme Court review, therefore, is not only warranted but badly needed.
  • Professor Seth Stoughton, a former police officer who, among other appointments, teaches at the University of South Carolina School of Law. Professor Stoughton is a well-respected authority on the use of force issues that plague our nation today. According to his brief, the 5th Circuit is home to one of the largest federal law enforcement forces in the country. There are more than 18,000 federal law enforcement officers in Texas alone, with the 5th Circuit overall hosting more than 20,500 federal police. This means that if the 5th Circuit’s decision is allowed to stand, a constitutional remedy will “effectively be abolished exactly where it is most crucial.”
  • The ACLU, Cato Institute, DKT Liberty Project, Goldwater Institute, Law Enforcement Action Partnership and New Civil Liberties Alliance filed a cross-philosophical brief arguing that the nation needs a reevaluation of the excessive force jurisprudence and also needs to get back to the original principles of this country’s founding, specifically the ideal that where there is a right, there must be a remedy. The 5th Circuit’s decision cannot be allowed to stand lest this foundational principle be denied to those who most need it.

“We are grateful for the support of esteemed Professors Schuck and Stoughton, and of the amazing cross-philosophical group of amici,” said Scott Bullock, IJ president and general counsel. “In this polarized moment in our nation’s history, it is inspiring to have such a broad coalition, especially at this early stage of Supreme Court review. We all agree that the Constitution is not an empty promise but provides vitally important constraints on government power. We ask the Supreme Court to grant review and make this absolutely clear to federal courts nationwide.”

This case is litigated as part of the Institute for Justice’s Project on Immunity and Accountability, which seeks to hold government officials more accountable when they violate individual rights. As part of the Project, IJ will continue to fight against the many special protections that shield government officials from accountability.

For more information on this and IJ’s other cases dealing with holding federal officials accountable when they violate someone’s constitutional rights, visit:  https://ij.org/case/federal-police-immunity-cert-petitions/.

Friends of the Court Submit U.S. Supreme Court Briefs to Support Religious Options in School Choice Programs

ARLINGTON, Va.—More than 30 amicus (or “friend-of-the-court”) briefs have been filed in Carson v. Makin, calling for greater educational choice for parents and their children. Carson, which is being litigated by the Institute for Justice (IJ), is expected to set a landmark precedent when it comes to education reform. In the case, the U.S. Supreme Court will decide whether a state may exclude families from an otherwise generally available student-aid program simply because they send their children to schools that provide religious instruction. The Court is expected to hear argument in the case in late 2021.

In an earlier IJ case, 2020’s Espinoza v. Montana Department of Revenue, the Supreme Court held that states may not bar families from choosing schools in student-aid programs simply because of the school’s religious identity, or status. Yet, in Carson, the 1st U.S. Circuit Court of Appeals upheld Maine’s exclusion of religious schools from a state tuition assistance program for high school students. The 1st Circuit acknowledged that Espinoza forbids a state from excluding schools because of their religious status, but it nevertheless held that the Constitution permits a state to exclude schools based on the religious use to which a student’s aid might be put there—namely, religious instruction. In other words, the 1st Circuit held that although states may not exclude schools because they are religious, they are perfectly free to exclude schools because they do religious things.

The U.S. Supreme Court agreed to hear an appeal of the 1st Circuit’s decision, and on September 3, 2021, IJ filed its opening brief in the Supreme Court, demonstrating the constitutional irrelevance of the “use/status distinction” drawn by the 1st Circuit and arguing that Maine’s religious exclusion is just as unconstitutional as the exclusion the Supreme Court held unconstitutional in Espinoza. Late last week, some 33 amicus curiae, or friend-of-the-court, briefs were filed supporting IJ’s position. The briefs come from groups across the ideological, political and religious spectrums, demonstrating the depth of support for IJ’s position on educational choice programs.

Among the amici are:

Coalition of 18 States: Eighteen states, most of which have educational choice programs of their own, argue that “a State need not discriminate on the basis of religion to serve its undoubtedly compelling interest in educating children. Just the opposite, openness to partnering with religious schools furthers the States’ goals by providing an array of educational choices.” They add that “[f]ully including religious schools also protects the constitutional rights of a State’s citizens.”

Members of the United States Senate: Eleven members of the United States Senate note that throughout history, Congress has partnered with religious organizations to provide vital learning opportunities to American children. These efforts date back to the Northwest Ordinance of 1787; continued through the 19th century, when Congress financially supported religious education for Native Americans and freed slaves; and continue today, with the D.C. Opportunity Scholarship Program for low-income families in the District of Columbia.

Southern Christian Leadership Conference–Memphis Chapter: The Memphis Chapter of the Southern Christian Leadership Conference, founded by Dr. Martin Luther King, Jr. and other civil rights leaders in 1957, as well as a group of African-American community leaders from Memphis, survey the history of the 14th Amendment, which demonstrates “that the Equal Protection Clause is rooted in notions of religious as well as racial equality.” They note that “the federal government actively and directly funded religious schools alongside secular schools at the time the Fourteenth Amendment was passed and later ratified.” In fact, “[i]n 1866, the same Congress that passed the Fourteenth Amendment also instructed the newly created Freedmen’s Bureau to provide suitable education to newly freed slaves through the funding of private benevolent associations,” most of which were northern missionary societies.

Professor Michael McConnell of Stanford University:  Professor Michael McConnell, formerly a federal judge on the 10th U.S. Circuit Court of Appeals, is widely recognized as a leading authority on the Religion Clauses of the U.S. Constitution. His brief undertakes a comprehensive study of the history of the Free Exercise Clause, which makes clear that the clause, as originally understood, protects not only religious belief or status, but also religious conduct. Thus, he argues, there is no basis for the “use/status distinction” that the 1st Circuit relied on to uphold Maine’s sectarian exclusion. Professor McConnell’s brief also demonstrates how Maine’s exclusion requires intrusive religious inquiries by the state that result in inter-religious discrimination in violation of the Establishment Clause.

Defense of Freedom Institute for Policy Studies: Authored by David Boies, who litigated the successful constitutional challenge to California’s Proposition 8 banning same-sex marriage, this brief argues that the “semantic distinction between status and use makes no constitutional difference.” The brief notes that the U.S. Supreme Court has rejected any comparable distinction in other contexts—for example, laws that discriminate based on sexual orientation, race, or sex. The brief urges the Court to reject the distinction when it comes to religion, as well, explaining that “[f]or an antidiscrimination protection to have any real force, it must reject such meaningless distinctions.”

Innovative Private Schools:  Build UP (which operates a workforce development model to provide low-income youth in Alabama and Ohio with career-ready skills through paid apprenticeships), Kuumba Preparatory School for the Arts (an African-centered private school located in southeast Washington, D.C.), and Blaze Kids Academy (which is in the process of designing and building a faith-based all-year-around boarding facility for students from rural parts of the United States) were “founded on the principle that different students learn differently, and that it is the responsibility of educators to embrace students’ unique capacities as a tool for learning, not an obstacle to it.” The 1st Circuit’s decision, their brief argues, has “the perverse effect of blocking funding from those students who are most likely to benefit from innovative schools, and it will chill creativity and experimentation by schools that fear such experimentation may result in their students losing access to critical tuition assistance.”

Partnership for Inner-City Education, Council of Islamic Schools in North America, and National Council of Young Israel: This interfaith brief is on behalf of organizations that operate, represent, and support elementary and secondary schools in the Catholic, Islamic and Jewish traditions. “Central to these schools’ religious and educational missions,” the brief stresses, “is the integration of faith throughout all aspects of their educational programs, making the religious status/religious use distinction employed by the First Circuit below both unworkable and discriminatory.”

Institute for Justice Senior Attorney Michael Bindas, who will argue Carson before the Supreme Court, said, “We are grateful for the overwhelming support we’ve received from so many states, public servants, churches, civil rights organizations, schools, think tanks, and religious organizations of all denominations and faiths. As their briefs make clear, Maine’s exclusion of ‘sectarian’ options from its tuition assistance program is discriminatory, unconstitutional and ultimately harmful to the very schoolchildren that Maine purports to help. We are confident the U.S. Supreme Court will see it the same way.”

Private Investigator Asks U.S. Supreme Court to Hear Important First Amendment Case

Arlington, Va.—Earlier this month, Joshua Gray, a private investigator from Massachusetts, filed a petition for certiorari with the U.S. Supreme Court asking the Court to reverse a decision by the Maine Department of Public Safety denying him a license as a professional investigator in Maine. The Department based its denial on the fact that it disapproved of Gray’s criticism of the Department’s own employees’ conduct in a police shooting that left two dead. The Institute for Justice (IJ) filed the petition on Gray’s behalf.

IJ Senior Attorney and lead counsel Paul Sherman said, “When the government retaliates against people because of their speech, it violates the First Amendment. That’s true whether the government is imposing a fine, withholding a parade permit, or denying an occupational license.”

Gray’s problems with the Department began after he criticized the conduct of Maine police in the fatal shooting of 25-year-old Kadhar Bailey and 18-year-old Amber Fagre in February of 2017. Believing that the shooting could have been avoided had it not been for police recklessness, Gray expressed his criticisms on his Facebook page. But when Gray later applied for a license as a professional investigator in Maine, the Department denied Gray’s application on the ground that his online criticism contained factual errors, and therefore he lacked the “good moral character” required for licensure.

Gray said, “Police shootings are one of the most widely debated political issues today. If I had praised the Maine police for the shooting of Kadhar Bailey and Amber Fagre, they would have had no excuse for denying me a professional investigator’s license. They singled me out because I criticized them. That’s censorship, and it violates my First Amendment rights.”

Some of Gray’s statements were mistaken; for example, he initially misidentified the officer who shot Amber Fagre. When an attorney general’s investigation revealed that this officer had in fact shot Bailey but not Fagre, Gray updated his Facebook page with a correction. Other supposed “factual” errors included Gray’s speculation about whether one of the off-duty officers involved had been drinking before the shooting, as well as his opinion that the shooting should be considered murder. Based on these alleged errors—and nothing else—the Maine Supreme Judicial Court in April of this year affirmed the Department’s denial of Gray’s application.

IJ Attorney John Wrench said, “If a police officer had sued Gray for defamation, he would have received greater First Amendment protection. If Gray had been fired from government employment because of his Facebook posts, he would have received greater First Amendment protection. But because Gray was instead denied the right to work in the occupation of his choice, the Maine Supreme Judicial Court deferred to the Department of Public Safety’s decision to withhold a license from one of its vocal critics. That’s unconstitutional.”

Gray’s petition comes just three years after the Supreme Court’s groundbreaking ruling in National Institute of Family & Life Advocates v. Becerra (NIFLA), in which the Court rejected the idea that “professional speech” was entitled to reduced protection. In that case, the Court held that government regulation of speech within occupations is subject to the same heightened First Amendment rules as other content-based burdens on speech.

IJ Senior Attorney Robert Johnson said, “Before NIFLA, lower courts for decades had treated occupational licensing boards as though the First Amendment simply didn’t apply to them. The Supreme Court rightly rejected that view. The decision of the Maine Supreme Judicial Court conflicts directly with that ruling. It is vital that the Supreme Court take up this case and reaffirm that there is no occupational licensing exception to the First Amendment.”

Gray’s case could have profound implications for other licensed occupations. There are today hundreds of licensed occupations that vary widely by state, most of which have “good moral character” requirements. At the same time, the growth of social media has made it easier than ever for licensing boards to deny licenses based on disagreement with an applicant’s political views.

Gray said, “I’m not just fighting for my rights; I’m fighting for the rights of all Americans who want to debate issues of national importance. If the Maine Department of Public Safety can deny me a license because of a handful of mistakes in Facebook posts discussing an issue of national importance, no social-media user’s right to an occupational license is safe.”

The Institute for Justice is the nation’s leading legal advocate defending occupational speech. IJ has successfully challenged restrictions on occupational speech throughout the country, protecting the speech of engineers, tour guides, health coaches, psychologists, teachers, and others.

New Orleans-Area Residents Vow To Appeal Dismissal Of Lawsuit Challenging Due Process Violations in Criminal Proceedings

NEW ORLEANS—Today, a federal district court granted an ankle monitoring company’s motion to dismiss a class action lawsuit challenging the company’s violation of New Orleans criminal defendants’ right to neutral adjudication in conjunction with former Judge Paul A. Bonin. The plaintiffs, Marshall Sookram and Hakeem Meade, will appeal the decision.

Represented by the Institute for Justice (IJ), Sookram and Meade—former Orleans Parish Criminal District Court defendants—sued ETOH Monitoring, LLC (ETOH) and Judge Bonin last May for violating the constitutional rights of dozens of criminal defendants. Marshall, Hakeem and others were ordered to pay ETOH for expensive pretrial ankle monitoring while unaware that Judge Bonin and ETOH had significant personal, financial and political relationships. ETOH’s two executives together donated and loaned over $9,600 to Judge Bonin’s judicial election campaigns. Worse yet, one of those executives was Judge Bonin’s former longtime law partner.

“The type of relationship and taint of the judicial process that we challenged cannot be allowed to stand,” said IJ Senior Attorney William Maurer. “This decision permits the machineries of the criminal justice system to be tied to the financial interests of for-profit, private companies. We will be appealing immediately.”

The federal court’s opinion claims that the relationship between Judge Bonin (who stepped down from the state court after this class action was filed) and ETOH does not give rise to a profit incentive claim because “Plaintiffs’ allegations depend on the specific relationship between former Judge Bonin and ETOH and therefore fail to state an institutional incentives claim.” But that immunizes from judicial scrutiny any claim that a particular judge’s courtroom is operating in a manner that prioritizes profit over neutral adjudication as long as no other judges on the court have the same ties to the particular company at issue.

“The federal court just held that a private company’s profit incentive can influence the operation of a criminal court as long as the arrangement might be unique to one judge. That cannot be the law,” said IJ Attorney Jaba Tsitsuashvili.

The plaintiffs dismissed Judge Bonin from the lawsuit late last year following his announcement that he would be stepping down after his term ended in December 2020. Judge Bonin’s decision to retire did not result in ETOH giving back the money it collected in tainted proceedings, however. It also was not a recognition of the harm to the rights of defendants appearing in Judge Bonin’s courtroom. Nor did it protect future litigants from being deprived of their rights in cases involving similar ties between judges and private companies. IJ and the plaintiffs will therefore continue to pursue this lawsuit and ensure that criminal defendants are free from the appearance or actuality of decisions influenced by a judge’s ties to a private party.

IJ, Marshall and Hakeem will now appeal to the 5th U.S. Circuit Court of Appeals and seek to vindicate the constitutional cornerstone of adjudication untainted by the profit incentives of private companies operating in the legal system.

Family Farm Facing Ruinous Fines for Paperwork Mistake Sues Agency that Acts as Prosecutor, Judge and Jury

CAMDEN, N.J.—A new lawsuit launched by a fourth-generation family farm asks whether a single government agency can act as prosecutor, judge and jury when handing out potentially ruinous fines. Sun Valley Orchards, a produce farm in Swedesboro, N.J., is facing hundreds of thousands of dollars in penalties from the U.S. Department of Labor (DOL), mostly for a paperwork mistake. Now, the Institute for Justice (IJ) will represent owners Joe and Russell Marino in a suit that challenges the system DOL crafted to enforce the rules it writes.

“These penalties could destroy a fourth-generation family farm, and yet they’ve been imposed without the Marinos ever seeing a real federal judge,” said IJ Senior Attorney Rob Johnson. “The Constitution guarantees an independent judiciary, and that means employers like the Marinos are entitled to a real trial in a real court before the government can destroy their business.”

In 2015, Sun Valley Orchards struggled to find the workers it would need to harvest the produce growing in its southern New Jersey fields. For the first time ever, they decided to participate in the federal government program that would let them hire seasonal legal immigrants carrying H-2A visas. Because Joe and Russell knew that the program was complex, they hired a consultant to help them work through the paperwork.

After a visit to the farm in 2015, an inspector told the Marinos there were no problems. However, just months later, DOL officials returned with a letter saying the farm was being assessed $550,000 in penalties. The majority of the amount was because their paperwork did not use the right language to describe the otherwise legal meal plan the farm offered workers. In fact, the farm continued to offer the same plan in later years without a DOL complaint. Other penalties related to a dispute over whether some workers had left on their own or been fired.

“It was a shock to be first told everything was fine and then months later handed a devastating fine,” said Joe Marino. “From the moment we were handed the letter stating the penalties, the process felt rigged against us. All we want is an opportunity for a fair hearing to take a hard look at the facts in our case and whether the punishment fits the offense. It’s what every American should get when their livelihood is on the line.”

For almost five years, the Marinos fought the fines within DOL’s administrative law system. To police the H-2A visa program, DOL created the rules and the penalties for violation. The agency employs the investigators, the administrative law judges that hear cases, and the board that considers appeals. It is a system built without clear legislative direction and that is not overseen by a neutral member of the judiciary. The Marinos’ suit is aimed not only at stopping their fines, but also creating a fairer system overseen by federal courts, not bureaucrats.

The lawsuit also asks courts to consider whether six-figure fines for a paperwork mistake violate the Eighth Amendment’s excessive fines clause. While the Supreme Court (in a case litigated by IJ) recently ruled that the excessive fines clause applies to all levels of government in the U.S., there is not a clear legal standard about when a fine becomes excessive. IJ is currently representing clients fighting fines over tall grass, parking in their own driveway and an unpermitted pigeon coop.

“Hundreds of thousands of dollars in fines for a first-time paperwork violation is totally out of proportion,” said IJ Attorney Renée Flaherty. “Fortunately, the Constitution guarantees that a punishment must fit the offense.”

The Institute for Justice is joined in this case by local counsel Scott Wilhelm, of Winegar, Wilhelm, Glynn & Roemersma, P.C

Tarpon Springs Food Truck Owners Vow to Fight On After Court Setback

CLEARWATER, Fla.—Today, the owners of a Florida food truck vowed to continue their legal battle against Tarpon Springs after a Florida court decided that they could not sue the city over an ordinance that requires independently operated food trucks to use someone else’s name in order to operate downtown. Elijah and Ashley Durham opened SOL Burger last year when Elijah lost his job as a chef during the pandemic. Soon after opening in their town, Tarpon Springs passed an ordinance that banned trucks from downtown unless they were owned by a brick-and-mortar restaurant. In May, Elijah and Ashley, represented by the Institute for Justice (IJ), sued the city in Florida court.

Following Elijah and Ashley’s widely covered lawsuit, Tarpon Springs changed its tune and said that independent food trucks could operate in the city but only if they “temporarily re-branded” by using the name of the business at which they were operating. Forcing an otherwise legal business to use someone else’s name to operate is a blatant free-speech violation. Doing so also robs Elijah and Ashley of the opportunity to build their brand, which is critical to success in the food service industry. Unfortunately, the trial court’s decision ruled that Elijah and Ashley cannot modify their suit to bring the free-speech claim until they have actually suffered the harm of using someone else’s name.

“Tarpon Springs should not be able to escape the scrutiny of the courts by substituting one constitutional violation for another,” said IJ Attorney Ben Field. “SOL Burger should be able to operate on the private property they are invited onto and operate under their own name. We hope that the court of appeal will take the free-speech violation seriously.”

“It is textbook constitutional law that someone whose speech has been chilled can bring a free-speech claim,” said Justin Pearson, IJ’s Florida Office Managing Attorney. “Unfortunately, the trial court disagreed. We look forward to the appeal.”

“It is frustrating to have Tarpon Springs constantly changing the rules and finding new ways to make it hard on our small business,” said Elijah. “We just want to focus on making great burgers and building our brand. Hopefully our appeal will get serious consideration and we’ll be able to operate proudly in our town under our own name.”

The Institute for Justice has successfully challenged restrictions on the economic liberty of food trucks to operate across the nation through its National Street Vending Initiative. IJ has successfully challenged unconstitutional food-truck restrictions in Fort Pierce, Florida; Carolina Beach, North Carolina; South Padre Island, Texas; and other cities across the U.S.

Highway Robbery in Reno: Nevada Cops Use Civil Forfeiture To Steal a Veteran’s Life Savings

Last February, while driving down a Nevada highway on the way to visit his daughters, Stephen Lara was robbed in plain sight. But his assailants were not ordinary criminals—they were police officers from Nevada Highway Patrol.

Using a controversial legal tactic called civil forfeiture, the officers fabricated a reason to stop Lara, detained him for more than an hour, and eventually left with his entire life savings. The officers never alleged he’d done anything illegal—let alone, charged him with any crime—and yet they left him penniless, standing on the side of the road.

Stephen is just one of the latest victims of policing for profit—the unconstitutional practice of using civil forfeiture to seize and keep innocent Americans’ cash, cars, and other property. Under civil forfeiture, police and prosecutors can take ordinary Americans’ property without ever charging them with a crime. Civil forfeiture flips “innocent until proven guilty” on its head, and forces property owners to hire an attorney and prove their innocence in court to get their property back. Worse still, the federal government pays state officers to abuse civil forfeiture through a program called “equitable sharing” in which state officers can seize money, hand it over to the federal government to do all the work forfeiting it, and then get most of the forfeited money returned as a kickback.

Stephen, who is a decorated Marine Corps veteran who served in both Afghanistan and Iraq, is no stranger to a fight, and so today he has partnered with the Institute for Justice to file a lawsuit against the Nevada Highway Patrol to put meaningful constitutional constraints on civil forfeiture and to end the abuse of “equitable sharing” once and for all.

“Carrying around cash is not a crime,” said Wesley Hottot, a senior attorney at the Institute for Justice, which represents Stephen. “Stephen did nothing wrong. He isn’t charged with any crime and the government isn’t even willing to defend this seizure in court. Innocent people shouldn’t lose their property like this. It should be clear that civil forfeiture is inherently abusive, and with this lawsuit, we hope to put an end to legally-condoned highway robberies.”

Stephen’s ordeal started on a stretch of highway in northern Nevada. Stephen was driving from Texas to a small town near Reno to visit his two daughters. Body- and dash-cam video of the incident shows a Nevada Highway Patrol officer pulling up behind Stephen and following him for a time. When Stephen changes lanes behind a tanker truck, the officer says, “there you go,” and proceeds to pull him over. The officer says he’s pulling Stephen over to “make sure everything is okay.” The stop was a pretext to ask Stephen about his trip, and “a bunch of silly questions,” like “[are there] any large amounts of United States currency in the vehicle.”

Since his days in the Marines, Stephen has kept his savings in cash. He had saved enough money to achieve one of his most important goals: to buy a home for himself and his daughters. So when the officer asked him about carrying cash, Stephen said “yes.” When the officer asked to search his car, he said “yes.” And when the officer asked about the source of the cash, Stephen showed him over two years’ worth of bank receipts. Stephen did everything he was told, and answered every question he was asked.

More officers arrived and searched Stephen’s car. They found no drugs, no guns, no contraband, no nothing. Just the money, exactly where Stephen told them it would be. A sergeant arrived and ordered the officers to use a police dog to sniff the money. The dog allegedly alerted to the money—something that is common for all U.S. currency—but there was no other evidence whatsoever of any wrongdoing. The officer who initiated the stop thought Stephen was innocent and should be let go, but his sergeant overrode him and ordered the officers to seize Stephen’s life savings: $86,900.

“It never occurred to me just how vast and immoral civil forfeiture was until I was robbed of my hard-earned money on the side of the road by a bunch of rogue pirates with badges and guns,” said Lara. “Police officers have a duty to protect and serve the public, not rob them of their life savings. I fought in Afghanistan and Iraq. I’ve seen abuses by government firsthand. I never thought I’d see it in my own country.”

The officers knew they had no evidence of any crime, but they took Stephen’s money anyway. Using a process called an “adoption,” the officers called a U.S. Drug Enforcement Administration (DEA) agent to see if he could process the seizure. By processing the seizure through the DEA, the state highway patrol could receive an effortless 80 percent kickback through the federal government’s “equitable sharing” program.

In 2015, then-Attorney General Eric Holder restricted when federal agencies could adopt seizures from state and local police. Following that, the number of forfeitures adopted by the federal government plummeted. But just two years later, in 2017, then-Attorney General Jeff Sessions reinstated the ability to adopt forfeitures. Since then, the number of forfeitures adopted from state and local police has increased more than six-fold from its low.

Months have passed and the DEA has missed the deadlines set by federal law for it to either return Stephen’s money or file a case explaining what the government believes Stephen did wrong. The DEA has done neither. Despite that, the DEA continues to hold on to Stephen’s money.

“Civil forfeiture creates a perverse profit incentive that turns ordinary law-abiding cops into legally-sanctioned robbers,” said IJ Attorney Ben Field. “The right thing to do now—and indeed, the only legal thing to do—is for the government to return Stephen’s money immediately, with interest, and with no strings attached.”

Stephen is only one of thousands of Americans whose property has been seized using civil forfeiture. In 2018 alone, 42 states, the District of Columbia, and the U.S. Departments of Justice and the Treasury forfeited over $3 billion, according to IJ’s landmark report, Policing for Profit. And each year, the federal government pays out hundreds of millions of dollars to state and local agencies participating in the equitable sharing program—$333.8 million in 2019 alone and more than $8.8 billion in total from 2000 to 2019.

Class Action Lawsuit Seeks to Dismantle Houston’s Illegal and Unconstitutional Forfeiture Machine

HOUSTON—Harris County police and prosecutors systematically abuse the constitutional rights of drivers, seizing cash and other property without probable cause, and quickly filing lawsuits to keep the seized cash in their own budgets using civil forfeiture. Today, the Institute for Justice (IJ)—a national nonprofit law firm—is fighting back with a class-action lawsuit challenging Harris County’s unconstitutional civil forfeiture program.

IJ represents Ameal Woods and Jordan Davis, a couple from Natchez, Mississippi, who lost their $42,300 life savings on the side of Interstate 10. Ameal was en route to purchase a tractor-trailer to expand his trucking business when Harris County deputies pulled him over for allegedly “following a tractor trailer too closely.” Once Ameal told them he was traveling with cash, they took it and sent him on his way without so much as a warning. Now the couple is teaming up with IJ to spearhead a class-action lawsuit that seeks to end forfeiture abuse in Texas’ largest county and the broader Texas practice of allowing law enforcement to police for profit by keeping cash they seize to pay their own salaries.

Harris County’s civil forfeiture case filings tend to follow a typical pattern of flouting probable cause. Ameal Woods and Jordan Davis are among the more than 100 people caught in Harris County’s forfeiture machine in forfeiture cases that rely on a single form affidavit. They contain identical form affidavits and stock allegations in case after case, each noting a K-9 alert took place at some point after the seizure, and are not signed by an officer at the scene of the seizure with actual knowledge. What’s more, Harris County seized Ameal and Jordan’s life savings despite not arresting anyone for any crime. Under Texas’ civil forfeiture law, to get their property back Ameal and Jordan must prove a negative—that their property is innocent—flipping the principle of innocent until proven guilty on its head.

“It’s two years later, and I still have the same reaction thinking about it. I just get depressed all over again,” Ameal said about forfeiture. “We hope we can get our savings back and make sure this doesn’t happen to anyone else.”

Carrying cash is not a crime. Not only was it legal for Ameal to drive with cash, he did so with the intention of fulfilling his American Dream: to expand his own business to provide for his and Jordan’s two daughters. On the morning of May 14, 2019, that dream was within reach when Ameal got into a rental car and began driving towards Houston. But that dream came crashing down when Ameal was pulled over in Harris County.

One of the first questions the officer asked was whether there was cash in the car. Ameal had nothing to hide and let the officer search the vehicle. Minutes later, the cash was seized, Ameal was let go, and soon Harris County prosecutors in its forfeiture unit were suing the cash in civil court to keep it permanently. Over the next two years Ameal and Jordan heard nothing from Harris County.

“The government cannot copy-and-paste its way to probable cause,” said IJ Managing Attorney Arif Panju. ” Probable cause means more than simply having a large sum in cash and an after-the-fact dog alert.”

Ameal and Jordan’s lawsuit asserts six categories of claims against Harris County’s forfeiture system. Currently, Texas has some of the worst civil forfeiture laws in the nation, earning a D+ in the Institute for Justice’s comprehensive compilation of civil forfeiture data, Policing for Profit III.

“Who could afford to have their life savings taken away for more than two years with no hearing and no opportunity to go before a judge?” said IJ Senior Attorney Wesley Hottot. “People in this country are innocent until proven guilty. But Texas’ law flips that principle on its head: Your property is presumed guilty and you must prove your own innocence.”

In response to lawsuits by IJ, federal judges in Albuquerque and Philadelphia have shut down those cities’ unconstitutional forfeiture programs. And in 2019, IJ secured a unanimous victory from the U.S. Supreme Court holding that the Excessive Fines Clause of the Eighth Amendment applies in civil forfeiture cases and in every state.

Governor Signs Bill Making It Easier for Illinoisans to Sell Their Homemade and Homegrown Foods

CHICAGO—Late Friday, Gov. J.B. Pritzker signed SB 2007, the Home-to-Market Act, legislation which will allow home bakers and farmers in Illinois to sell their foods more easily. The bill sweeps away a patchwork of regulations that made it difficult for food entrepreneurs to sell directly to their customers and that severely limited how much they could sell each month. The new law brings Illinois more into line with other states across the country, which in recent years have removed restrictions on homemade products, also known as cottage foods.

The Institute for Justice (IJ) Clinic on Entrepreneurship at the University of Chicago Law School helped organize home bakers and farmers in Chicago and across Illinois to support the legislation. The city of Chicago has been especially difficult for cottage food producers, limiting sales only to farmers’ markets, many of which were shutdown last year due to the pandemic.

“Home bakers and farmers in Illinois will now have the opportunity to support themselves with their home businesses,” said Beth Kregor, the director of the IJ Clinic. “We are glad to see Illinois recognize that cottage foods don’t pose a threat to health and safety and instead represent a real opportunity for entrepreneurs to step into the food industry. This new law will help many in our state improve their lives by sharing their delicious creations with their communities.”

The Home-to-Market Act will go into effect on January 1, 2022, and will free cottage food producers to:

  • Sell beyond farmers’ markets including through delivery, pick-up, online sales, fairs and other public events, and other direct-to-consumer sales avenues.
  • Sell their products across the state without a $1,000 monthly sales cap.
  • Use buttercream icing on cakes, cupcakes and other in-demand baked goods.

Karla Armour from La Matriz Bakery in Chicago is a home baker who struggled to afford access to a commercial kitchen. She said, “This is what a truly level playing field looks like. It’s about being able to work in a comfortable space and grow my business at a comfortable pace.  No more being shut out by exorbitant fees for licenses and kitchen rentals.”

Shelli Eng, owner of The Bread Lady, has long worked toward more freedom for cottage food producers in Whiteside County, northeast of the Quad Cities. She said, “The new cottage food bill is a game changer in Whiteside County and all across rural Illinois. For the cottage bakers here, fairness and opportunity will be restored. We fought long and hard. We stayed true to our mission. Now Illinoisans will be rewarded with wholesome, homemade food choices.”

The Institute for Justice, through its nationwide Food Freedom Initiative, seeks to reform and challenge laws that interfere with the ability of people to make, buy, sell, eat, grow or advertise different foods. In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women living in rural areas. Even a small amount of extra income from a cottage food business can be helpful to lower-income households struggling during the economic recovery from the COVID-19 pandemic.

Final Victory for Food Trucks in Fort Pierce: Judgment Proclaims City’s Former Anticompetitive Ordinance Unconstitutional

FORT PIERCE, Fla.—Late Friday afternoon, food truck entrepreneurs Benny Diaz and Brian Peffer achieved final victory in the lawsuit they filed in December 2018 alongside the Institute for Justice (IJ) that challenged Fort Pierce’s ban on food trucks operating within 500 feet of a restaurant. This consent final judgment entered by Judge Elizabeth Metzger will ensure that Fort Pierce cannot bring back its unconstitutional ordinance.

Fort Pierce’s proximity ban was one of the most stringent in the country, making it almost impossible to do business in the city. A Florida circuit court ruled in February 2019 that the ban likely violated the Florida Constitution and granted the plaintiffs’ motion for a preliminary injunction, allowing food truck vendors to operate in the city during the litigation. In response, Fort Pierce repealed the ban, but Benny and Brian would not drop their lawsuit until the city agreed never to bring back the ban. This judgment ensures that the food truck ban is gone for good.

“This final judgment is a victory for the Florida Constitution and the right to earn an honest living,” said IJ’s Florida Office Managing Attorney Justin Pearson. “The government is not allowed to pick winners and losers in the marketplace. That choice belongs to consumers.”

The law’s sole purpose was to protect existing restaurants from competition, a fact the city repeatedly mentioned while enacting the ban; in 2014, then-Commissioner Edward Becht said that the 500-foot ban exists because allowing food trucks to compete for business would, “hurt the brick-and-mortar businesses.”

But the Florida Constitution protects the right of individuals to earn an honest living free from unreasonable government interference. There is no legitimate justification for prohibiting a food truck from operating on a certain block because a brick-and-mortar business located almost two football fields away also sells food. Moreover, the Florida Supreme Court has repeatedly held that protectionism is not a legitimate government interest under the Florida Constitution.

Benny Diaz celebrated the final end to his legal fight with Fort Pierce with the knowledge that he will not be stopped from serving customers his delicious tacos at his Taco Trap food truck.

“This is fantastic news,” said Benny. “We filed this lawsuit to make Fort Piece freer for everyone. The preliminary injunction had already caused a huge increase in food trucks operating in Fort Pierce. This final judgment means that food trucks are here to stay. I am excited.”

“What Fort Pierce was doing was wrong,” said Brian. “The preliminary injunction was a great first step, but this final judgment means that the ban is gone forever. I am thrilled.”

Because of their lawsuit, numerous food trucks are now serving residents tasty treats and meals throughout Fort Pierce.

“Food trucks tend to be the first step towards building a larger business, and this is a process that should be encouraged, not obstructed,” said IJ Attorney James Knight. “With this judgment, future food truck entrepreneurs will be guaranteed the opportunity to thrive.”

The judgment declares that the food truck ban violated the Florida Constitution, awards one dollar in nominal damages to each plaintiff and awards the costs of litigation to the plaintiffs.

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San AntonioEl Paso, Texas; Carolina Beach, North Carolina; and Louisville, Kentucky, have successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors.

Roseau Landowner Coalition Condemns Denial of Environmental Impact Statement for Roseau Lake Project

ROSEAU, Minn.—Yesterday afternoon, Minnesota’s Department of Natural Resources (DNR) dealt a sharp blow to property rights in Roseau by announcing it would not require an Environmental Impact Statement (EIS) for its Roseau Lake Rehabilitation project. The project has generated controversy for threatening to make productive, multigenerational farmland of over fifty families unusable, as well as for the frequently changing justifications for the project and lack of transparency. An EIS is issued for projects that DNR determines have the potential for “significant environmental effects,” a process that the Roseau County Landowners Coalition hoped would help expose the disastrous effects DNR’s and the Roseau River Watershed District’s (RRWD) project will have on Minnesota farmers. Now, Roseau farmers must rely on making their voices heard by elected leaders and government officials to stop the project because the environmental review process has failed them.

The Roseau County Landowners Coalition has worked alongside the Institute for Justice (IJ), a national nonprofit dedicated to stopping government abuse of property rights.

“A project that would render thousands of acres of productive farmland unusable is certainly ‘environmentally significant,’” said IJ Activism Manager Melanie Benit. “DNR’s refusal to require a full Environmental Impact Statement for this project is a prime example of government unaccountability.”

The coalition condemned DNR for being both the project proposer and reviewer, and RRWD for its failure to hold up its mediation agreement concerning flood damage reduction projects, noting the proposed Roseau Lake project will do nothing for exceptional storms, a benchmark agreed upon for flood reduction projects. The project work team, which includes landowners and whose participation in project development is required by the agreement, has also been largely ignored by the RRWD for years.

The given justification for the project has constantly changed—from a wetland habitat for ducks, to an attempt at flood reduction for areas outside Roseau, and a project for recreational activities. But for whatever reason the state uses to move the project forward, it would mean one thing for Roseau landowners: they would lose the farmland that they worked so hard to own and would no longer be able to pass it down to their children.

Mitch Magnusson is one of the farmers whose history of working Roseau’s rich farmland goes back generations. Mitch began working his own land in the 1980s; before that, Mitch and his brothers helped their father farm, who helped his father farm, who helped Mitch’s great-grandfather farm after he immigrated from Iceland in the 1800s. He expressed the anguish DNR’s decision means to him while calling for fellow Roseau landowners to keep fighting.

“It’s disgusting that they won’t consider conducting an EIS. It really goes back to why the DNR checks their own homework,” Mitch said, adding: “We’re going to continue fighting it to the end. It is a setback, but none of us are giving up.”

Mitch’s son Matthew Magnusson also pursues the family tradition of farming Roseau’s land for crops like soybeans, wheat and sunflowers. He noted that, while the DNR project no longer calls for outright taking of his land through eminent domain, the project’s inevitable catastrophic damage to his land is hardly better.

“The property that we call our own isn’t really that if they can take it away like this. What good is freedom, if you can’t keep your own property?” Matthew said.

Patrick Nortz, a licensed hydrologist and certified professional engineer, estimated that this project will result in minimal flood reduction downstream—at a price tag for taxpayers of $15 million, greater than RRWD predicts. Far from a lake, the project would turn the usually dry basin into a semi-permanent marsh, typically six inches deep and up to 18 inches. Meanwhile, surrounding farmland will flood more.

The Kveen family, which has been farming in Roseau for over 130 years, lamented DNR’s decision and the risk it poses to their land.
“This is devastating,” said Debby Kveen. “As Americans we expect there to be a framework in place to protect us, our family, and our land. In this case, the system has completely failed us. It feels like we don’t have a voice.”

Landowners in Roseau, while devastated by the decision, are not giving up. They plan to make the case to the public that this wasteful project is only riding on its own inertia and must be stopped to protect the property rights of Minnesotans everywhere.

“It’s never too late to do the right thing,” said IJ Assistant Director of Activism Chad Reese. “DNR and RRWD can and should finally listen to the people who have owned, lived on, and farmed this land for generations and put a stop to this unnecessary $15 million boondoggle. Today, it’s farmers in Roseau. Tomorrow, it could be any Minnesotan farmer. Property owners throughout Minnesota should be deeply concerned about this process, because the current system is stacked against them from the very beginning.”

To get updates on this project, please like the coalition’s Facebook page or go to their website at https://roseaulandgrab.com/.

New Orleans Man Fights the Federal Government for His Life Savings

NEW ORLEANS—Kermit Warren is a hard worker, a grandfather and the head deacon of his church in the Lower Ninth Ward of New Orleans. Over the years, he diligently set aside cash from his jobs, saving nearly $30,000. But now, his money is in the hands of the federal government, which is trying to take all of it, even though he has not been charged with any crime. To reclaim his life savings, Kermit has teamed up with the Institute for Justice (IJ), a non-profit, public interest law firm that protects property rights nationwide.

Like many others, Kermit lost his job at the historic Roosevelt Hotel due to the COVID-19 pandemic. So he decided to turn his part-time scrapping business into a full-time job. But on a trip to Ohio to purchase a tow truck for the business, Drug Enforcement Administration (DEA) agents took his life savings. Months later, the federal government filed a civil forfeiture case with flimsy allegations that the money is somehow connected to the drug trade. Kermit’s case demonstrates the abusiveness of civil forfeiture, which requires property owners to effectively prove their own innocence in court.

“Traveling with cash is not a crime, but DEA and TSA continue to treat innocent travelers like criminals and take their hard-earned money using civil forfeiture,” said IJ Senior Attorney Dan Alban. “These abuses disproportionately harm those of modest means and people of color. Like Kermit, many victims are blue-collar workers who are traveling to buy used vehicles or other equipment for their business from people they’ve never met; they have to pay cash to close the deal.”

Kermit has worked many jobs over his career. He worked as a longshoreman at the port of New Orleans. He was a contractor with the Army Corps of Engineers, helping to clean up the city following Hurricane Katrina. He worked at the popular Central Grocery, helping to make their world-famous muffuletta sandwiches. But with the pandemic making travel all but impossible, he was laid off from his job shining shoes at the Roosevelt. During all this time, he collected and hauled scrap metal to supplement his income.

When his son Leo was laid off from his job at another hotel, the two decided to make Kermit’s part-time scrapping business their full-time jobs. But to do that, they needed a tow truck. They thought they found the right truck outside Columbus, Ohio. After negotiating a cash price, the two purchased one-way tickets, hoping to drive the truck back to New Orleans. But when they got to Ohio and finally saw the truck, they realized it was too large for their needs. They went to the airport and bought one-way tickets back home to New Orleans.

Going through airport security screening, Kermit was asked about his cash by TSA screeners, but was allowed to continue to his gate. Later, while Kermit and Leo waited for their flight, they were approached by three DEA agents and interrogated about Kermit’s money. Desperate not to lose his life savings, Kermit panicked and made a mistake that he regrets: He told the agents that he was a retired New Orleans police officer and showed them a badge his older son, Kermit Jr., had given him after he left the force. Kermit quickly admitted the truth about the badge, and the agents seized all of hislife savings. But they had no basis to believe that Kermit’s cash was connected to any criminal activity.

Kermit and Leo were allowed to board their flight, and were not charged with any crime, but months later the government filed a civil forfeiture complaint seeking to keep Kermit’s money based on vague and baseless accusations that it is connected to drugs.

“The government shouldn’t be able to take every dollar I’ve saved up when I’ve committed no crime,” said Kermit. “Since they seized my money it has been very difficult for me to provide for my family and pay my bills. The way the government has treated me made me feel like dirt. I hope not only to get my money back, but to stop this nightmare from happening to anyone else.”

Kermit finds himself trapped in the upside-down world of civil forfeiture, where the government brings charges against property instead of people. The federal government does not have to convict or even charge people with a crime in order to permanently keep their property. Property owners are not entitled to legal representation, and the standard of proof needed for the government to keep the property is far lower than in a criminal case.

Flying domestically with any amount of cash is completely legal, but law enforcement routinely seizes large amounts of cash at airports. IJ is currently litigating a class action against DEA and TSA over their practices of stopping people who are traveling with large amounts of cash and seizing the money without probable cause.

“DEA’s practice of ‘see money, seize money’ counts on people’s inability to navigate the maze of civil forfeiture proceedings in order to get their property back,” said IJ Attorney Jaba Tsitsuashvili. “The government shouldn’t be able to keep a person’s life savings without a related criminal conviction. But people like Kermit are essentially forced to prove their innocence just to keep what they worked so hard to earn. And law enforcement agencies use that money to pad their own policing budgets. This abuse needs to end.”

Washington Supreme Court Finds Excessive Fines Unconstitutional

SEATTLE—Today, the Washington Supreme Court ruled that depriving someone of their shelter—in this case a truck—constitutes an excessive fine under the U.S. Constitution. The case, City of Seattle v. Long, No. 98824-2, comes after the U.S. Supreme Court held three years ago that state and local governments must abide the Constitution’s Eighth Amendment, which prohibits governments from levying excessive fines.

The case concerns Steven Long, who, like many Washingtonians, lost his housing and was forced to live in his truck. He parked it on an out-of-the-way gravel lot owned by the city of Seattle. When Seattle police responded to an unrelated call, they told Long he was violating Seattle law by parking in one location for more than 72 hours. Long’s truck was inoperable, so Seattle towed the truck and imposed over $500 in impound charges. Long appealed, arguing, among other things, that the impound charges were unconstitutionally excessive. Both the King County Superior Court and the Washington Court of Appeals concluded that the charges did not violate the U.S. Constitution’s prohibition on excessive fines.

The Washington Supreme Court unanimously disagreed and reversed the lower court orders. The court found that the impound charges were unconstitutionally excessive. Importantly, the court decided an open question in Washington law—whether a court must consider a defendant’s personal circumstances in deciding whether a fine is unconstitutionally excessive. The court held:

The weight of history and the reasoning of the Supreme Court demonstrate that excessiveness concerns more than just an offense itself; it also includes consideration of an offender’s circumstances. The central tenant of the excessive fines clause is to protect individuals against fines so oppressive as to deprive them of their livelihood.

“Today’s decision is a victory for every Washingtonian,” said Bill Maurer, the Managing Attorney of the Institute for Justice’s (IJ) Washington Office, who authored a friend-of-the-court brief in case. “The Washington Supreme Court decision recognizes that a $500 fine may not be excessive for a billionaire, but for someone who is so poor they need to live in their vehicle, it is unconstitutionally ruinous.”

Joining IJ’s brief were the Fines and Fees Justice Center, the Southern Poverty Law Center, the Oregon Law Center, Equal Justice Under Law, the Policy Advocacy Clinic and the MacArthur Justice Center.

Maurer continued: “The Washington Supreme Court’s decision should act as a roadmap for every court considering how to implement the Excessive Fines Clause in the states. IJ and its allies will continue to push state and federal courts across the country to halt the imposition of excessive fines, especially those imposed on the most vulnerable among us.”

Family Farm in Town of Eagle Wins Early Court Victory Against Out-of-Control Fines and Fees

MILWAUKEE—A small, veteran-owned farm in the Town of Eagle won an early court victory in its legal challenge against fines and fees that were issued after the owners criticized local officials. In December 2020, Erica and Zach Mallory, owners of Mallory Meadows, teamed up with the Institute for Justice (IJ) to protect their home and business after town officials threatened them with more than $20,000 in fines and fees as punishment for the Mallorys’ speech.

“We’re thrilled that the federal court granted our request for a preliminary injunction, protecting Erica and Zach from continued harassment by the town while they seek to vindicate their constitutional rights,” said IJ Attorney Kirby West. “We’ll continue to fight alongside Erica and Zach as this lawsuit moves forward.”

The Town of Eagle in Waukesha County, Wisconsin, looks like many other places in the Badger State, with its rural homes and small farms. But, as Erica learned, this town has a dark side. After Erica began speaking out in support of neighbors, and against the town’s leadership, she quickly found her own small farm in the crosshairs. The farm was subjected to numerous inspections, threatened with tens of thousands in fees, and forced to make unwanted and unnecessary changes. Now, with the order that U.S. District Court Judge Stadtmueller issued late Friday, the Mallorys are protected from further inspections and enforcement actions while their lawsuit continues.

“Wisconsin’s state motto is ‘Forward’ and our family is thrilled to see our case against the Town of Eagle moving forward,” said Erica. “Our hope is that the progress continues as we continue to speak up for what is right for our family and the citizens of the town.”

The town’s enforcement against the Mallorys raises many red flags. First, the government cannot punish individuals for speaking out, regardless of whether code violations exist. When Erica asked one of the board members about the board’s decision to pursue ordinance enforcement against the Mallorys, Erica was told that she had “ticked off all the board members with [her] meeting comments and on Facebook,” and so “the board members voted with emotion.” As the federal court observed, this email provides strong evidence of the town’s improper motivations and a First Amendment violation.

Second, the town’s code enforcement is handled by a private law firm that, due to its hourly pay, directly benefits from initiating enforcement actions and drawing them out. When the Mallorys tried to resolve their enforcement action out of court, the firm explained that it would only agree to not pursue more than $20,000 in fines if the Mallorys agreed to cover all costs and fees—including the firm’s bills—related to the enforcement. The town asked the federal court to dismiss the Mallorys’ claim related to this improper profit incentive, but the court declined. Instead, Friday’s court order sends these legal claims back to state court for further consideration.

IJ also represents fellow Town of Eagle residents Joe and Annalyse Victor in a separate suit to protect them from abusive fines and fees. The Victors’ case is currently before the Wisconsin Court of Appeals, where the Victors have asked the court to reverse an $87,900 judgment that was entered against them for parking their tractor-trailers on their own 8.5-acre property. In addition to being unconstitutionally excessive, the judgment was entered in violation of Wisconsin law and the procedures required by the U.S. Constitution.

 


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Supreme Court Must Decide: Will Federal Police Remain Above the Law?

Arlington, Va.—Nearly 60 million Americans now live in states where federal police can escape accountability even when they clearly violate someone’s constitutional rights. But two cases appealed to the U.S. Supreme Court by the Institute for Justice (IJ) seek to change that.

On August 6, 2021, IJ filed two petitions with the U.S. Supreme Court asking it to reverse appeals court rulings that granted absolute immunity to federal law-enforcement officers who violated the constitutional rights of ordinary Americans.

The first appeal seeks to overturn an 8th U.S. Circuit Court of Appeals ruling that granted immunity to a federally deputized St. Paul, Minnesota, police officer whose well-documented lies and deception cost Hamdi Mohamud—who was a teenage Somali refugee—two years of her life unjustly spent behind bars.

The second IJ appeal, filed on behalf of Kevin Byrd, seeks to reverse a 5th Circuit decision that also granted immunity to an officer with a federal badge—a Department of Homeland Security agent who tried to smash Kevin’s car window with a gun, and unlawfully detained him at gunpoint (even unsuccessfully pulling the trigger), all to prevent him from investigating the involvement of the agent’s son in a drunk-driving accident. After seeing the video recording of the incident, officers released Kevin and arrested the agent.

Earlier this year, the Institute for Justice also asked the High Court to take the case of José Oliva, a 70-year-old Vietnam veteran who was brutally choked and beaten by federal police in a Veterans Affairs hospital in an unprovoked attack caught on camera. As with Hamdi’s and Kevin’s cases, José sought to reaffirm that federal police officers are not above the Constitution, but the Court recently declined to review his case.

In all three cases, the actions of federal police were so egregious that they were denied qualified immunity by lower courts. But in all three cases, the appeals courts threw out the constitutional claims, effectively granting the officers absolute immunity because they worked for the federal government.

“If state or local police officers took the same actions as the officers in Hamdi’s, Kevin’s or José’s cases, they could be held accountable in a court of law by their victims for clearly violating their constitutional rights; but the courts have turned a federal badge into a shield against the Constitution, and that needs to change,” said Institute for Justice Attorney Patrick Jaicomo. “This absolute immunity for federal police officers makes no sense and violates this country’s founding principle that where there is a right, there must be a remedy.”

“Right now, if you live in the heartland of America—from Minnesota to Louisiana and Texas to North Dakota—anyone who carries a federal badge can violate your constitutional rights with absolute impunity,” said Institute for Justice Attorney Anya Bidwell. “There is a federal statute that allows state and local officers to be held accountable when they violate someone’s constitutional rights, and the courts have leaned on the fact that there is no analogous law doing the same for federal officers, thereby allowing them to escape accountability. But this groundless legal theory ignores the first 200 years of this nation’s history and the limits on federal officials imposed by the Constitution itself. Federal appeals courts will continue to advance this legal fiction with horrific consequences for ordinary Americans like Hamdi, Kevin and José until the U.S. Supreme Court fixes this once and for all.”

Institute for Justice Attorney Marie Miller explained, “All Hamdi, Kevin and José have been seeking from the U.S. Supreme Court is their day in court—to go back down to the trial court and make these officers have to answer in a court of law for what they did, then allow the judge or a jury to decide if these officers violated their constitutional rights. That isn’t too much to ask for in this country. In fact, that’s what the Constitution demands.”

As a federal judge in Kevin’s case lamented, “Private citizens who are brutalized—even killed—by rogue federal officers can find little solace” in the current accountability framework. “[R]edress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.”

IJ Attorneys Jaicomo and Bidwell recently wrote in an op-ed about how surprising it is that conservatives are often the jurists expanding government immunities, especially when it comes to federal police. They wrote, “Conservatives have traditionally recognized even the best-intentioned civil servants can overstep their bounds and violate someone’s constitutional rights. That is why they have for generations voiced support for constitutional limits on government, and especially the federal government, which was designed to have limited, enumerated powers. But there has long been a glaring exception to conservative wariness of federal power: Law-enforcement officers. Over decades, conservative judges and policymakers have effectively placed federal law-enforcement officers above the law, freeing them from the consequences of their human frailties. As a result, good cops have found it harder to do their jobs, and law-abiding citizens across the nation have been assaulted, robbed, falsely imprisoned, and even killed by those who carry a federal badge and a gun, adding insult to their physical injuries.”

Jaicomo and Bidwell continued, “Increasingly, America’s predictable rule of law is being replaced with the arbitrary and irrational rule of man, with a federal badge providing a shield of absolute immunity from accountability in cases where citizens’ constitutional rights are violated. This is true not only for federal law-enforcement officials, but also for the large number of state and local police officers deputized each year as members of joint state-federal task forces.”

Although many don’t want to second-guess the split-second judgment of law-enforcement officers, cases like the one involving the federally deputized officer in Hamdi Mohamud’s case—who repeatedly lied over a period of years, causing Hamdi to be arrested and forcing her to remain behind bars—demonstrate that even officers who scheme over time to violate someone’s rights are not held to account. The officer who lied in Hamdi’s case remains on the job to this day.

IJ President Scott Bullock said, “IJ, through our Project on Immunity and Accountability, seeks to ensure that the Constitution serves to limit the government in fact, not just in theory, and that promises enshrined in its Bill of Rights are not empty words but enforced guarantees. IJ does all this because we believe that if citizens must follow the law, then government and its officials must follow the Constitution.”

 [NOTEFor more information on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205. More information on these cases is available at: https://ij.org/case/federal-police-immunity-cert-petitions/.]

Pasco Families Win Round One in Lawsuit Challenging Predictive Policing Program

TAMPA, Fla.—Today, a federal judge dealt a blow to Pasco County Sheriff Chris Nocco’s Orwellian “predictive policing” program. Judge Steven D. Merryday issued an order denying the Sheriff’s motion to dismiss a lawsuit brought by a group of residents targeted by the county’s controversial practice of identifying and harassing supposed “future criminals”—including kids under the age of 18.

Today’s ruling means that the county’s efforts to have the case thrown out have failed and the plaintiffs will have their day in court.

“Today’s decision is an important step toward the ultimate dismantling of the program,” said Ari Bargil, an attorney at the Institute for Justice (IJ), which represents the plaintiffs. “By rejecting the PCSO’s attempt to have the case thrown out, the judge signaled that the plaintiffs’ claims are meritorious and that a full inquiry into the constitutional legitimacy of the program is necessary. We look forward to proving up our claims in the weeks and months to come.”

The lawsuit, which was filed in March 2021, seeks to end the county’s dystopian “predictive policing” program once and for all. As an award-winning Tampa Bay Times investigation uncovered, under the program, deputies regularly show up at the homes of targeted individuals unannounced and demand entry. If they or their parents don’t cooperate, deputies write tickets for petty violations, like missing house numbers or having grass that is too tall. As one former Pasco County deputy put it, they were under orders to “make their lives miserable until they move or sue.” The program was in the headlines once again last week, after it was revealed that the PCSO sent bizarre letters to those targeted under the program to “congratulate” them for their inclusion.

“The Pasco Sheriff’s Office has appointed itself judge, jury, and executioner in the lives of its residents, punishing alleged future criminals for hypothetical crimes that have not been committed,” said IJ Senior Attorney Rob Johnson. “Today’s decision means the Sheriff is going to have to justify that behavior before a real judge.”

Victory for One U.S. Private Vaults Box Renter: Faced With Court Order, FBI Will Return Seized Cash

LOS ANGELES—More than four months after the FBI seized the $57,000 in cash that Joseph Ruiz kept in his safe deposit box, the government has finally thrown in the towel and agreed to return his money. Yesterday’s filing comes after United States District Judge R. Gary Klausner issued an order on July 23 directing the government to “show cause to the Court in writing as to why the Government continues to seize the contents” of Joseph’s box.

Judge Klausner’s July 23 order found that, “[t]o date, 106 days after Ruiz asked the FBI for his property back, the Government has neither returned the $57,000 nor provided an adequate justification for the prolonged seizure.” Judge Klausner directed that “[i]f the Government fails to return the property in seven days and is unable to articulate an adequate justification for the ongoing seizure,” then the “Court will amend this Order to require the Government to return the contents.”

Judge Klausner issued his order in a case filed by the Institute for Justice (IJ) on behalf of Joseph and several other box holders at U.S. Private Vaults. The case was filed as a class action and, ultimately, seeks to secure relief on behalf of a broader class of box holders.

“It’s amazing the FBI needs to be told this, but the government cannot go around seizing property without a good reason,” said IJ Senior Attorney Rob Johnson. “The FBI grabbed over $85 million from U.S. Private Vaults customers, including Joseph, and it has never provided a good explanation why. The FBI needs give all that property back.”

The warrant authorizing the raid on U.S. Private Vaults specifically stated that it “does not authorize a criminal search or seizure of the contents of the safety deposit boxes.” Despite this clear direction, the FBI opened every box in the vault and forced individuals to prove their own innocence to get their property back. For instance, in a filing just last week, the government insisted that it should be allowed to retain Joseph’s funds because, while Joseph had said the money was received through settlements, he “provided no documents to support this assertion.” The government finally backed down after Joseph submitted copies of the settlement checks.

“I visited U.S. Private Vaults to get into my box on the same day as the raid. I willingly spoke with agents and still don’t understand why they didn’t give me my money that day,” said Joseph Ruiz. “The last five months have been very difficult and I look forward to resuming the medical treatment my savings were meant to pay for. No one should have to go through this.”

At this time the Court has not certified a class, and the July 23 order applied only to Joseph Ruiz. In a recent filing, however, the government said that it “expects to make a decision shortly” whether to return property seized from some other U.S. Private Vaults box holders.

The FBI recently contacted IJ attorneys to schedule the return of approximately $100,000 in gold and $63,000 in cash seized from Travis May, the CEO of an LA-based technology business who used his box to store a rainy-day fund. However, two other IJ clients, along with countless other U.S. Private Vaults box holders, are still waiting to hear what the FBI has planned for their property. Jeni Pearsons works at a nonprofit theater, and her husband Michael Storc works as a transportation coordinator in the film industry. Together, they stored $20,000 in silver in their box as a retirement nest egg. The government has made no move to return their property.

“The FBI’s ‘decision’ shouldn’t be difficult,” said IJ Senior Attorney Robert Frommer. “The FBI promised that it only wanted to reunite people with their property, yet it has held Jeni and Michael’s silver hostage for months. But the government can’t take your stuff and then force you to prove your innocence just to get it back. Judge Klausner’s order makes clear the government needs to stop playing games, return everyone’s property, and bring this sordid affair to an end.”

The Institute for Justice is a national non-profit law firm dedicated to upholding individual rights. IJ is joined in this case by local counsel Nilay Vora and Jeff Atteberry of the Vora Law Firm P.C.

Massachusetts Special Commission Calls For Civil Forfeiture Reform

In an extensive report released late last week, a special commission created by the Massachusetts Legislature urged lawmakers to overhaul civil forfeiture, which lets law enforcement seize and keep property without prosecutors ever charging anyone with a crime. Although civil forfeiture is often defended as a way to target drug kingpins, the reality is far different. Over the past three fiscal years, 86 percent of all cash forfeitures involved amounts of less than $10,000, including as low as $6.20. 

Worse, once a property has been forfeited, police and agencies can keep up to 100 percent of the proceeds. According to the Institute for Justice’s nationwide study of civil forfeiture, Policing for Profit (which was included in its entirety as an exhibit to the special commission’s report), Massachusetts law enforcement has forfeited nearly $182 million under state law since 2000.

Established in 2019, the Special Commission to Study Civil Asset Forfeiture Policies and Practices in the Commonwealth was tasked with examining the scope of civil forfeiture in Massachusetts, as well as best practices found in other states. Among its multiple recommendations for reform, the most sweeping would be to redirect all forfeiture funds away from law enforcement coffers “to either the General Fund or specific programs to combat substance abuse or assist victims of crime.” As the special commission rightly points out, this reform “would remove an incentive to seize property in the budgetary self-interest of law enforcement.”

The special commission also urged lawmakers to raise the standard of proof to forfeit property. Currently, Massachusetts is an “outlier” and merely requires probable cause to permanently confiscate property, “the lowest burden of proof in the country.” That is a far cry from the highest standard, i.e. ending civil forfeiture and replacing it with only criminal forfeiture as have Nebraska, New Mexico, North Carolina, and most recently, Maine

Moreover, to better protect low-income property owners from abusive forfeitures, the special commission recommended creating minimum seizure thresholds (as is the case in Alabama and Florida) and require court-appointed counsel for indigent owners in forfeiture cases. Since hiring an attorney to fight back in court can easily cost more than what the seized property is worth, many owners don’t even engage in civil litigation to get back their property. In recent years, 72 percent of all forfeiture cases in Massachusetts ended in a “default judgment,” or automatic wins for the government. 

Finally, the special commission “found deficiencies in the reporting requirements,” which fail to show how “property is actually allocated.” Bolstering transparency requirements and “documenting all funds is essential for the fair administration of justice.”

“The special commission’s report confirms what we have long argued: Civil forfeiture is one of the greatest threats to private property and civil liberties in Massachusetts today,” said Institute for Justice Senior Attorney Dan Alban, who testified before the special commission and heads IJ’s initiative to end civil forfeiture. “Massachusetts has the absolute worst civil forfeiture laws in the nation. By adopting the special commission’s worthwhile recommendations, the Massachusetts Legislature can end policing for profit and become a leader in forfeiture reform.”

Illinois Becomes Second State to Enact Right to Garden Bill

Gov. J.B. Pritzker on Friday signed the Illinois Vegetable Garden Protection Act (HB 633), a bill that will preserve and protect the right of all Illinoisans to “cultivate vegetable gardens on their own property.” Introduced by Rep. Sonya Harper, the Act will protect the right to grow vegetables, as well as “herbs, fruits, flowers, pollinator plants, leafy greens, or other edible plants.” 

“I just want to grow my own food on my own property. In America, that really shouldn’t be such a controversial idea, and it certainly shouldn’t be illegal,” said Nicole Virgil, an Elmhurst resident whose efforts to grow vegetables in her rear yard have been repeatedly stymied by local officials. “Now that the Vegetable Garden Protection Act has passed, we look forward to helping other Illinois residents enjoy their own backyard produce all winter long. Recent events have caused many to consider how they can live more sustainable and independent lives, and we are happy to contribute to this groundswell.”

With the governor’s signature, Illinois is now the second state to provide express protection for the right to grow one’s own food. In 2019, Florida enacted the nation’s first statewide Vegetable Garden Protection Act, which sprouted from a years-long legal battle the Institute for Justice fought on behalf of a Miami Shores couple that was forced to uproot their 17-year old vegetable garden, after the city banned vegetable gardens in front yards. The Florida and Illinois legislative reforms are part of IJ’s National Food Freedom Initiative, which promotes the ability of individuals to produce, procure and consume the foods of their choice.

“This new law will strip local governments of the power to impose HOA-style prohibitions on an act of self-sufficiency in which humans have been engaged for thousands of years,” said IJ Attorney Ari Bargil. “Over a year ago, as fears of the Covid-19 pandemic took hold nationwide, many Americans developed grave concerns about the weaknesses in our nation’s food-supply chain as grocery stores rationed purchases and shelves grew depleted. As the past year has shown, the ability to grow food is not just a right—for many, it is a necessity. Enacting this bill is an important step in the march for food freedom for all Americans.”

Minnesota DNR Announces One-Month Delay On Controversial Roseau Lake Project Environmental Impact Statement

ROSEAU, Minn.—Yesterday morning, the Minnesota Department of Natural Resources (DNR) announced a 30-day delay on the decision about whether or not it will issue an Environmental Impact Statement (EIS) for the Roseau Lake Rehabilitation Project. The project has generated controversy for its effects on the productive farmland owned by over fifty families who’ve farmed the land for generations. This project would make their land unfarmable.

An EIS is issued for projects that DNR determines have the potential for “significant environmental effects.” The Roseau Landowners Coalition, which formed to stop the project, wants DNR to require an EIS to determine the full environmental impact of this misguided project.

The Roseau Landowners Coalition has worked alongside the Institute for Justice (IJ), a national nonprofit dedicated to stopping government abuse of property rights.

“The people who have lived and farmed this land for generations know it better than anyone. They know what the consequences of the project would be, and an EIS is a necessary first step in making sure that the DNR understands what’s at risk,” said Melanie Benit, IJ’s activism manager.

The announcement from DNR comes on the heels of a massive public awareness campaign at the Roseau County Fair about the project. There, more than 200 fairgoers wrote to DNR calling on them to halt the project.

The given justification for the project has constantly changed—between a wetland habitat for specialty ducks, an attempt at flood reduction for areas outside Roseau, and a project for recreational activities. But for whatever reason the state uses to move the project forward, it would mean one thing for Roseau landowners: they would lose the farmland that they worked so hard to own and would no longer be able to pass it down to their children.

“We have been here for generations. This misguided project has no real public benefit to justify the huge cost to us farmers,” said Terry Kveen, whose family has farmed their land in Roseau since his great-grandparents came to Minnesota in a covered wagon well over one hundred years ago. “This project will not result in meaningful flood reduction or foster a new wildlife habitat. It will simply destroy our very productive farmland and our family legacy.”

To get updates on this project, please like the coalition’s Facebook page or go to their website at https://roseaulandgrab.com/.

Unique Richmond Publisher Will Appeal After D.C. Judge Insists It Must Give the Government Free Copies of Its Books

WASHINGTON—Valancourt Books, a small Richmond publisher, will appeal a decision issued today by the U.S. District Court for the District of Columbia holding that Valancourt must provide the government with free copies of its books. In 2018, Valancourt teamed up with the Institute for Justice to file a lawsuit against the U.S. Copyright Office after it was threatened with fines that could have reached six figures for failing to comply with a “mandatory deposit” requirement.

“The government can’t punish people for publishing books without registering them,” said IJ Attorney Jeffrey Redfern. “The Copyright Office’s demand for free books just doesn’t square with the present state of copyright law, with modern book publishing or with the First Amendment. We hope that the appeals court will recognize the constitutional issues at stake in this case.”

“We’re obviously disappointed in the judge’s decision today, especially since IJ’s attorneys made such a clear and compelling case to the court, explaining why the government’s actions violate the Constitution. But we have no doubt this erroneous decision will be overturned on appeal,” said Valancourt co-founder James Jenkins.

Valancourt is a unique publisher run by James and his husband Ryan Cagle. James is a former lawyer who found his life’s calling reviving and popularizing rare, neglected and out-of-print fiction, including 18th century Gothic novels, Victorian horror novels, forgotten literary fiction and works by early LGBT authors. Founded in 2005, Valancourt has published more than 300 books, all of which they have permission to reprint, winning praise from literature professors and the press alike.

The U.S. Copyright Office is demanding copies of hundreds of books published by Valancourt. If Valancourt doesn’t send the books, they could be subject to fines of $250 per book (plus the retail price of the books), along with additional fines of $2,500 for “willful” failure to deposit the books. But there’s a problem: Valancourt doesn’t have the books. They are a print-on-demand publisher, and giving the federal government free books would damage their business.

The Copyright Office is correct that the law entitles the government to copies of Valancourt’s books. The law, however, is a relic of the United States’ old copyright system, which used to require sending books to the government to register copyright. Now, copyright is conferred instantlybut the legal requirement to send copies to the government remains in force anyway.

The book-deposit requirement is a symptom of a broader problem throughout the federal government. Like many federal laws, the book-deposit requirement is obscure; most people—perhaps even most people in the publishing industry—have no idea it exists. And, like many federal laws, the requirement is mostly unenforced. Publishers have to comply only when (as happened to Valancourt) one of the Copyright Office’s handful of “acquisitions specialists” happens to spot them and threatens them with astronomical fines. Given the sheer amount of self-published material, there is no question that thousands of books a year go undeposited without anyone noticing.

Washington Woman Claims Victory for the Right to Feed Others in Need

CLARKSTON, Wash.—When Kathy Hay saw her neighbors in need, she decided to help. She decided the best way to meet that need was to build a “little free pantry” to share food with her community. The idea took off immediately, and Kathy’s neighbors pitched in and donated enough food to serve dozens of people in need. But no good deed goes unpunished: a few weeks after she opened her pantry, the Asotin County Health District ordered Kathy to shut it down and follow a laundry list of unnecessary demands. A few months later, the Health District even sent Kathy an invoice—totaling over $2,800—and demanded that she pay the Health District for its enforcement action against her. Joined by two neighbors who used the pantry, Kathy filed a lawsuit in April 2020 with the Institute for Justice (IJ), a national nonprofit, to defend her right to feed her community. Over a year later, following a settlement with the local and state health departments, Kathy is re-opening her little free pantry today.

“You shouldn’t need to hire a team of lawyers to give an apple or fresh bread to a neighbor in need,” said IJ Attorney Caroline Grace Brothers. “Now, hundreds of people across Asotin County will be able to feed their neighbors with pantries just like Kathy’s without fear of government reprisal.”

Under the terms of the settlement agreement, Kathy—and anyone else in Asotin County—is allowed to share shelf-stable, commercially packaged foods and uncut fresh produce without any government restrictions. The Asotin County Health District also waived the $2,800 invoice that they sent her. Thanks to Kathy’s lawsuit, both the State Department of Health and the Asotin County Health District have published guidelines to help more people across the state fight food insecurity at a grassroots level.

Today, Kathy is rejoining the thousands of Americans that are using little free pantries to help fight hunger in their communities. Similar to little free libraries, little free pantries are small structures where people can donate or take food. With the economic effects of the COVID-19 pandemic causing food scarcity both in Washington and across the nation, many people used the little free pantry concept to help feed their food-insecure neighbors. And over 50,000 people signed a petition to demand that Kathy should be allowed to reopen her pantry to serve her community in the same way.

“I am beyond thrilled that Asotin County residents can now host little free pantries without fear of harsh punishments,” Kathy Hay said. “I am very pleased that produce and bread will be allowed, and that the guidance for hosting a pantry will be minimal and clear. I feel hope in the future because the American ideals of freedom, charity and justice have prevailed.”

Kathy herself has struggled to make ends meet, and she knows what it feels like to have a hard time putting food on the table. She wanted to do something that would allow her neighbors to be more engaged in helping one another, and she even personally built ten additional little free pantries that can now operate all around her community. Because Kathy fought for her right to run her little free pantry, hundreds more will soon be able to follow in her footsteps.

New Report Uncovers the Shocking Student Debt Burden Utah Beauty School Students Take On

ARLINGTON, Va.—A new report reveals for the first time the shocking amount of debt Utah beauty school students take on only to end up in jobs that rarely pay off in terms of earnings. The examination of federal data on cosmetology schools nationwide shows that state-mandated education often fails aspiring beauty workers. Specifically, the new Institute for Justice (IJ) study finds:

  • Utah cosmetology students, who are typically lower-income, on average borrow more than $5,400 in federal student loans to complete the education required for cosmetology licensure. The average cosmetology program costs more than $14,400 and takes about a year.
  • On average, just over half of students graduate on time. No school in the state graduated all of its students on time during the period studied.
  • Those who graduate and get licensed can expect to earn just $26,570 per year on average, less than restaurant cooks or concierges, neither of whom must invest—by law—in costly education to work. With those wages, many may find it difficult to repay their student debt.

Tellingly, “Beauty School Debt and Drop-Outs: How Utah Cosmetology Licensing Fails Aspiring Beauty Workers” shows that most cosmetology programs exactly match state licensing mandates. When Utah reduced cosmetology licensing hours in 2013, over 90% of schools in the state shortened their programs to match. The study demonstrates that state cosmetology licensing doesn’t help students or the public—only cosmetology schools.

“Cosmetology students take on student debt hoping that their education will lead to greater economic opportunity, but our report reveals that beauty school is often a raw deal,” said IJ Senior Research Analyst Michael Bednarczuk, Ph.D., one of the study’s co-authors. “Utah’s licensing requirements funnel students into private, for-profit schools that receive millions of dollars in federal grants and student loans. Yet these schools often fail students and leave them with debt they cannot afford to repay. There are better ways than licensing to protect the public and state lawmakers should consider alternatives.”

Forcing aspiring beauty workers into costly and lengthy schooling might make sense if it were essential for public safety, but there are good reasons to think it is not. According to a recent legal analysis, nationwide, only about 25% of the material states require cosmetology schools to teach directly addresses health and safety. In fact, cosmetologists face steeper licensing requirements than workers in fields more directly linked to health and safety. For example, in Utah, cosmetologists must complete 13 times as much training as entry-level emergency medical technicians.

Lawmakers should refocus regulation on what is important: ensuring safe, sanitary practices at salons through inspections. For instance, restaurant workers are not required to complete burdensome state-mandated education to do their jobs. Instead, frequent inspections ensure that restaurants are clean and that workers are properly informed about health and safety hazards.

Despite increasing political polarization, decreasing occupational licensing burdens has been a bipartisan effort in recent years. Both the Obama and Trump administrations encouraged states to reduce licensing barriers. Just recently, President Biden called on the Federal Trade Commission to promote competition in the American economy, noting that “some overly restrictive occupational licensing requirements can impede workers’ ability to find jobs and to move between States.”

According to a 2020 nationwide poll conducted by Public Opinion Strategies, a majority of Americans—Republicans, Democrats and Independents—support efforts to reform occupational licensing. In addition, respondents ranked government-issued licenses as the least important factor in choosing a service provider. And when asked which criteria make a person qualified in an occupation, respondents put having a license last.

The Institute for Justice’s strategic research program produces social science and policy research to inform public policy debates on issues central to IJ’s mission. Past IJ strategic research reports on occupational licensing include a nationwide study of the burdens of licensing and a study on the costs of licensing in the states and nationwide. Another recent IJ report studied licensing barriers for ex-offenders.

New Report Uncovers the Shocking Student Debt Burden Beauty School Students Take On

ARLINGTON, Va.—A new report out today reveals for the first time the shocking amount of debt beauty school students take on only to end up in jobs that rarely pay off in terms of earnings. The examination of federal data on cosmetology schools nationwide shows that state-mandated education often fails aspiring beauty workers. Specifically, the new Institute for Justice (IJ) study finds:

  • Cosmetology students, who are typically lower-income, on average borrow $7,100 in federal student loans to complete the education required for cosmetology licensure. That debt burden is $600 higher than the average across all students. The average cosmetology program costs more than $16,000 and takes about a year.
  • On average, fewer than one-third of students graduate on time. And in any given year, between 15% and 31% of cosmetology schools saw none of their students graduate on time.
  • Those who graduate and get licensed can expect to earn just $26,000 a year on average, less than restaurant cooks, janitors or concierges, none of whom must invest—by law—in costly education to work. With those wages, many may find it difficult to repay their student debt.

Tellingly, “Beauty School Debt and Drop-Outs: How Cosmetology Licensing Fails Aspiring Beauty Workers” shows that most cosmetology programs exactly match state licensing mandates. When states reduce licensing hours, schools quickly fall in line by reducing the hours needed to graduate. The study demonstrates that state cosmetology licensing doesn’t help students or the public—only cosmetology schools.

“Cosmetology students take on student debt hoping that their education will lead to greater economic opportunity, but our report reveals that beauty school is often a raw deal,” said IJ Senior Research Analyst Michael Bednarczuk, Ph.D., one of the study’s co-authors. “State licensing requirements funnel students into private, for-profit schools that receive billions of dollars in federal grants and student loans. Yet these schools often fail students and leave them with debt they cannot afford to repay. There are better ways than licensing to protect the public and state lawmakers should consider alternatives.”

Forcing aspiring beauty workers into costly and lengthy schooling might make sense if it were essential for public safety, but there are good reasons to think it is not. According to a recent legal analysis, only about 25% of the material states require schools to teach directly addresses health and safety. In fact, cosmetology faces steeper licensing requirements than fields more directly linked to health and safety. For example, on average, cosmetologists must complete 11 times as much training as entry-level emergency medical technicians.

One reform lawmakers should consider is exempting obviously safe niche beauty services—things people can safely do to themselves with little or no training—from cosmetology licensure. In recent years, some states have dropped licensing requirements for shampooing, blow drying and styling, makeup artistry, eyebrow threading, eyelash extensions, and natural hair braiding. Another reform is refocusing regulation on what is important: ensuring safe, sanitary practices at salons through inspections. For instance, restaurant workers are not required to complete burdensome state-mandated education to do their jobs. Instead, frequent inspections ensure that restaurants are clean and that workers are properly informed about health and safety hazards.

Despite increasing political polarization, decreasing occupational licensing burdens has been a bipartisan effort in recent years. Both the Obama and Trump administrations encouraged states to reduce licensing barriers. Just recently, President Biden called on the Federal Trade Commission to promote competition in the American economy, noting that “some overly restrictive occupational licensing requirements can impede workers’ ability to find jobs and to move between States.”

According to a 2020 nationwide poll conducted by Public Opinion Strategies, a majority of Americans—Republicans, Democrats and Independents—support efforts to reform occupational licensing. In addition, respondents ranked government-issued licenses as the least important factor in choosing a service provider. And when asked which criteria make a person qualified in an occupation, respondents put having a license last.

The Institute for Justice’s strategic research program produces social science and policy research to inform public policy debates on issues central to IJ’s mission. Past IJ strategic research reports on occupational licensing include a nationwide study of the burdens of licensing and a study on the costs of licensing in the states and nationwide. Another recent IJ report studied licensing barriers for ex-offenders.

Entrepreneurship Advocates Praise City Council Approval of Sign Permit Reforms

CHICAGO—At a meeting this afternoon, the Chicago City Council voted to reform the city’s sign permit process to speed up approvals. Under the proposal, the full City Council would no longer need to vote on individual sign permits unless the local alderman and the Department of Business Affairs and Consumer Protection disagree on whether one should be issued. The Institute for Justice Clinic on Entrepreneurship at the University of Chicago (IJ Clinic) has advocated for reform for more than a decade and praised the Council’s action today.

“Coming off a difficult year of lockdowns and uncertainty, Chicago businesses need to let people know they are open and ready to serve customers,” said IJ Clinic Policy Fellow Noah Bazis. “Reform of the convoluted sign permit process has been a long time in coming. We hope that this helps our streets come back to life and revives the small businesses that are the backbone of their neighborhoods.”

Federal Judge Again Slams the Door on FBI Efforts to Forfeit Property Seized in U.S. Private Vaults Raid

LOS ANGELES—In an order issued this morning, U.S. District Judge R. Gary Klausner stopped the government from permanently taking the property of two people who rented boxes at U.S. Private Vaults. Joseph Ruiz and Travis May each had their valuables seized during the FBI’s March raid on the business. And while neither has been accused of or charged with any crime, the FBI is now trying to permanently take Joseph’s and Travis’ property, along with the property of hundreds of other people, using civil forfeiture. The Institute for Justice (IJ) teamed up with Joseph, Travis and other box holders in May to file a class action lawsuit challenging both the FBI’s unconstitutional search and seizure and its $85 million cash grab.

“The judge’s ruling today reaffirmed that the government cannot take property using civil forfeiture without giving a reason why,” said IJ Senior Attorney Robert Johnson. “Now the government needs to do the right thing and give this property back.”

The FBI’s seizure has been especially hard on Los Angeles resident Joseph Ruiz. An accident severely injured Joseph’s back, and he relied on the $57,000 in cash that he kept in his security box to get medical care and buy food. Joseph is running out of options: Cut off from his funds, he has been forced to stop seeking treatment and physical therapy.

“I am relieved the court again stopped the government from taking my money without saying what it thinks I did wrong,” said Joseph. “But I need that money for basic living expenses, and every day without it is painful. I hope the court’s ruling means the government will stop trying to steal my life savings.”

While the request for preliminary injunction was granted for Joseph and Travis, it was denied for married couple Jeni Pearsons and Michael Storc, who rented a box to store silver they bought as a nest egg for retirement. Jeni and Michael submitted a claim to the FBI in June, starting a 90-day clock requiring the government to either return the property or file a judicial forfeiture action. The order also did not grant a preliminary injunction on behalf of a broader class of individuals who had property seized and have identified themselves to the FBI.

Akron Homeless Charity Will Appeal Shelter Case’s Dismissal

AKRON, Ohio—Today, Akron homeless advocates announced they would appeal the dismissal of their lawsuit challenging the city’s refusal to allow the operation of a small shelter on private property. The lawsuit, which was filed in 2019, did not seek to resurrect the full tent village that arose the previous year, but allow only the emergency and temporary use of tents to avoid life-threatening peril.

“Federal courts have recognized the government can’t stop you from trying to save someone facing life-threatening danger, such as drowning,” said Jeff Rowes, a senior attorney at the Institute for Justice, which represents the organization. “By refusing to grant a variance, the zoning board is putting supposed ‘harmony’ above the lives of Akron’s most vulnerable residents.”

Akron activist and entrepreneur Sage Lewis founded the nonprofit Homeless Charity to help homeless Akronites whom he met while campaigning for mayor. Initially, he allowed a group of homeless individuals to use his commercial building at 15 Broad Street to operate a thrift store from items left over from his auction business.

Then, during a bitter freeze in January 2018, tent-dwelling homeless were forced to abandon their encampment in a park to make way for Akron’s Freedom Trail bike path. Rather than find another park to occupy, some of them asked Sage if they could pitch their tents in the secluded backlot of 15 Broad Street. There they would be safe and have access to a warm building on Akron’s coldest nights. By spring 2018, those first few tents had turned into a 44-tent, self-governing village where the homeless could seek shelter, obtain food and clothing, and take steps to rejoin mainstream society.

Sage and the Homeless Charity dismantled that village in November 2018 because of conflict with the city of Akron. But they still believed that tents had a role to play in dire emergencies such as extreme cold. Thus, they sought a variance from the city in December 2018 that would allow a small number of uniform tents to be used in emergencies.

When the Board of Zoning Appeals (“BZA”) denied the variance, Sage and the Homeless Charity sued in the Summit County Court of Common Pleas. The Homeless Charity, run by volunteers and a board of directors, has continued to serve the homeless and those in need in Akron while this litigation has been pending.

In addition to arguing that the BZA decision violated Akron and Ohio law, Sage and the Homeless Charity asserted that the Ohio Constitution protects their right to use private property to help those in desperate need, and that they have a separate constitutional right to rescue those in need. This is the first legal challenge of its kind concerning the homeless anywhere in the country.

The next step for Sage and the Homeless Charity is an appeal to the Ninth District Court of Appeals, which they expect to file in the coming weeks.

“This isn’t an ordinary zoning case where someone wants a variance for a backyard hot tub,” said IJ Attorney Diana Simpson. “This case is about the right to use land in a commercial area for the paramount purpose of saving lives. The Ohio Constitution does not allow bureaucrats to outlaw the small steps an ordinary person can take to save a fellow human being.”

The Institute for Justice is the nation’s foremost protector of property rights, and a pioneer in invoking property rights to help the homeless. IJ is also litigating a case in federal court in North Carolina, challenging the City of North Wilkesboro’s denial of a permit to operate a transitional shelter for those suddenly without housing, such as women escaping domestic violence.

Nashville Home-based Business Owners Take Their Case To The Tennessee Supreme Court

NASHVILLE, Tenn.—On Monday, the Tennessee Supreme Court accepted the case of two Nashville home-based business owners who challenged the city’s prohibition on working from home. Record producer Lij Shaw and hairstylist Pat Raynor, represented by the Institute for Justice and the Beacon Center of Tennessee, sued the city in 2017 after it shut down their businesses without any evidence the small businesses were harming the surrounding neighborhood. Now, after four years of litigation, the state’s highest court has accepted their appeal and agreed to hear their case.

“Lij and Pat have a constitutional right to use their homes to earn an honest living,” IJ Attorney Keith Diggs said. “By taking their case, we’re confident that the Tennessee Supreme Court will free Lij and Pat to live and work from their home, like so many other Americans.”

In the last two years, millions of Americans have adapted to working from home. But even before the pandemic, people like Lij Shaw and Pat Raynor started small businesses out of their home for a variety of reasons. Lij, who has lived in East Nashville for more than twenty years, has recorded nationally renowned, Grammy Award-winning performers such as John Oates, Tori Amos, Wilco and the Zac Brown Band. Lij is also a single father, so he invested thousands of dollars to convert his detached garage into a professional recording studio so he could work from home while raising his daughter.

Pat is a semi-retired cosmetologist. But after her husband Harold passed away in 2009, she undertook an expensive renovation of her garage to open up a state-approved one-chair hair salon – allowing her to continue to work and stay in the home she and Harold had bought together. Their experiences confirm that home-based businesses cost less to get off the ground, promote a healthy work-life balance, and create jobs that otherwise might not exist.

Responding to anonymous complaints, Nashville zoning inspectors told Lij and Pat they had to shut down. The city cited a law making it illegal to operate a home-based business that serves clients on-site. At the same time, the city allows other kinds of businesses that serve clients, like daycares or short-term rentals, to operate legally. It is this disparity that Lij and Pat are challenging.

The city admits that neither Lij nor Pat ever bothered their neighbors. They made no noise, and caused no traffic or parking problems. Indeed, Nashville does not even know who or why someone complained about Lij or Pat, since their enforcement system is based on anonymous complaints. And, as Nashville’s own inspectors testified, most complaints are made out of spite and don’t indicate any actual harm to the neighborhood.

During the height of the pandemic, Nashville temporarily repealed the on-site client law. But the temporary repeal expires in 2023 and the new law still treats Lij and Pat worse than other kinds of home-based businesses.

“My clients are my neighbors,” said Pat Raynor. “The city shut me down in 2013, even though I was operating under a state-approved shop license to cut hair in my home. I’ve been fighting for my rights ever since. I just want to be able to work from home under the same rules as everyone else does.”

“Beacon is extremely pleased that the Tennessee Supreme Court has accepted Lij and Pat’s appeal,” said Jason Coleman, General Counsel & Director of Legal Affairs for Beacon. “The pandemic has shown how important it is for all Tennesseans to have the option to work from home and how convenient it can be for entrepreneurs, small businesses, and their clients. We look forward to the Court recognizing our clients’ rights to earn a living.”

“So many of us in Nashville need to work from home,” said Lij Shaw. “I can run my studio under the city’s temporary rules, but those expire soon. It’s time for the courts to settle this once and for all.”

The Tennessee Supreme Court will hold an oral argument in this case later this year.

Maine Becomes Fourth State to End Civil Forfeiture  

In a major win for private property rights and civil liberties, Maine repealed its civil forfeiture laws on Tuesday, when a bipartisan bill (LD 1521) took effect without the governor’s signature. Unlike criminal forfeiture, which only allows the state to confiscate property after a criminal conviction, under civil forfeiture, law enforcement agencies can seize and keep property without prosecutors ever filing criminal charges. Maine now joins Nebraska, New Mexico, and North Carolina as the fourth state that ended civil forfeiture and replaced it with criminal forfeiture.  

“Civil forfeiture is one of the most serious assaults on due process and private property rights in America today,” said Institute for Justice Senior Legislative Counsel Lee McGrath, who testified in favor of the bill. “Today’s decision to repeal civil forfeiture ends an immense injustice and will ensure that only convicted criminals—and not innocent Mainers—lose their property to forfeiture.” 

Sponsored by Rep. Billy Bob Faulkingham, LD 1521: 

  • Repeals Maine’s civil forfeiture laws but retains the state’s criminal forfeiture process. Only in a few narrow exceptions—death, deportation, or if the defendant fled or abandoned the property—may law enforcement forfeit property without a conviction;  
  • Creates a new, prompt post-seizure hearing to strengthen due process; and 
  • Bolsters transparency by requiring forfeiture reports be publicly accessible on the Department of Public Safety’s website. 

Just as critically, LD 1521 closes the “equitable sharing” loophole. Through this program, state and local police collaborate with a federal agency or joint task force, and outsource forfeiture litigation to federal prosecutors, and receive up to 80 percent of the proceeds. Under LD 1521, Maine agencies are barred from equitable sharing, except for cases involving seizures that include $100,000 or more in cash. According to a 2020 report by the Institute for Justice, Maine law enforcement have collected more than $14 million through equitable sharing over the past two decades. In contrast, just over $3 million was forfeited under state law between 2009 and 2019.  

“For too long, local and state law enforcement have used equitable sharing to bypass Maine state law because the federal governments offers substantially higher payouts to law enforcement than what law enforcement receives under state law,” McGrath added. “By closing this loophole, LD 1521 will preserve the Maine’s sovereignty and greater protection of Mainers’ rights from federal overreach.” 

Homeowner Facing $100,000 Parking Violation Wins First Round of Her Lawsuit Against Florida Town

WEST PALM BEACH, Fla.—This morning, a Florida court rejected the town of Lantana’s attempt to end a lawsuit filed by resident Sandy Martinez, who is contesting sky-high fines she was assessed for minor infractions on her own property. One parking violation, assessed daily for over a year, totals more than $100,000. The total amount the town fined her, which includes two other infractions, comes to an astounding $165,000, more than half what her home is worth. In February, Sandy teamed up with the Institute for Justice (IJ) to file a lawsuit asking the court to rule that her excessive fines violate the state constitution.

“Six-figure fines for parking on your own property are outrageous and today’s decision will allow Sandy to make the case that these fines are unconstitutional,” said IJ Attorney Ari Bargil. “While Florida’s Constitution forbids fines that are ‘excessive’ or ‘shock the conscience’, places like Lantana routinely impose crippling fines against residents for minor code violations. It is time that Florida courts make it clear that cities cannot fine people into poverty for trivial violations.”

“It’s surreal that the town still refuses to admit that what it’s doing to me is abusive and unfair,” said Sandy. “Like everyone else in my neighborhood, I work hard for what I’ve got. I shouldn’t have to fight in court to stop the city from fining me into poverty. But with today’s decision, I’m glad that I am one step closer to making sure that doesn’t happen—to me or anyone else.”

The $165,000 that Sandy owes is a result of daily fines that the city assessed for property code violations. Most of this amount is a result of the way Sandy’s family parks their cars. Sandy, her two adult children and her sister all own cars so that they can get to their jobs. When all four cars are parked in the driveway, sometimes one of them has two tires on the lawn, a $250 per day violation. And those fines continue to accrue until the homeowner corrects the problem and calls the city to inspect the property to confirm it is in compliance.

After receiving the parking violation, Sandy called the town like she was supposed to, but an inspector never came out. Once Sandy discovered that the fines were still accruing over a year later, she immediately called and passed the inspection. But by then, the amount she owed was $101,750. This fine is on top of fines for two other similarly trivial violations—for cracks in the driveway and a fence that fell over during a storm.

IJ has challenged abusive fines and fees across the country, notably in Dunedin, Florida, where a homeowner is facing foreclosure after he was fined over $30,000 in fines for tall grass. IJ has successfully protected homeowners in California and Missouri from abusive fines and fees practices. In 2019, IJ released a study of cities that relied heavily on fines and fees to balance their budgets, “The Price of Taxation by Citation,” and in 2020 released a 50-state survey of state laws governing municipal fines and fees.


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The Institute for Justice protects the constitutional rights of all Americans. IJ defends ordinary people who want to earn an honest living, own and enjoy their property, speak freely, and give their children a good education but find that the government is standing in their way—and we win 75% of our cases.

Wisconsin Ends Occupational Licensing for Hair Braiders

Wisconsin has now become the 31st state to eliminate licensing for natural hair braiders, thanks to a bill (AB 121) signed Thursday by Gov. Tony Evers. With a rich heritage spanning millennia, natural hair braiding is a beauty practice common in many African American and African immigrant communities. Unlike cosmetologists, braiders do not cut hair or use any harsh chemicals or dyes in their work. 

Yet Wisconsin was one of just six states nationwide that forced natural hair braiders to become a licensed barber or hairstylist before they could work legally. In Wisconsin, for instance, a barber’s license takes at least 1,000 hours of classes. Sponsored by Rep. Shelia Stubbs and Sen. LaTonya Johnson, AB 121 will finally and fully exempt braiding hair from the state’s licensing laws. 

Shortly after the governor signed the bill, President Joe Biden on Friday signed a new executive order urging the Federal Trade Commission to do away with “unfair occupational licensing requirements.” In his speech, President Biden specifically cited licenses for hair braiders as an example of a “significant burden”: “Do you realize if you want to braid hair, and you move from one state to another, you sometimes have to do a six-month apprenticeship, even though you’ve been in business for a long, long time? What’s that all about?” 

Today, occupational licensing is one of the largest barriers to upward mobility in the nation’s labor markets. According to a 2018 report by the Institute for Justice, nearly 1 in 5 workers now needs a license to do their jobs—a fourfold increase from the 1950s. Each year, burdensome licensing requirements result in 37,000 fewer jobs and cost Wisconsin’s economy up to $3.2 billion in higher prices and “misallocated resources.” A separate IJ study found that the average license for low- and middle-income occupations in Wisconsin required 214 days of coursework and experience, $259 in fees, and passing one exam. 

Since its founding, the Institute for Justice has filed over a dozen lawsuits on behalf of natural hair braiders and is currently challenging a specialty braiding licensing in Louisiana. The Institute for Justice has also published a study, Barriers to Braiding: How Job-Killing Licensing Laws Tangle Natural Hair Care in Needless Red Tape, which found that braiders received very few complaints and that strict licensing laws stifle economic opportunity. 

“The government has no business licensing something as safe and common as braiding hair. This is a great win for entrepreneurship, economic liberty, and just plain common sense,” said IJ Legislative Counsel Jessica Gandy, who lobbied on behalf of the braiders. “By removing unnecessary barriers to work, Wisconsin will let braiders pursue their American dream.”  

New Hampshire Eliminates Unconstitutional Restriction on School Tuitioning Program

CONCORD, N.H.—In a major win for educational choice, Gov. Chris Sununu yesterday signed a bill expanding the state’s town tuitioning program to include religious private schools. The tuitioning program empowers local school districts that do not operate public schools for certain grade levels to pay tuition for students to attend private schools or other public schools instead. Until today, the program did not permit school districts to pay tuition for families who wished to send their students to religious schools.

In September 2020, Dennis and Catherine Griffin of Croydon teamed up with the Institute for Justice (IJ) to file a lawsuit claiming that the restriction was unconstitutional discrimination under the First Amendment. The suit relied on a recent U.S. Supreme Court ruling in a case which the Institute for Justice litigated on behalf of Montana parents.

“We are happy the legislature did the right thing in removing politics from school funding by allowing individual choice on how our tax dollars are applied to our children’s education,” said Dennis Griffin. “Cathy and I feel Mount Royal Academy is the best choice for our grandson’s education and the government should not be restricting the use of our tax dollars from funding our choice.”

Croydon, New Hampshire, does not operate a middle or high school. Dennis and Catherine’s grandson is a seventh-grade student at Mount Royal Academy, a local Catholic school. Because Mount Royal is a religious school, Dennis and Catherine were not eligible for any tuition assistance from the Croydon School Board under the former law—even though the school board wanted to pay the tuition and Mount Royal wanted to accept the tuition from the school board. The law signed by Gov. Sununu today achieves that goal and gives the Griffins a happy resolution to their fight to vindicate their First Amendment rights.

In the opinion for the Supreme Court in Espinoza v. Montana Department of Revenue, Chief Justice John Roberts wrote that, “[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” New Hampshire’s new law brings its tuitioning program in line with this important principle.

“IJ will continue to litigate to ensure that state governments are following the rule set out in Espinoza. It’s great when state governments join us—rather than oppose us—in that goal,” said IJ Attorney Kirby Thomas West. “This law will allow New Hampshire families in tuitioning towns to choose the best education for their children.”

The Institute for Justice, the nation’s leading legal advocate for educational choice, is currently defending choice programs in Nevada and Tennessee and is challenging the exclusion of religious schools from Maine’s town tuitioning program. Before Espinoza, IJ also won twice at the U.S. Supreme Court for educational choice on behalf of parents in defense of Cleveland, Ohio’s and Arizona’s educational choice programs.

Supreme Court Will Hear Potentially Landmark Maine School Choice Case

Arlington, Virginia—Today, the U.S. Supreme Court agreed to hear a potentially landmark case challenging a Maine law that bans families from an otherwise generally available student-aid program if they choose to send their children to schools that teach religion. The Institute for Justice (IJ), which represents the parents in Carson v. Makin, will argue the case in the 2021-22 term before the justices.

In 2020, the Institute for Justice won the landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. The Court held that discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.

Despite that ruling, in October 2020 the 1st U.S. Circuit Court of Appeals upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, if a school district does not maintain its own public school or contract with a school to educate its students, it must pay for students to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Parents, however, may not select a school that Maine deems “sectarian,” which the state defines as a school that provides religious instruction.

According to the 1st Circuit’s decision, this exclusion turns not on the religious “status” of the excluded schools, but rather on the religious “use” to which a student’s aid would be put—that is, procuring an education that includes religious instruction. And the 1st Circuit upheld the exclusion even though it is parents—not government—who choose the schools their children attend under the program. In other words, the court held that although Espinoza prohibits Maine from excluding schools because they are religious, Maine can still exclude parents from choosing schools that do religious things.

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Senior Attorney Michael Bindas of the Institute for Justice. “The state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional. The Supreme Court now has the opportunity to hold that such religious ‘use’ discrimination in student-aid programs is just as unconstitutional as the religious ‘status’ discrimination it held unconstitutional in Espinoza.”

“In student-aid programs like Maine’s, parents—not the government—choose the schools their children will attend,” said IJ Managing Attorney Arif Panju. “If parents believe a school that aligns with their faith is best for their child, the state should not be allowed to deny them that choice.”

“The Court’s decision to hear this appeal is a tremendously important development not only for Maine families, but for all families who simply want access to the schools that will best serve their children’s needs,” added Bindas. “If a family believes that a school that provides religious instruction is the best option for their child, they should be permitted to choose it, just as they should be permitted to choose a school with a strong STEM curriculum, language immersion classes or a robust arts program.”

Lea Patterson, an attorney with IJ’s co-counsel First Liberty Institute, said, “For 40 years, Maine has rejected parental choice in education and allowed religious discrimination to persist. We are confident the Supreme Court will put an end to that discrimination, so that schoolchildren are no longer deprived of desperately needed educational opportunity and the right to freely exercise their religion.”

IJ President and General Counsel Scott Bullock added, “Now more than ever, it is time to expand educational opportunity for all families. Parents should have access to a wide array of educational options—public and private, religious and non-religious—so that they can access the school that best meets their child’s unique, individual needs. The Supreme Court now has the chance to help make that a reality.”

U.S. Supreme Court Donor Disclosure Ruling is a Victory for Freedom of Association

Arlington, Virginia—In its final opinion of the 2020-2021 Term, the U.S. Supreme Court today struck down a California requirement that all nonprofits operating in the state turn over a list of their largest contributors to the state’s Attorney General. The Institute for Justice (IJ) filed an amicus brief in the consolidated cases, Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta.

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IJ Senior Attorney Paul Sherman said, “Today’s ruling reaffirms vital protections for the rights of privacy and association. California required tens of thousands of charities to disclose their most sensitive donor information and then mishandled that confidential information so badly that it was easily available to anyone with an internet connection. The Court correctly recognized what a grave threat this requirement posed to the rights of free speech and association.”

All charities in California must register with the state as a condition of fundraising. But in 2010 the state cracked down on charities that failed to turn over their IRS Schedule B, a federal tax document that lists the largest donors to any federally registered nonprofit. The Americans for Prosperity Foundation and the Thomas More Law Center challenged the requirement, arguing that the suspicionless collection of their donor information unconstitutionally burdened their freedom of association. A federal trial court agreed, holding the requirement unconstitutional, but the 9th U.S. Circuit Court of Appeals later reversed that decision. The Supreme Court granted review in the case in January 2021 and issued its opinion today.

Although California claimed that these compelled disclosures were vital to enforcing its charitable solicitation laws, the evidence showed conclusively that the state virtually never looked at this information. Instead, the Court concluded, “California’s interest is less in investigating fraud and more in ease of administration.” But “[m]ere administrative convenience does not remotely ‘reflect the seriousness of the actual burden’ that the demand for Schedule Bs imposes on donors’ association rights.”

Sherman added, “As far back as the Supreme Court’s seminal ruling in NAACP v. Alabama, the Court has made clear that the government cannot require charities to turn over their donor information except in the most limited circumstances. California’s argument was essentially that the state could require disclosure of any information from anyone for any reason, as long as it promised to keep that information safe. But the First Amendment is as much a protection against the government’s prying eyes as it is against the public disclosure of private information.”

“Disclosure is supposed to be about keeping tabs on government, not keeping tabs on private citizens,” said Institute for Justice President & General Counsel Scott Bullock. “Transparency is important for the government so the public can assess the actions of its lawmakers. But privacy for the individual—in their freedom of speech and freedom of association—is an essential American value, going as far back as the anonymous authorship of the Federalist Papers. Those anonymous documents laid the foundation for the very Constitution that was debated before the U.S. Supreme Court in this case.”

Florida Barbers Free to Leave the Shop Under Newly Signed Law

TALLAHASSEE, Fla.—Gov. Ron DeSantis last night signed a bill into law allowing Sunshine State barbers to cut hair in places other than registered barbershops. House Bill 855 received unanimous support in both the Florida House and Senate. The Institute for Justice (IJ) supported the legislation, which expands on the sweeping licensing reform passed last year. That reform included a provision allowing cosmetologists to cut and style hair outside of salons, for instance, on the site of a wedding or a party. HB 855 allows barbers and their customers to enjoy similar options.

“Cutting hair does not suddenly become unsafe when it happens outside a barber shop,” said IJ Florida Office Managing Attorney Justin Pearson. “Barbers will now be able to cut hair at nursing homes, hospitals and in homes. Cosmetologists have already shown that this freedom provides huge benefits to consumers, especially during the pandemic. Barbers and their customers will now enjoy that same freedom.”

New Florida Law Eliminates Patchwork of Local Occupational Licenses in Florida

TALLAHASSEE, Fla.—Last night, Gov. Ron DeSantis signed a bill into law that will make it easier for many Floridians to work. House Bill 735 bans Florida municipalities and counties from creating additional licensing requirements for a long list of occupations. For instance, under the new law, cities cannot create new local occupational licenses for handyman services. For most of the listed occupations, any existing local licensing requirements must expire by July 1, 2023.

“This is a common-sense measure that will make it easier for many Floridians to operate their own businesses or seek employment,” said IJ Florida Office Managing Attorney Justin Pearson. “Offering simple handyman services could be legal on one side of a street and illegal on the other. But if an occupation is safe in one town, it does not suddenly become dangerous the next town over. We applaud the governor and legislature for eliminating this patchwork of local licenses.”

The banned local occupational licenses include, but are not limited to, handyman services; painting; flooring; cabinetry; interior remodeling; driveway or tennis court installation; decorative stone, tile, marble, granite, or terrazzo installation; plastering; stuccoing; caulking; canvas awning; and ornamental iron installation.

New Laws Will Give a Boost to Home-based Entrepreneurs

TALLAHASSEE, Fla.—Last night, Gov. Ron DeSantis signed a pair of bills that will make it easier for Floridians to earn a living from home. House Bill 663, named the “Home Sweet Home Act,” reforms rules on selling shelf-stable homemade foods, commonly known as cottage foods, and House Bill 403 standardizes rules for operating businesses inside of a home. The two bills were sent to the governor together after they were approved by the Florida Legislature.

“Today is a great day for Floridians who want to use their biggest asset to get started in business: their home,” said IJ Florida Office Managing Attorney Justin Pearson. “Half of all businesses are home-based, yet many of Florida’s city and county governments have created unnecessary red tape preventing Floridians from pursuing the American Dream. Entrepreneurs can now launch from home with confidence, whether they are baking cookies, selling hand-crafted goods, or simply working on their computer.”

House Bill 663 reforms cottage food regulations in four critical ways:

 

  • Allowing foods to be shipped to customers. Since sales are limited to shelf-stable foods, there is no risk in shipping them.
  • Clearing away local red tape. Rules would be standardized statewide, eliminating needlessly inconsistent and unnecessary rules such as what percentage of the home can be used or that only a kitchen can be used to prep and package food.
  • Allowing cottage food entrepreneurs to have business partners.
  • Raising the $50,000 cap on gross revenue to $250,000. The majority of U.S. states have no cap at all, since not being able to use commercial kitchens or any commercial equipment already limits production.

 

“The new law will modernize Florida’s cottage food laws, bringing them in line with many other states,” said Pearson. “And since 83% of cottage food entrepreneurs are women, it will help spark new women-owned businesses across the Sunshine State.”

House Bill 403 standardizes rules for operating businesses inside of a home. The bill bans city and county governments from regulating work that happens strictly inside a residence. Local restrictions on activities that affect the outside of a residence—including parking, noise or emissions—can still continue.

“Many Floridians have started home-based businesses during the past year, either out of necessity or because they felt the time was right,” said Pearson. “Now these entrepreneurs can focus on building their businesses, rather than worrying about whether their workspace took up too much room in their home.”

Supreme Court Rules Property Owners Have the Right to Legally Defend Their Property in Pipeline Takings

ARLINGTON, Va.—Today’s 5-4 U.S. Supreme Court decision in PennEast Pipeline Co., LLC, v. New Jersey is a quiet but vitally important victory for private property owners nationwide.

The federal government had urged the Supreme Court to use this case to announce a sweeping rule under which landowners defending against a condemnation for a natural-gas pipeline would not be permitted to raise any objections at all to the taking of their property. In other words, the government wanted to use a case where no private property owners were even before the Court to strip landowners across the country of their basic rights.

Thankfully, the Supreme Court today roundly rejected the government’s efforts, holding—as the Institute for Justice argued in its amicus brief in the case—that property owners are free to “assert[] a defense against the condemnation proceedings initiated” by private pipeline companies wielding the federal government’s power of eminent domain.

Bob McNamara, a senior attorney with the Institute for Justice, said, “The federal government’s arguments in this case were sweeping, dangerous, and wrong, and the federal government’s loss is a win for property rights everywhere.”

Entrepreneurship Advocates Call on Chicago City Council to Finally Reform Sign Approvals

CHICAGO—The Chicago City Council recently voted to strip sign permit reform out of a package of business reforms, disappointing small businesses and advocates calling for a straightforward and fair application process. Chicago, unlike any other major city in the United States, requires the entire City Council to vote on the permit for every sign that extends even one centimeter over public sidewalks. The City Council can indefinitely delay or reject a permit for any reason or simply for no reason at all.

“When we spread the word that the city was considering a change to streamline the sign permit process, small businesses reacted with overwhelming enthusiasm. It is a huge letdown to see that sign reform pulled at the last minute,” said IJ Clinic Director Beth Kregor. “Now more than ever, Chicago businesses need to let customers know that they are open for business. So many small businesses are operating on the edge of a knife and allowing them to put up their signs after following a straightforward process could make a difference in whether they survive. We hope that the City Council adopts reform at its next meeting.”

The Institute for Justice Clinic on Entrepreneurship at the University of Chicago (IJ Clinic) has advocated for reform for more than a decade. In a 2009 study, the IJ Clinic broke down the confusing and months-long process that sign applications go through. In spite of consistent pleas from advocates, chambers of commerce and small businesses, the process has not changed much since 2009. The reform that was excised from the Small Biz Strong initiative on Friday would still have allowed aldermen 30-60 days to weigh in on public way use permit applications, but it would have eliminated the step of the City Council vote.

Since individual aldermen are deeply involved in sign applications, the standards vary widely across wards and even within wards. And since enforcement of the sign code is inconsistent, illegal signs abound without penalty while business owners trying to follow the rules are trapped in a maze for months. In the City Council meeting Friday, some aldermen insisted they must cling to their power to withhold sign permits, while other aldermen stated passionately that they need to get out of the way of businesses.

“We tried for months to obtain a sign for our business!” said Sara McIntosh, founder of the Chicago School of Shoemaking. “After discovering how complicated and expensive the permit process is, we eventually gave up. Chicago businesses would greatly benefit from having a simpler process to obtain a sign or awning.”

Final Victory for North Dakota Cottage Food Producers

BISMARCK, N.D.— Cottage food producers across the state can now rest assured that they can sell their homemade foods—like pizzas, mac and cheese, and canned vegetables—exactly as the state Legislature had intended when it passed the Cottage Food Act. Last December, North Dakota Judge Cynthia M. Feland ruled that the North Dakota Department of Health broke the law when it passed regulations crippling the Cottage Food Act, which the Legislature had enacted in 2017. Although the North Dakota Department of Health initially filed an appeal of that ruling with the North Dakota Court of Appeals, they later withdrew that appeal. And as of today, following confirmation with the department, there are no more steps to take in the case and the court’s decision is final.

“Selling homemade foods is a great way for North Dakotans to support their families and their farms, and consumers love buying locally made food from their community,” said IJ Senior Attorney Erica Smith. “We are glad that the Department of Health finally gave up its multi-year campaign to deprive North Dakotans of the freedom to buy and sell locally made foods.”

The Cottage Food Act was passed by the North Dakota Legislature and signed into law by Gov. Doug Burgum in 2017. It allows North Dakotans to buy or sell nearly any homemade food or meal to informed consumers, except certain meats. But that changed when the Department of Health promulgated regulations that flatly contradicted the Act, by banning the sale of all homemade meals, almost all perishable foods, cut produce and many types of canned foods.

After the Department promulgated the regulations, five North Dakota homemade food producers throughout the state brought a lawsuit along the Institute for Justice (IJ), asking to court to declare the rules illegal because they contracted the Cottage Food Act. The Court agreed with them, and struck down the rules. As a result, the Cottage Food Act is back in effect, and cottage food producers can once again sell their homemade foods.

“I am excited this is done and over with. Especially this year, North Dakota is suffering one of the worst droughts it’s had in years. Farmers and ranchers are hit especially hard. Being able to sell extra goods from home is so helpful,” said plaintiff Summer Joy Peterson.

The other plaintiffs in the suit are Danielle Mickelson, Lydia Gessele, Lonnie Thompson and Naina Agarwal. They come from different parts of North Dakota and sell different foods—everything from soups and pizzas to vegetable stir fry mixes.

“I could not be more excited about what this win means for cottage food producers in North Dakota,” said plaintiff Danielle Mickelson of Rolla, North Dakota. “This is just the beginning for feeding our friends, our families and our communities. And as a state that’s what we’re all about.”

Family-Owned Hardware Store Asks Federal Court to Halt Eminent Domain

CENTRAL ISLIP, N.Y.—The family owners of a chain of Long Island hardware stores are asking a federal judge to immediately halt the town of Southold’s attempt to take their property through eminent domain. On May 4, the Brinkmann family filed a federal lawsuit seeking to protect their right to use the Southold property they own to open a new hardware store. Just one day after the Brinkmanns announced their suit, Southold quietly filed a lawsuit in state court to condemn the property. It was only weeks later that attorneys with the Institute for Justice (IJ) were informed about the filing and also discovered that the Brinkmanns had only days to prepare for a hearing that could result in the forced sale of their property.

IJ is asking U.S. District Judge LaShann DeArcy Hall to issue an order halting the state condemnation proceeding as the Brinkmanns’ federal lawsuit is considered. Without an order halting the eminent domain action, the Brinkmanns stand to lose their property before the federal court has an opportunity to consider whether Southold is violating the U.S. Constitution.

“When you follow the law, you should get to use your property to make an honest living,” said IJ Attorney Jeffrey Redfern. “The Brinkmanns should not lose their property before the court even has an opportunity to hear their constitutional claim. We hope that the court will recognize the damage that could be done if the property is condemned and stop the process while it considers the Brinkmanns’ lawsuit.”

After the Brinkmanns announced their lawsuit, Southold officials repeatedly declined to comment to the media. What officials were not telling reporters, or the residents of Southold, is that the town was moving forward with eminent domain. By withholding this information, the town almost certainly hoped to gain an advantage over the Brinkmann family and prevent a public outcry over the controversial maneuver.

“It’s outrageous that Southold quietly moved forward with eminent domain after we sued to protect our constitutional rights,” said Ben Brinkmann. “This shows that they know taking our property for a bogus park doesn’t have the full support of the community. Fortunately, we found out in time to try to stop their underhanded move.”

“The town’s claim that it needs to put a park on the Brinkmanns’ property is a sham. They just want to stop the Brinkmanns from opening their new store,” said IJ Managing Attorney Arif Panju. “If you follow the law, you should be allowed to open your business on the property that you own.”

U.S. Supreme Court Unanimously Rejects Dangerous “Misdemeanor Pursuit” Doctrine

ARLINGTON, Va.—The U.S. Supreme Court has unanimously rejected a sweeping rule that would have allowed police to enter people’s homes without a warrant just to pursue suspected misdemeanants. Today’s opinion in Lange v. California echoes points stressed in an amicus brief submitted by the Institute for Justice.

The case arose from a minor traffic offense. Late one night, a California police officer noticed Arthur Lange blaring loud music and honking his horn while driving (a misdemeanor) and started tailing him. Just before Lange turned into his driveway, the officer flashed his lights, but Lange did not notice and entered his garage (another misdemeanor). The officer parked behind Lange and entered the garage. Because the officer did not have a warrant, Lange challenged the entry under the Fourth Amendment.

The California Court of Appeal rejected Lange’s challenge, reasoning (as many other courts had) that an officer’s “hot pursuit” of a suspected misdemeanant—no matter how trivial or harmless—always justifies a warrantless home entry. More precisely, the court held that so-called misdemeanor pursuits always constitute “exigent circumstances,” which is one of the major exceptions to the Fourth Amendment’s warrant requirement.

As the Institute for Justice had urged in its brief, the unanimous Court held that “flight of a suspected misdemeanant does not always justify a warrantless entry into a home.” Instead, the Court explained, “officer[s] must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency,” like “imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home.”

“This decision was a victory for all Americans’ right to be secure in their homes,” said IJ Attorney Joshua Windham. “The Court rightly holds that if police want to burst into our homes—our castles—to pursue trivial offenses, the facts must show a true emergency. Otherwise, they need to get a warrant.”

“It’s encouraging to see the Court continuing to reject broad exceptions to the warrant requirement,” said IJ Senior Attorney Robert Frommer. “At the end of the day, the point of the Fourth Amendment isn’t to make life easier for police, but to make us secure in our persons and property. The Court’s decision honors that purpose.”

Federal Judge Slaps Down Government in Challenge to U.S. Private Vaults Seizures

LOS ANGELES—Late Tuesday, U.S. District Judge R. Gary Klausner granted a temporary restraining order that stops the government from using civil forfeiture to take the contents of safe deposit boxes seized in the FBI’s raid on Beverly Hills company U.S. Private Vaults. Jeni Pearsons and her husband Michael Storc, along with Joseph Ruiz and Travis May, teamed up with the Institute for Justice (IJ) to fight that unconstitutional seizure and the FBI’s attempt to take their cash and valuables forever.

In May, the FBI sent a 19-page forfeiture notice to the attorneys for U.S. Private Vaults, informing the company the FBI was seeking to forfeit the contents of hundreds of safe deposit boxes—including over $85 million in cash and millions more in precious metals, jewelry and other valuables. The FBI sent similar notice letters to many of the individual box holders.

Judge Klausner’s order finds those notices violated due process, explaining: “This notice, put bluntly, provides no factual basis for the seizure of Plaintiffs’ property whatsoever.”

“Hundreds of innocent people have had their lives turned upside down by the government’s $85 million cash grab,” said IJ Senior Attorney Robert Frommer. “This order squarely rejects the government’s ‘anemic notices’ as an unconstitutional attempt to take box holders’ property for no good reason.”

Civil forfeiture is a legal process that allows the government to permanently take property without charging anyone with a crime. Here, the government has indicted U.S. Private Vaults the company, alleging it violated federal law, but it has not charged (or even alleged) any crime by any of the individual box holders. But the FBI still moved forward to take almost 400 box holders’ property forever.

The order issued Tuesday halts the forfeiture process for the four box holders who are named as plaintiffs in IJ’s lawsuit. It prevents the government from forfeiting Jeni, Michael, Joseph and Travis’ property without first sending them “forfeiture notices that identify the specific factual and legal basis for the Government’s determination to commence civil forfeiture proceedings.”

“While the order formally applies just to our four clients, the reasoning of the order applies to every one of the hundreds of U.S. Private Vaults box holders in this situation,” said IJ Senior Attorney Rob Johnson. “If the government presses forward with these forfeitures now, it will be defying the court. We’re calling on the FBI and the U.S. Attorney to do the right thing, to follow the judge’s ruling, and to bring these sham forfeiture proceedings to a close.”

Vietnam Vet Assaulted by Fed. Police Asks Supreme Court to Reconsider His Fourth Amendment Lawsuit

ARLINGTON, Va.—In Texas, Louisiana and Mississippi federal police are now entitled to absolute immunity from individual accountability, even when they grossly violate someone’s constitutional rights. That’s because the 5th U.S. Circuit Court of Appeals recently ruled that even if federal police beat you for no reason and almost choke you to death—and even if you overcome the defense of qualified immunity at the trial court—federal police are still shielded from constitutional claims, leaving you without a remedy, and thus without a constitutional right.

José Oliva is a Vietnam veteran, who spent his entire career in law enforcement. In 2016, he was on his way to a dentist appointment at his local Veterans Affairs hospital in El Paso, Texas, when three VA police officers violently attacked him for placing his identification card inside a plastic bin, rather than directly handing it to them.

When prosecutors declined to bring charges, José filed a lawsuit against the federal officers to enforce his Fourth Amendment rights. He prevailed at the district court level, where the judge ruled that the officers were not entitled to qualified immunity since their behavior was clearly unconstitutional. But the 5th U.S. Circuit Court of Appeals reversed the district court, holding that—even if the officers were not entitled to qualified immunity—they were absolutely immune because the officers happened to work for the federal, rather than state, government. They could not be sued.

“This holding is clearly erroneous,” explained Anya Bidwell, an attorney with the Institute for Justice. “The constitution applies with the same rigor to federal police as it does to state police. But last month, the U.S. Supreme Court declined to grant José’s petition for certiorari and reverse the 5th Circuit’s ruling. As a result, more than 18,000 federal police in Texas, Louisiana and Mississippi are left without any judicial oversight for constitutional violations.”

What’s worse, this decision is already having a cancerous impact. It has spread to other circuit courts around the nation, giving judges an excuse to ignore gross violations of individual rights by federal government officials.

That’s why, in light of all the other decisions that are now providing absolute immunity to federal police, José is asking the Supreme Court to give his petition another look and consider granting it.

“This is a good opportunity for the Supreme Court to make it clear that federal police should be at least as accountable as their state and local counterparts,” said Patrick Jaicomo, an attorney with the Institute for Justice. “If the Court doesn’t weigh in now, the problem will only get worse. Federal authority will mean absolute immunity not only in the 5th Circuit, but across the entire country.”

In a recent decision, the 5th Circuit cited José’s case to shield a Department of Homeland Security officer from accountability after he held a man at gunpoint and had him arrested because the man was asking questions about the involvement of the agent’s son in an apparently drunken car crash. Judge Don Willett observed that now federal police “operate in something resembling a Constitution-free zone” and lamented that under the current state of the law, “[p]rivate citizens who are brutalized—even killed—by rogue federal agents can find little solace” in American courts.

“Judge Willett’s observation should put the Supreme Court on notice that it must restore accountability to our system,” said Institute for Justice Attorney Alexa Gervasi. “Federal officers swear an oath to uphold the constitution, and the courts must hold them to it.”

The need for the Court’s attention to José’s case and the others that follow is underscored by the fact that the federal legislation introduced to address police accountability—the George Floyd Justice in Policing Act and the Ending Qualified Immunity Act—inexplicably excludes federal police. Although more than 100,000 federal officers patrol the United States, they have somehow avoided the scrutiny placed on state and local officers.

“Just because these officers are working for the federal—rather than state—government does not mean that the constitution applies to them any less,” Bidwell said.

Institute for Justice President and General Counsel Scott Bullock added: “Our federal constitution restricts the actions of all government officials. But it is especially troubling that courts have exempted federal officials from its restrictions. It is time for the Supreme Court to make it clear once and for all that a federal badge is not a shield against the constitution.”

Wisconsin Home Bakers Score Win in Court; Judge Rejects State’s Attempt to Dismiss Case

DARLINGTON, Wis.—Today, Judge Rhonda L. Lanford, presiding over Lafayette County Circuit Court, denied a request from the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) to dismiss a lawsuit brought by seven Wisconsinites and the Wisconsin Cottage Food Association with the Institute for Justice (IJ) challenging the state’s ban on homemade shelf-stable foods. In 2017, a legal challenge from homemade or “cottage” food producers led a Wisconsin court to declare the state’s ban on home-baked good sales unconstitutional. But Wisconsin continues to ban the sale of most homemade foods, like chocolates, candies, granola and roasted coffee beans. The lawsuit aiming to change that, launched in February, will now proceed to be ruled on the merits.

“Today’s ruling is an important win for Wisconsinites who simply want to support their families by selling shelf-stable goods to their friends and neighbors, just as people in nearly every other state can,” said IJ Attorney Suranjan Sen. “Wisconsin’s ban on the sale of homemade foods baselessly prevents people from earning an honest living, and therefore violates the Wisconsin Constitution.”

Dela Ends, a plaintiff in the prior baked-goods lawsuit, has joined the new lawsuit so she can sell shelf-stable dried foods like soup mixes, tea mixes and dehydrated vegetables to supplement her income. The economic devastation of the COVID-19 pandemic has left many farmers reeling, and any additional source of revenue for home-based food producers could be helpful to Wisconsin families. Dela said that a victory in the lawsuit could help her bed-and-breakfast business, and it would allow her to cook more than breakfast.

“I think it’s really exciting that we can proceed with the hope of adding more products for home entrepreneurs,” Dela said. “Since the first lawsuit, I’ve seen how much good it’s done. It’s so exciting to think where winning this lawsuit could take bakers and food entrepreneurs.”

Alongside the lawsuit challenging the ban on shelf-stable cottage foods, Wisconsin home bakers who won the fight to legalize home-baked good sales in the state in 2017 challenged DATCP’s ban of flourless home-baked goods as violating that court order. On May 20, Lafayette County Circuit Court Judge Duane M. Jorgenson ruled that DATCP had not been following that order. Now, Wisconsinites are free to sell any and all shelf-stable, home-baked goods to their neighbors. Should the new lawsuit be successful, they’ll be able to sell all homemade shelf-stable goods, regardless of the preparation method.

Because of today’s ruling, the home-based food producers will be able to proceed with their case through the discovery process. By this time next year, IJ hopes that all Wisconsinites will be allowed to sell their homemade, shelf-stable foods to any willing consumer.

 

 

 

More U.S. Private Vault Renters Step Forward to Fight the FBI’s Efforts to Steal Over $85 Million Using Civil Forfeiture

LOS ANGELES—Using civil forfeiture, the U.S. Department of Justice is seeking to permanently take the contents of hundreds of safe deposit boxes, including over $85 million in cash and precious metals, jewelry and other valuables worth millions more. But the boxes’ owners have not been accused of any crime and have not been told what the government thinks they did wrong. Now, several of those owners are joining an existing Institute for Justice (IJ) class action lawsuit to stop the government’s forfeiture plans in their tracks.

“This is an $85 million cash grab by the federal government,” said IJ Senior Attorney Robert Frommer. “The government has no basis to think any of these people have done anything wrong. It just wants to keep their stuff. That’s unlawful and unconstitutional.”

Jeni Pearsons is the Director of Operations for a distinguished nonprofit in Los Angeles. Jeni and her husband Michael Storc rented a box to store silver they bought as a nest egg for retirement. Now, the government is trying to use civil forfeiture to permanently take Jeni and Michael’s silver despite not telling either of them what specifically they did to deserve such punishment.

“We’ve seen the value of silver increase over the years, so we thought we could purchase silver as an investment for retirement,” said Jeni. “After the FBI raid, we just assumed we would get our property back, and when we contacted the FBI they told us we just had to wait. But now we’re told the government wants to take our property forever. And why? It’s surreal.”

Jeni and Michael’s surreal experience is, unfortunately, now all too common. Civil forfeiture is a legal process that allows the government to permanently take property without charging anyone with a crime. Here, the government has alleged that the company U.S. Private Vaults was violating federal law, but has not charged any individual box holder with any offense. The government has mailed out forfeiture notices to box holders—informing them of the attempted forfeiture of their property—but those notices do not provide any explanation for the government’s decision to begin forfeiture.

“Civil forfeiture takes the presumption of innocence and turns it on its head, forcing people to prove their own innocence to keep their property,” said IJ Senior Attorney Rob Johnson. “And in this case property owners don’t even know what crime they supposedly committed. They have to prove their innocence—but innocence of what? All they’re accused of is keeping valuables in a box.”

Travis May is the CEO of TollFreeForwarding.com and a trustee at Reason Foundation, a libertarian think tank which publishes reason.com. Because he lives alone, travels frequently, and cash is not allowed in his Chase bank deposit box, he used his box at U.S. Private Vaults to store $100,000 in gold and $63,000 in cash outside his home.

“This is wrong and it’s unconstitutional. The agents involved lied to a judge and violated their oath to uphold the constitution, while lining their own agencies’ pockets. The government is treating everyone who rented a box like they are a criminal as an excuse to take a fortune in cash and precious metals,” said Travis “Civil forfeiture is an abomination; this is a clear demonstration of the perverse motive it creates. Congress should investigate this travesty of justice committed by these once-respected agencies, and finally end civil forfeiture.”

Some individual box holders who did not have cash or precious metals in their boxes have been able to recover their property in recent weeks. Yet the process to get this property back is traumatic and time-consuming. Paul and Jennifer Snitko used their box to store possessions valuable mainly to them: Paul’s father’s will, backup hard drives, old family watches and Paul’s flight log. Late last week, the Snitkos’ property was returned to them at the FBI’s Los Angeles headquarters. While their property is now returned, the Snitkos remain plaintiffs in the class action lawsuit.

“It’s absurd that it took months and a class action lawsuit to get back our property,” said Paul Snitko. “Seeing that our personal belongings and private documents had been rifled through and put into evidence bags as part of a federal criminal investigation was emotionally difficult. The FBI did not have permission or need to open our box, and holding onto our property for so long was a grotesque violation of our constitutional rights.”

Victory for Tyson Timbs: Indiana Man Keeps Car After Eight-Year Legal Battle

Arlington, Va.—Indiana man Tyson Timbs’s fight against civil forfeiture made national news in February 2019, when the U.S. Supreme Court ruled that the Eighth Amendment’s Excessive Fines Clause applies not just to the federal government, but to the states as well. That decision established a rule of law for Americans nationwide. But it didn’t get Tyson his car back. The U.S. Supreme Court sent his case back to the Indiana Supreme Court. That court, in turn, sent the case back to the trial court, with instructions to decide anew whether taking Tyson’s vehicle was unconstitutionally excessive. The trial court ruled for Tyson last April. The State appealed yet again—bringing Tyson’s case before the Indiana Supreme Court for a third time. And this morning a majority of the Indiana Supreme Court ruled unequivocally in Tyson’s favor.

“Reminiscent of Captain Ahab’s chase of the white whale Moby Dick,” the court observed, “this case has wound its way from the trial court all the way to the United States Supreme Court and back again.” And after eight years of litigation, the court held that “Timbs met his high burden to show that the harshness of his Land Rover’s forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle’s misuse.” The forfeiture violates the Excessive Fines Clause, the court concluded.

READ THE COURT’S OPINION

“For years, this case has been important not just for me, but for thousands of people who are caught up in forfeiture lawsuits,” said Tyson. “The State’s refusal to give back my car has never made sense; if they’re trying to rehabilitate me and help me help myself, why do you want to make things harder by taking away the vehicle I need to meet with my probation officer or go to a drug recovery program or go to work? I hope that, finally, the government will move on and let me move on too.”

“Today’s ruling is an important victory for property rights across Indiana,” said Sam Gedge, an Institute for Justice (IJ) attorney who represents Tyson. “As the Indiana Supreme Court correctly recognized, Indiana’s campaign to take Tyson’s car is just the sort of abusive forfeiture that the Excessive Fines Clause is designed to curtail. The State of Indiana has spent nearly a decade trying to confiscate a vehicle from a low-income recovering addict. No one should have to spend eight years fighting the government just to get back their car.”

Tyson’s legal odyssey began shortly after his father died, leaving him more than $70,000 in life-insurance proceeds. In January 2013, Tyson used some of the money to buy a new Land Rover LR2. Four months later, however, his car was seized when he sold four grams of heroin to undercover officers. Tyson pleaded guilty to drug dealing, served one year on house arrest and paid $1,200 in court fees. Most importantly, his arrest led him to get his life back on track.

But the state of Indiana was more interested in Tyson’s car. Within months of Tyson’s arrest, private contingency-fee lawyers filed a “civil forfeiture” lawsuit on behalf of the state to take title to his $35,000 Land Rover. The government has been prosecuting the case ever since. “[T]he seven-plus-year pursuit for the white Land Rover comes to an end,” the Indiana Supreme Court’s opinion concluded today.

“Today’s ruling brings to a close Indiana’s crusade to confiscate one man’s car,” said Wesley Hottot, an IJ senior attorney who argued on Tyson’s behalf at the U.S. Supreme Court. “Tyson’s case went through every level of the American judicial system—in some instances, three times. The State’s relentless use of its forfeiture machine has been a deeply unjust exercise of power, and it underscores that civil forfeiture is one of the greatest threats to property rights in the nation today.”

New Report: DC Must Cut Red Tape for Local Businesses to Pave the Path to Recovery

WASHINGTON—Yesterday, Ward 2 Councilmember Brooke Pinto introduced the Business and Entrepreneurship Support to Thrive (BEST) Amendment Act of 2021, to streamline the licensing process for new and existing businesses. Today, a new report by the Institute for Justice (IJ) underscores the vital need to pass this reform—especially as so many recover from the personal and financial burdens of the pandemic.  

The report, Blueprint for Business: Cutting Red Tape and Supporting DC Entrepreneurs, reveals the cost, time and stress of getting a business up and running in DC. The report, which was based on a detailed analysis of DC’s code and regulations as well as conversations with dozens of business owners, calls on District officials to make it cheaper, faster and simpler to start and grow a business. It tells stories from local entrepreneurs impacted by DC’s regulatory labyrinth, analyzes best practices from other cities, and most importantly lays out a reform agenda for the city.  

Blueprint for Business recommends that government officials address three critical areas of reform:  

  • Streamline the licensing process by cutting the number of license categories in the DC Code and continue removing outdated forms and steps.  
  • Lower licensing, registration, and permitting fees to open opportunities for aspiring business owners of modest means. 
  • Improve communication and transparency between agencies and entrepreneurs and create a true one-stop shop for starting a business in the District.  

“This report provides a roadmap for reforms, and Councilmember Pinto’s new legislation can make those reforms a reality for Washingtonians trying to earn a living for themselves and for their families by doing what they love,” said study co-author Brooke Fallon, associate director of activism at the Institute for Justice.  

This legislation would address the issues outlined in IJ’s report and provide a clear and affordable path to business licensing by:  

  • Simplifying the licensing process by reducing the number of license categories from 100+ to 10 by combining categories with similar requirements. 
  • Lowering fees for new and small businesses by creating an exemption from fees for businesses with under $20,000 in annual revenue, lowering license fees to $99 for two years (or $49 for six months), and creating a progressive fee structure based on annual revenue for renewals.  
  • Creating a clear, consistent path to business licensing by removing outdated and duplicative requirements. 
  • Allowing DCRA flexibility to implement policies and procedures as necessary to serve DC’s business community. 
  • Streamlining the law by reorganizing the sections of the code covering basic business licensing to make it easier for DC residents trying to understand the rules. 

 “Our team spent the last three years combing through DC’s business regulations and licensing records, talking to entrepreneurs around the District, and meeting with government officials. We’re thrilled to see Mayor Bowser, the Department of Consumer Affairs (DCRA), and DC Council taking this issue so seriously and proposing reforms like the BEST Act and licensing fee reductions proposed in this year’s budget to simplify business licensing and lower fees. We hope this report can highlight the urgent need to pass these proposals,” said Fallon 

Blueprint for Business shows that Mayor Bowser and DC Council can continue to make progress together to scale back unnecessary paperwork and remove unfair burdens that trip up entrepreneurs. They can create a blueprint for DC to not just recover, but also to become a better place to work and do business than ever before. 

The report is authored by the Institute for Justice, a nonprofit law firm that works with entrepreneurs across the country to make it easier to earn an honest living. IJ helps small and local businesses fight back in the courts of law and public opinion against unfair regulatory barriers to starting a business.  

To download a one-pager on the report, click here. Reporters interested in learning more about the findings in the report are encouraged to contact IJ Communications Project Manager Conor Beck at cbeck@ij.org to set up an interview with an expert behind the report.

North Carolina Board Tells Retired Engineer He Can’t Talk About Engineering

WILMINGTON, N.C.—Wayne Nutt is an engineer. He graduated with a degree in engineering and worked most of his career in North Carolina without ever needing a license to actually work as an engineer. But now, the North Carolina Board of Examiners for Engineers and Surveyors is telling Wayne that speaking publicly about engineering without a state license could lead to criminal charges. Today, Wayne teamed up with the Institute for Justice (IJ) to file a federal lawsuit to protect his First Amendment right to speak from his expertise and experience.

“The First Amendment protects our right to hear useful speech on complex topics,” said IJ Senior Attorney Robert McNamara. “Talking about engineering is just that—talking—and the government has no business forbidding Wayne or anyone else from talking about their own knowledge and experience.”

Wayne may be retired, but he is an engineer at heart and speaks up when he sees people make what he believes to be engineering mistakes. He has written letters to state and county governments and testified before a county commission. But Wayne’s troubles began when he when he agreed to help his son, Kyle, a North Carolina attorney, with a case about a piping system that allegedly flooded a few local homes.

In his deposition, Wayne testified truthfully that he was not (and never had been) a licensed engineer. In fact, like the majority of engineers nationwide, Wayne was not required to get a license since he worked for a company under the state’s “industrial exception.” Instead of saying Wayne’s testimony was wrong, the defendants said it was illegal—because Wayne did not have a license to express these opinions. Astoundingly, the Board seems to agree. In May, it sent a certified letter to Wayne’s home stating that they were investigating him. In North Carolina, practicing without a license can result in criminal misdemeanor charges.

“It’s absurd that I spent decades practicing as an engineer but now can’t speak about engineering without a state license,” said Wayne. “Just as any other American, I have a right to speak out when I see something that is wrong. The Board should not be able to silence me, or anyone else, when stating an opinion. And, in my case, an opinion I can back up with my knowledge of engineering and my years of experience.”

Wayne is not the only North Carolinian to be subject to the Board’s expansive definition of what requires a license. Earlier this year, Michael Jones, a Goldsboro photographer, sued the same board after it threatened him for selling photographs and maps he made using his drone. Just like Wayne’s opinions (which were not being used to submit engineering plans to the state), Michael’s photos were simply informational.

The lawsuit filed today makes a straightforward legal argument: That talking about engineering is speech and the government cannot make it illegal to speak on certain topics without a license. By some estimates, 80% of engineers nationwide work legally without a license. By the Board’s interpretation, most engineers in North Carolina could not legally comment publicly on engineering.

“In this country, we rely on people to decide who they want to listen to rather than relying on the government to decide who gets to speak,” said IJ Attorney Joe Gay. “North Carolina’s engineering board is getting that important principle exactly backwards.”

The Institute for Justice defends First Amendment rights nationwide. IJ successfully defended an Oregon engineer charged by his state’s board with unlicensed practice for commenting on the timing of traffic lights. That engineer’s recommendations were adopted by the Institute of Transportation Engineers in 2020. Also in 2020, IJ won a federal lawsuit on behalf of a Mississippi mapping company that was charged by the state’s surveying board with unlicensed practice. IJ also recently won appeals court decisions in free speech cases on behalf of a veterinarian in Texas and tour guides in Charleston, South Carolina.

“Occupational licensing boards are the new censors in America, and they wield their power aggressively,” said IJ President and General Counsel Scott Bullock. “As occupational-licensing laws take up more and more space in the American economy, it is more important than ever that courts be vigilant to prevent them from taking over the First Amendment as well.”

 


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Kentucky Families Fight to Defend the State’s Bold New School Choice Program 

FRANKFORT, Ky.—Today, the Institute for Justice (IJ)  moved to intervene on behalf of Florence, Kentucky, parent Akia McNeary and Newport, Kentucky, great-grandparent Nancy Deaton to defend Kentucky’s bold new school choice program, the Education Opportunity Account (EOA) Program, from a lawsuit filed Monday. IJ is the nation’s leading advocate for school choice, having won 24 school choice litigation fights, including three at the U.S. Supreme Court, the most recent of which was the landmark decision Espinoza v. Montana Department of Revenue in 2020.

The Council for Better Education (CBE), a group representing Kentucky public school districts, filed the lawsuit late Monday following the Kentucky General Assembly’s override of Gov. Andy Beshear’s veto on March 29. The lawsuit ignores the fact that the EOA Program is funded by private donations, not public dollars; that it funds families, rather than schools; and that the General Assembly has the constitutional power to provide for greater educational opportunity for Kentucky’s schoolchildren. The lawsuit’s arguments echo arguments made in many other unsuccessful legal challenges to school choice programs throughout the country. IJ anticipates that the success of the EOA Program will generate calls for its expansion throughout Kentucky.

“Kentucky’s Education Opportunity Account Program is constitutional and will empower families to choose the best education for their child,” IJ Senior Attorney Michael Bindas said. “The lawsuit challenging the program is nothing more than an attempt by the education establishment to deny greater alternatives and opportunity to Kentucky children.”

Akia McNeary, whom IJ will represent in its defense of EOAs in Kentucky, plans to use an EOA toward her children’s education next year. She’s seen firsthand how her fifth-grade son has thrived in private school after falling behind at his local public school. So she would like to use an EOA toward his private-school tuition and to pay for her daughter’s tuition at the same school when she starts kindergarten next fall.

Until this year, Kentucky was among a minority of states without an educational choice program. But with the EOA Program, Kentucky has one of the strongest educational choice programs in the country. Families earning up to 175% of the U.S. Department of Agriculture’s reduced-price lunch threshold are eligible for funding from the program, which will come from voluntary donor contributions rather than public funds.

“All schools don’t fit for all children,” said Akia McNeary. “Some need smaller classroom settings. It’s not a one-size-fits-all for every child.”

Under the EOA Program, Kentucky parents can spend their EOA funds to best fit their children’s needs, including for private school tuition, tutoring services, online programs and more.

“States have the constitutional authority to offer alternatives to the public-school system,” said IJ Attorney Milad Emam. “That’s what Kentucky did: It provided for alternatives for families in need. We look forward to vigorously defending Kentucky’s EOA program in Court.”

The Institute for Justice, the nation’s leading legal advocate for educational choice, is currently defending choice programs in Nevada, Tennessee and North Carolina and is challenging the exclusion of religious schools from Maine’s, New Hampshire’s and Vermont’s town tuitioning programs. IJ has won three times at the U.S. Supreme Court for educational choice on behalf of parents in defense of Cleveland, Ohio’s, Arizona’s and Montana’s educational choice programs.

Maine School Choice Case Appealed to Supreme Court Now Fully Briefed

Arlington, Virginia—With briefing now complete, the justices of the U.S. Supreme Court will conference on June 24 to consider whether to grant review in Carson v. Makin, a school choice case arising out of Maine. The Institute for Justice (“IJ”) is asking this nation’s highest court to resolve a question with nationwide implications for parents and children: Does it violate the Constitution when states exclude families from generally available student-aid programs simply because they send their children to schools that provide religious instruction?

In October 2020, the 1st U.S. Circuit Court of Appeals upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, students who live in towns that do not maintain a public school may use program funds to attend the school of their parents’ choice, whether public or private, in-state or out-of-state—but only if it does not teach religion.

“The central question here remains whether parents will be able to select the best schools to meet their children’s needs—including religious schools that reinforce the values and beliefs so many of these parents seek to instill in their homes,” said Institute for Justice Senior Attorney Michael Bindas. “The Constitution requires government neutrality toward religion, not hostility. Maine’s exclusion of religious options violates that constitutional command of neutrality.”

Maine’s program was open to religious schools for a century.  Maine changed policy after an opinion by the state’s attorney general without any clear direction from courts or public demands for such actions.

In February 2021, the Institute for Justice petitioned the U.S. Supreme Court for review of the 1st Circuit decision upholding Maine’s religious exclusion.  As it noted in its reply brief  filed with the Court last week, Maine’s law discriminates against parents based on religion by providing some families with tuition support for the school of their choice but denying that support to other families—those who desire a religious education for their children.

Just this past week, the 2nd U.S. Circuit Court of Appeals held unconstitutional a similar ban in Vermont’s tuitioning program, which had barred parents in that state from being reimbursed for tuition at religious schools. On Monday, the Institute for Justice filed a supplemental brief with the Supreme Court informing it of this significant new ruling.

“Maine flatly bans parents from choosing schools that offer religious instruction, and that is unconstitutional,” said Bindas. “In student-aid programs like Maine’s, it is parents—not the government—who choose the schools their children will attend.  If parents believe a religious education is the best option for their child, the government should not be allowed to deny them that choice.”

The Institute for Justice filed the challenge to Maine’s religious exclusion on behalf of parents Amy and David Carson, along with Troy and Angela Nelson. Their children qualified for Maine’s tuitioning program in all other respects, but they were barred from choosing the schools their parents thought best for them, simply because those school provided religious instruction. A collection of eleven amicus (or “friend of the court”) briefs were filed asking the U.S. Supreme Court to grant review of the 1st Circuit’s decision upholding the exclusion, including by a coalition of 18 states, a broad coalition of religious schools, innovative private schools, and others.

Notably, the Supreme Court called for a response from the state of Maine, asking it to explain why the Court should not review the 1st Circuit’s erroneous decision. In its response, Maine acknowledges that this case squarely presents the “religious use”-based discrimination issue that the Supreme Court flagged but declined to resolve in Espinoza v. Montana. In that 2020 case, the Institute for Justice earned a landmark victory in which the High Court held that states, in operating school choice programs, cannot bar families from choosing schools simply because the schools are religiously affiliated. The Court held that such discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.

According to the court of appeals decision upholding Maine’s exclusion, although Espinoza prohibits states from excluding schools based on religious “status,” Maine can continue excluding religious schools based on religious “use”—i.e., on whether those religious schools also do religious things.

“Maine is discriminating against students that pick religious schools and the High Court should grant review and put an end to such exclusions nationwide,” said IJ Managing Attorney Arif Panju. “By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution.”

(For a full discussion of this U.S. Supreme Court appeal with IJ Senior Attorney Michael Bindas and IJ Maine school choice client Amy Carson, click here: https://www.youtube.com/watch?v=TeMoGkTibdU)

Scott Bullock, the president and general counsel of the Institute for Justice said, “Educational choice programs fund individuals—not institutions—based on free, independent choice. Families should have the broadest range of options—whether they are public, private secular, or private religious schools—in making decisions on where and how children are educated.”

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For more information on this case, visit https://ij.org/case/maine-school-choice-3/ or contact John E. Kramer, vice president for communications at jkramer@ij.org or call (703) 682-9323 ext. 205.

Illinois Legislature Sends Right to Garden Bill to Governor

The Illinois Senate on Thursday overwhelmingly approved the Illinois Vegetable Garden Protection Act (HB 633), a bill that would preserve and protect the right of all Illinoisans to “cultivate vegetable gardens on their own property.” Introduced by Rep. Sonya Harper, the Act would protect the right to grow vegetables, as well as “herbs, fruits, flowers, pollinator plants, leafy greens, or other edible plants.”

HB 633 now heads to Gov. J.B. Pritzker, who has 60 days to act on the bill. For many Illinoisans, reform has been a long-time coming, as similar measures have come close to passage in prior sessions.

“I just want to grow my own food on my own property. In America, that really shouldn’t be such a controversial idea, and it certainly shouldn’t be illegal,” said Nicole Virgil, an Elmhurst resident whose efforts to grow vegetables in her rear yard have been repeatedly stymied by local officials. “I want to teach my kids the importance of self-sufficiency and self-reliance. I want them to understand and appreciate where food comes from.”

If passed, Illinois would become a national leader in the local food movement, becoming just the second state to provide express protection for the right to grow one’s own food. In 2019, Florida enacted the nation’s first statewide Vegetable Garden Protection Act, which sprouted from a years-long legal battle the Institute for Justice fought on behalf of a Miami Shores couple that was forced to uproot their 17-year old vegetable garden, after the city banned vegetable gardens in front yards. The Florida and Illinois legislative reforms are part of IJ’s National Food Freedom Initiative, which promotes the ability of individuals to produce, procure and consume the foods of their choice.

“This bill strips local governments of the power to impose HOA-style prohibitions on an act of self-sufficiency in which humans have been engaged for thousands of years,” said IJ Attorney Ari Bargil. “Over a year ago, as fears of the Covid-19 pandemic took hold nationwide, many Americans developed grave concerns about the weaknesses in our nation’s food-supply chain as grocery stores rationed purchases and shelves grew depleted. As the past year has shown, the ability to grow food is not just a right—for many, it is a necessity. Passing this bill is an important step in the march for food freedom for all Americans.”

FBI Offers to Return Property to Some Security Deposit Box Owners… Maybe Sometime in the Next Few Weeks

LOS ANGELES—Just after publicly announcing that they had teamed up with the Institute for Justice (IJ) to file a federal class action lawsuit protesting the warrantless seizure of the security deposit box they rented from U.S. Private Vaults, Paul and Jennifer Snitko got a voicemail from the FBI.

In the voicemail, an agent informed them that “you will be receiving your items back.” However, the voicemail went on to say that “the timeline for a secondary phone call to assist you with getting those very items back will take about two to three weeks from now.”

At this time, the FBI has not offered to return the money and possessions of IJ clients Joseph Ruiz or Tyler Gothier, also named plaintiffs in the suit filed yesterday.

“The FBI seized this property over two months ago. And under the seizure warrant, the only thing the FBI was supposed to do with this property was return it to its rightful owners. That should have happened months ago,” said IJ Senior Attorney Rob Johnson. “For the FBI to say the Snitkos need to wait three more weeks just to get another phone call would be laughable if this weren’t such a serious matter. The FBI violates the Constitution every day it continues this illegal dragnet seizure.”

“It’s astounding that it took a federal lawsuit and a public press conference for the FBI to recognize that our property should be returned to us,” said Paul Snitko. “That it will take weeks just to get further instructions is mystifying and frustrating. Even when our property is returned, we intend to fight on to ensure that others get their property back and that the government never does this to anyone else.”

The IJ lawsuit alleges that the government’s seizure of hundreds of individual security deposit boxes violates the Fourth and Fifth Amendment rights of the named plaintiffs and all others who rented boxes. The FBI’s warrant for the raid expressly said that it “does not authorize a criminal search or seizure of the contents of the safety deposit boxes”–only U.S. Private Vaults’ own business property. And the government promised in applying for the warrant that it just wanted to “notify the lawful owners of the property stored in the boxes how to claim their property.” Yet, months after the seizure, the FBI is slow-walking that return in order to conduct an unauthorized criminal investigation into the box holders.

The government’s games have especially hurt Joseph Ruiz. An accident severely injured Joseph’s back, and he relied on the money that he kept in his security box to buy food and get physical therapy. But the government has now held Joseph’s money for over two months, and it told attorneys for U.S. Private Vaults—the company—that it intends to forfeit the contents of Joseph’s box along with the contents of over four hundred other boxes.

But the government has not told Joseph about its plans, leaving Joseph in the dark and without any way to fight the forfeiture. Cut off from his life savings, Joseph is surviving by eating canned foods that he stockpiled at the beginning of the pandemic.

Joseph spoke yesterday at the press conference saying, “My health has been deteriorating, I’m in a lot of pain standing here. I would like to have my money back.”

Security Deposit Box Owners Step Forward to Demand FBI Return Property Seized Without a Warrant

LOS ANGELES—This morning, the Institute for Justice (IJ), a national public-interest law firm, filed suit in federal court demanding that the FBI return items it seized from hundreds of people in a March raid of a Beverly Hills security deposit box company. While previous suits have been filed on behalf of anonymous plaintiffs, this is the first case in which named plaintiffs are stepping forward to get back their prized possessions since being seized from boxes rented from U.S. Private Vaults over two months ago.

The FBI’s warrant for the raid did not include permission to do a criminal seizure or search of the contents of the rented boxes – only U.S. Private Vaults’ own business property. The government promised it would only look into the boxes to identify ownership, but it immediately broke its word. Once in the location, agents opened hundreds of boxes, ran any currency in front of drug sniffing dogs, and made copies of records in peoples’ boxes.

Now the government is forcing people to submit to an investigation to show they owned their property legally before it is returned. The lawsuit, filed in U.S. District Court for the Central District of California, alleges that the government’s shocking behavior violates the Fourth and Fifth Amendment rights of Jennifer and Paul Snitko, Joseph Ruiz, Tyler Gothier and all others who rented boxes at U.S. Private Vaults.

“The government’s dragnet search of innocent peoples’ private security boxes is the most outrageous Fourth Amendment abuse that the Institute for Justice has ever seen,” said IJ Senior Attorney Robert Frommer. “It is like the government breaking into every apartment in a building because the landlord was dealing drugs in the lobby.”

Jennifer and Paul Snitko never thought they would need to worry about the federal government seizing the items they placed in the box they rented from U.S. Private Vaults. They stored possessions valuable mainly to them: Paul’s father’s will, backup hard drives, old family watches and Paul’s flight log. The Snitkos filed a claim form with the FBI, but when they asked an agent what the process was to get their property returned, the agent replied that she did not know. And when they asked when they would get their property back, the agent conveyed that there wasn’t any time frame.

“That the federal government broke open our safety deposit box was shocking and that we have no idea when we will get our property back is infuriating,” said Paul. “When you’ve done nothing wrong, you shouldn’t be subjected to an investigation. We’re fighting for our property and for the principle because no one else should have to go through this nightmare.”

That the Snitkos and other box holders had their property seized at all is a clear constitutional violation. The Fourth Amendment protects Americans from unreasonable search and seizure. The warrant issued for U.S. Private Vaults limited the FBI to taking the “nests of safety deposit boxes and keys,” not individual boxes. Federal prosecutors promised the court that when it seized the nest, it would only “inspect the property as necessary to identify the owner” and that its inventory search would “extend no further than necessary to determine ownership.”

The Snitkos placed a letter on the top of their box containing instructions on how to contact them or their legal representative. Instead of reaching out to the Snitkos and asking them to claim their locked box, the FBI opened it and recorded its contents. Now, the federal government is holding onto everyone’s property without charging them with a crime or giving them a prompt way to get that property back, a violation of Fifth Amendment rights to due process.

“Privacy and property are essential rights of all Americans,” said IJ Senior Attorney Rob Johnson. “The government treats box holders as somehow suspicious just because they held their property in a private and secure facility. But privacy is a constitutional right, not a ground for suspicion. If the government can get away with this here, we all will be at risk of similar intrusion in our own private space.”

The Institute for Justice is the nation’s leading advocate for property rights, defending property owners from unconstitutional searches, seizures, abusive fines and civil forfeiture. IJ is defending renters from warrantless home inspections in inspections in Illinois, Washington State and Pennsylvania. And in New York, IJ is challenging the NYPD’s practice of making property owners waive their right to be free from unconstitutional searches.

Landlord and Tenants Sue Over Orange City, Iowa’s Unconstitutional Home Inspections

Orange City, Iowa—A foundation of the U.S. and Iowa Constitutions is that your home is sacred. Nobody should be forced to let a stranger into their home for no good reason, and, according to both constitutions, you cannot be. But that has not stopped Orange City from trying to. This February, amid a spike in COVID-19 cases, Orange City sent letters to property owners demanding that they register their rental properties for government officials to search. Orange City’s ordinance permits the city to search tenants’ homes without their consent. A coalition of tenants and landlords objected to these inspections in April, stating their constitutional rights were being violated. Orange City defiantly pressed forward in May, ignoring their objections. That led the coalition to file a lawsuit Wednesday, alongside the Institute for Justice (IJ), constitutionally challenging the city’s rental inspections, which are carried out under so-called “administrative warrants.”

“An administrative warrant is not the same as a traditional search warrant—the government doesn’t need to suspect you of any wrongdoing to get an administrative warrant and enter your home without your permission,” said IJ Attorney Rob Peccola. “The home can contain the most private information about a person or family, including their religious, political and medical information. Iowans do not want government officials going through their homes for no good reason.”

One of those Iowans is Erika Nordyke, who lives with her fiancé Bryan Singer. Erika works at Hope Haven, a facility in Orange City that helps disabled individuals become more independent and fulfilled. Erika said she does not feel safe or comfortable letting a stranger into her house, particularly when she is alone.

“I don’t feel comfortable with a stranger coming inside my house and seeing our lifestyle,” said Erika. “I might not have my fiancé here. It’s kind of a scary situation letting a stranger inside.”

Forced rental inspections are spreading like wildfire in Iowa. State law requires that cities with populations of 15,000 or more adopt a “program for regular rental inspections.” Orange City has a population of just over 6,000 but nevertheless passed a rental registration and inspection law in February 2021.

The lawsuit alleges that Orange City’s rental inspection program violates Article I, Section 8 of the Iowa Constitution, which guarantees the right to keep the government from unreasonably intruding upon private property. More broadly, the lawsuit asserts that the Iowa Constitution provides greater search and seizure protections than the federal Constitution as it has been interpreted by the U.S. Supreme Court, which narrowly carved out an exception in the 1967 case Camara v. Municipal Court.

“The Iowa Constitution is clear: If the government wants to enter your home, it should only be able to get a warrant if it provides real evidence that something is wrong inside,” said IJ Attorney John Wrench. “Orange City can’t use an administrative warrant to force its way into Iowans’ homes without even suspicion that anything is wrong.”

Erika’s landlord, Josh Dykstra, was stunned that these inspections would ever be considered by the city.

“It’s unconstitutional for the government to search through your property without a reason,” Josh said. “A cop cannot enter a property without a warrant. What makes city officials think they can barge in when police officers cannot?”

Amanda Wink, another plaintiff in the lawsuit, emphasized that the ordinance treats renters as second-class citizens.

“Me renting a house is no different than owning a house. My privacy shouldn’t be any less important,” Amanda said.

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. IJ has successfully challenged a rental inspection program in Yuma, Arizona, and is currently challenging the rental inspection regimes of Pottstown, Pennsylvania, Zion, Illinois, and Seattle, Washington. IJ has spent more than 25 years fighting for the rights of all Americans to be secure in their homes and businesses and safe from abusive government policies. IJ’s victories have saved homes and businesses, including: the home of an Atlantic City  widow; 17 homes and businesses in Lakewood, Ohio; and a boxing gym for inner-city youth in National City, California.

Minnesota Soon to Dramatically Expand Cottage Food Businesses

As part of an omnibus agriculture bill Gov. Tim Walz signed on Tuesday, Minnesota will loosen restrictions on cottage food businesses, which let residents sell homemade, shelf-stable food. The bill, SF 958, more than quadruples the state’s annual sales cap for cottage food businesses, raising it from $18,000 to $78,000. Further expanding economic opportunity, cottage food producers will finally be able to incorporate their businesses. And the new law will also simplify rules for selling homemade pet treats under the cottage food law, making it easier for cottage food entrepreneurs to sell pet treats to consumers. 

“It’s going to help us diversify our farm and expand into new markets,” said Aaron Wills, who runs Little Hill Berry Farm in Northfield. “This also will extend our season so we can use our products in different ways year-round, opening up new opportunities for our business.”

In 2017, the Institute for Justice authored the nation’s first comprehensive study of cottage food businesses, which showed that they serve as an important path to entrepreneurship for their owners, who are often lower-income women. Even a small amount of extra income from a cottage food business can be helpful to lower-income households struggling during the economic recovery from the COVID-19 pandemic. 

“This bill will make a huge difference in the lives of so many entrepreneurs who are working from home, including stay-at-home parents, veterans, people with disabilities and many others who will now have the opportunity to earn a living selling cottage food,” said Shelley Erickson, president of the Minnesota Cottage Food Producers Association.

Minnesota is just the latest state to liberalize its home baking laws, joining 21 other states that have dramatically expanded their cottage food programs. During that time, the Institute for Justice has won constitutional challenges to Minnesota’s restrictions on the right to sell home-baked and home-canned goods and Wisconsin’s ban on the sale of home-baked goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including Alabama, Florida, Kentucky, Maryland, Nebraska, New Mexico, Oklahoma, West Virginia, Wyoming and Washington, D.C. 

“Minnesota’s sales cap made it unfeasible for most Minnesotans to have a successful home-based food business,” said IJ Legislative Counsel Meagan Forbes. “This law will enable thousands of Minnesotans to pursue their calling and support their families by selling homemade food in their communities.”

 

New Alabama Law Protects Innocent Owners From Civil Forfeiture

Gov. Kay Ivey signed a bill late Tuesday that strengthens safeguards against civil forfeiture, which lets the government seize and keep cash, cars, and other valuables without ever charging the owner with a crime. Alabama has long had some of the nation’s worst civil forfeiture laws, receiving a D- in a 2020 report by the Institute for Justice.

Under the new law, agencies are banned from seizing and forfeiting cash under $250 and vehicles valued at less than $5,000, while district attorneys can set those threshold levels even higher. Though civil forfeiture is often defended as a way to target drug kingpins, many forfeiture cases involve relatively small amounts. A 2018 report by Alabama Appleseed and the Southern Poverty Law Center revealed that half of all cash seizures involved amounts under $1,372. 

“Civil forfeiture is one of the greatest threats to private property in Alabama,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “By setting minimum dollar thresholds for currency and vehicles, Alabama becomes one of the very few states to address the problem of thousands of low-value seizures. This is an innovative reform because it is irrational for even the most innocent property owner to pay a lawyer to litigate the return of $250 or an old car.”

Co-sponsored by Sen. Arthur Orr and Rep. Andrew Sorrell, SB 210 will:

  • Restore the presumption of innocence by requiring the government to show that owners are not innocent before taking title to their property. Similar requirements are found in 14 other states and the District of Columbia;
  • Ban officers from forcing owners to waive or relinquish their rights to property. Similar requirements are found in four other states; and
  • Prohibit state and local law enforcement from transferring seized property to the federal government, except for cases involving more than $10,000 in cash, through a federal program known as “adoptive” forfeiture. Over the past two decades, Alabama agencies collected more than $104 million in federal forfeiture funds.

SB 210 builds off of an earlier reform supported by organizations as diverse as the Southern Poverty Law Center, the Alabama District Attorneys Association and IJ, which created the state’s first reporting and transparency requirements for civil forfeiture. According to that inaugural report, Alabama law enforcement conducted 870 seizures in 2019, confiscating 186 vehicles and nearly $4.9 million in cash.

Supreme Court Rejects Veteran’s Attempt to Sue VA Hospital Police Who Assaulted Him in Unprovoked Attack

ARLINGTON, Va.—If you are in Mississippi, Louisiana, and Texas, you now cannot sue federal police for violating your constitutional rights, no matter how egregious their conduct. The Supreme Court today refused to hear a case—Oliva v. Nivar—that would have allowed government officials to be held to account. As a result, the erroneous lower court decision by the 5th U.S. Circuit Court of Appeals will stand, leaving more than 18,000 federal police without any judicial oversight for constitutional violations.

What’s worse, this decision is already having a cancerous impact. It has spread to other circuit courts around the nation, giving judges an excuse to ignore gross violations of individual rights by federal government officials.

“Unless the Supreme Court steps in soon, it won’t be only Mississippi, Louisiana and Texas that will be affected,” warned Anya Bidwell, an attorney with the Institute for Justice and co-counsel in Oliva. “Federal police in the rest of the nation could soon operate under this regime of constitutional unaccountability too. Indeed, the 8th U.S. Circuit Court of Appeals recently adopted the same rule, with no accountability in sight for federal police in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.”

“The problem is only going to get worse,” Bidwell said. “At some point the Supreme Court will have no choice but to address this issue, but so much damage to human lives will be left in the wake. Can it really be that as long as you wear a federal badge, the Constitution does not apply to you?”

For José Oliva, a 75-year-old war veteran­­ whose appeal was just rejected by the High Court, his legal woes began in February 2016 when he tried to attend a dentist appointment at an El Paso Veterans Affairs hospital. Inexplicably, three VA security guards violently attacked him, forcefully choking José and causing permanent damage to his shoulder. Apparently, one of the guards did not like that José placed his identification card inside a plastic bin, rather than handing it to the officer.

When prosecutors did not bring charges against the officers, José sued in civil court for violations of his constitutional rights. As someone who served in the law-enforcement for 25 years, he took this unnecessary use of excessive force personally. “These officers felt like the law did not apply to them,” José said. “I wanted to prove them wrong. Not just for me, but for all of us who live in this constitutional republic founded on the principle of government accountability.”

José won round one of his lawsuit. The district court denied the officers’ attempt to shield behind qualified immunity, ordering the case to proceed to trial. After all, the district court reasoned, there were plenty of court cases to put VA police on notice that it is unconstitutional for police officers to assault people for no reason.

The officers won round two, however, after they appealed the qualified immunity determination. Interestingly, the 5th Circuit did not even rule on qualified immunity. Instead, it simply held that because VA officers were employed by the federal—rather than state—government, they could not be sued.

If this sounds draconian, that’s because it is. As 5th Circuit Judge Don R. Willett described it, this opinion “erases any doubt” that “[i]f you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”

After losing in the 5th Circuit, José asked the U.S. Supreme Court to take up his case. Today, the Court refused. But neither José nor the Institute for Justice are done fighting.

“I will never give up,” said José. “As we say in the military: duty, honor, country. We leave no-one behind and we don’t give up. I invite every American to join me in this fight. The Constitution is here to protect all of us. It does not take a leave of absence when the perpetrator happens to work for the federal government.”

“José is right,” said Patrick Jaicomo, an IJ lawyer and co-counsel in the case. “We will continue the drumbeat and keep bringing these cases to the U.S. Supreme Court. It is simply wrong that someone like José cannot even open the courthouse door and sue the officers who beat him. If the Constitution doesn’t protect José, we should all be very worried.”

“As Judge Willet said, ‘a written constitution is mere meringue when rights can be violated with nonchalance,’” added Alexa Gervasi, an attorney with the Institute for Justice and another lawyer on the case. “This is not what the founders intended, and it is not how they designed this country. What is the point of the separation of powers if the judiciary cannot check the executive, especially in the context of excessive force?”

“Having a remedy when your rights are violated is essential in a constitutional republic,” said Scott Bullock, president and general counsel of the Institute for Justice. “IJ was founded because of our fundamental belief that no one is above the Constitution and nothing, not even a federal badge, can shield you from accountability. We are here to stay and to see it through to the end: federal officials are subject to the Constitution, just like everyone else.”

José’s case is a part of IJ’s Project on Immunity and Accountability, where we fight to ensure that if citizens must follow the law, then government workers must follow the Constitution.

Judge Blocks Wisconsin’s Arbitrary and Unconstitutional Ban on Home-Baked Goods Made Without Flour

DARLINGTON, Wisc.—This afternoon, Lafayette County Circuit Court Judge Duane M. Jorgenson ruled that Wisconsin’s Department of Agriculture Trade and Consumer Protection (DATCP) had not been following a 2017 order that declared the state’s ban on the sale of home-baked good sales unconstitutional. Specifically, DATCP had continued to ban home-baked goods made without flour such as gluten free cakes and cookies, several types of French pastries, granola, kale chips, and even brownies–which are often made without flour. This led Wisconsin home bakers, alongside the Institute for Justice (IJ), to demand that DATCP follow the order, which stated that DATCP must allow the sale of all baked goods that are shelf-stable, regardless of their ingredients. As a result, Wisconsinites can start selling flourless baked goods directly to consumers.

“The Department made the flour requirement out of thin air, and the judge saw that for what it was,” said IJ Senior Attorney Erica Smith. “This ruling is a victory for all Wisconsinites. Now, people will have more options to buy fresh and locally made treats.”

Lisa Kivirist, Kriss Marion and Dela Ends were the plaintiffs in the 2016 lawsuit against Wisconsin’s ban on the sale of home-baked goods with IJ. They celebrated the win today with plans to sell new goods. Before today’s ruling, Kivirist could not sell her homemade cereals that, though baked and shelf-stable, are made with whole oats and not flour.

For some Wisconsinites, selling baked goods without flour has personal importance. Take Dela Ends, a plaintiff in the original lawsuit, who wants to sell baked goods to her gluten-free customers. She starting making gluten-free goods because her daughter has celiac disease.

“Homemade gluten-free goods are delicious, but store-bought ones can be dry and tasteless. Being able to sell baked goods without flour is important for people that can’t eat foods with gluten,” Dela said.

Alongside demanding that DATCP follow the 2017 ruling for baked goods, the bakers joined other Wisconsin homemade food producers in February to launch a separate lawsuit challenging the state’s ban on sales of other shelf-stable homemade that are not baked, like chocolates, fudges, and roasted coffee beans. That lawsuit is ongoing.

“Today, the judge reiterated his 2017 opinion that it’s unconstitutional for the government to ban sales of shelf-stable baked goods,” said IJ Law & Liberty Fellow Suranjan Sen. “The same principle should apply to sales of any safe, shelf-stable food. That’s what the new case is about.”

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women living in rural areas. Even a small amount of extra income from a cottage food business can be helpful to lower-income households struggling during the economic recovery from the COVID-19 pandemic.

Alabama Soon to Dramatically Expand Homemade Food Businesses

MONTGOMERY, Ala.—Alabama is taking a major step forward for food entrepreneurs and consumers with Gov. Kay Ivey’s signature of SB160, which will lift Alabama’s restrictive $20,000 cap on gross sales, allow the sale of all shelf-stable foods and allow online sales and shipping. This will allow Alabamans who want to make a living selling delicious homemade or “cottage foods,” to finally do so. The Institute for Justice (IJ), a national advocate for food freedom that helped craft the bill, celebrated what this change in law will mean for Alabama families.

“Alabama’s sales cap and shipping restrictions made it unfeasible for most Alabamans to start a homemade food business,” said IJ Legislative Counsel Meagan Forbes. “This law will enable thousands of Alabamans to support their families through a homemade food business.”

One Alabama home baker, Melissa Humble from Headland, testified to the Alabama Senate Healthcare Committee that she supported the bill because “It will help my family and other families in Alabama recover from the pandemic.”

Ms. Humble sells French macaroons and other baked goods, which has proved helpful for her family during the pandemic. As a teacher and photographer with an immunocompromised partner, Melissa decided it would be best for her family to not work her traditional job during the pandemic. Operating a cottage food business has allowed her to support her family while staying at home. But she faced unnecessary barriers that reduced her business’s earning potential.

“In December alone, over twenty people requested to purchase my baked goods and have them shipped, but I had to turn them away because of the way the law is written. I lost $400 in sales,” she testified.

Now, effective August 1, Alabamans will have the ability to have a thriving cottage food business.

“This law means new opportunities for my business, and more food options for people across Alabama,” said Melissa. “Online sales will really benefit me and my customers.”

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women. Even a small amount of extra income from a cottage food business can be helpful to lower-income households struggling during the economic recovery from the COVID-19 pandemic.

“The pandemic led many Alabamans to want to start a homemade food business, but many realized how difficult it is to open up shop because of onerous state rules and regulations,” said IJ Activism Associate Andrew Meleta. “This law will be especially helpful as Alabamans recover from the economic damage of the pandemic. Cottage food laws create flexible job opportunities, especially for women, and support local economies.”

IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home-canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including in Florida, Kentucky, Maryland, Nebraska, West Virginia, Wyoming and D.C.

Tarpon Springs Food Truck Owners Sue City Over Anti-Competitive Law Protecting Restaurant Owners

CLEARWATER, Fla.—Today, the owners of a Florida food truck filed suit in state court to protect their right to earn a living in the Tampa Bay area city they call home, Tarpon Springs. When Elijah Durham lost his job as a chef during the pandemic, he decided to become his own boss. He and his wife Ashley purchased a food truck and opened SOL Burger, intending to serve customers in their community with locally sourced ingredients. It was good timing, since Florida had just prohibited cities from having blanket bans against food trucks, like the one in Tarpon Springs.

But soon after SOL Burger opened and had been invited to serve the hungry customers of a local brewery, the city moved to ban food trucks from downtown Tarpon Springs. But the new ban had a big exception: local restaurants would be able to operate food trucks on their property. All other food trucks were relegated to a sliver of land far from potential customers. Elijah and Ashley had to take SOL Burger outside Tarpon Springs to make ends meet even though private property owners wanted them to operate in their parking lots.

Now, Elijah and Ashley are teaming up with the Institute for Justice (IJ) to sue Tarpon Springs over its anti-competitive food truck ordinance. Tarpon Springs’ ordinance may comply with Florida’s food truck law, but it violates the Florida Constitution, which prohibits using government power to benefit a favored economic group at the expense of others.

“Tarpon Springs embraces food trucks, but only if they are owned by local restaurants,” said Florida Office Managing Attorney Justin Pearson. “Not only is Tarpon Springs’ protectionism unconstitutional, but it misunderstands the relationship between food trucks and restaurants. Cities in other parts of the state have seen that food trucks increase foot traffic and help downtown areas, including restaurants, but Tarpon Springs’ government failed to do its homework.”

The Occupational Freedom and Opportunity Act of 2020 stopped Florida cities from banning food trucks or requiring local licenses. Local restaurant owners, frustrated that the state had opened the door to new competition, pressed the Tarpon Springs Board of Commissioners and Mayor to pass the new ordinance that would exclusively grant them the right to operate food trucks downtown.

Tarpon Springs may have acted to protect local restaurants, but there is plenty of evidence that it acted against the interest of the greater community. Small-scale culinary businesses like SOL Burger provide customers with more food options. They bring increased foot-traffic, benefitting all surrounding businesses. They improve the overall local economy, both for vendors themselves and restaurants too. Entrepreneurs who succeed with a food truck often use their profits to open brick-and-mortar restaurants.

“We live in Tarpon Springs, but the city made it nearly impossible for us to serve customers near our home just because we don’t own a restaurant,” said Elijah. “When I lost my job during the pandemic, buying a restaurant wasn’t an option. We just want to serve while parked on private property, not city streets. We’re fighting this protectionism not just for us, but for food truck owners across Florida.”

Tarpon Springs’ protectionist ordinance violates the Florida Constitution in that it denies Elijah and Ashley’s right to operate their truck for no other reason than to protect other businesses from competition. It also violates the constitution because it treats Elijah and Ashley’s food truck differently than restaurant-owned food trucks for only protectionist reasons.

“The government isn’t allowed to pick winners and losers in the marketplace. That choice is up to consumers,” said IJ Attorney Adam Griffin. “Tarpon Springs has said that only the politically connected insiders can have food trucks in downtown Tarpon Springs. That’s not just wrong; it’s unconstitutional. Elijah and Ashley are suing not just for themselves but to protect everyone’s rights.”

The Institute for Justice has successfully challenged restrictions on the economic liberty of food trucks to operate across the nation through its National Street Vending Initiative. IJ has successfully challenged unconstitutional food-truck restrictions in Fort Pierce, Florida; Carolina Beach, North Carolina; South Padre Island, Texas; and other cities across the U.S.

U.S. Supreme Court Unanimously Rejects Dangerous Expansion of “Community Caretaking” Doctrine

ARLINGTON, Va.—The U.S. Supreme Court today unanimously held that the government cannot enter people’s homes without a warrant on the pretense of acting as “community caretakers.” Today’s opinion in Caniglia v. Strom closely tracks arguments made in an amicus brief submitted by the Institute for Justice.

The case involved police entering the Caniglia family home to seize handguns without a warrant or an emergency. One officer felt that Mr. Caniglia might be upset due to an argument he had with his wife the day before. To seize the weapons, the officers lied to Ms. Caniglia after taking her husband to the hospital for an evaluation.

Mr. Caniglia sued for the return of the weapons, arguing that the government’s invasion of the Caniglias’ home violated the Fourth Amendment. But the government responded that police were justified in entering the home because they were acting as “community caretakers.” The government argued that this “community caretaking” exception allows police to enter someone’s home without a warrant or an emergency so long as they are performing some non-investigative “community caretaking” function.

The Institute for Justice filed an amicus brief outlining how the government’s “community caretaking” exception would blow a house-sized hole in the Fourth Amendment. Americans’ right to be secure historically meant that the government couldn’t enter someone’s home without a warrant or the existence of a real emergency. But the “community caretaking” doctrine was originally a narrow exception meant for disabled vehicles. Extending it to the home would mean the government could enter without a warrant whenever an officer felt it might in some way possibly help further the public’s health or safety.

“Our constitution guarantees our right to be secure in our persons and property. Allowing the government to enter our homes without a warrant whenever an officer thinks it is a good idea would turn that security into a dead letter,” said IJ Senior Attorney Robert Frommer.

In a unanimous four-page opinion, the Supreme Court agreed. According to the Court, there is no community caretaking exception that “justifies warrantless searches and seizures in the home.” The term “community caretaking” originated in Cady v. Dombrowski, where the Court observed that police are often called upon to respond to disabled vehicles or investigate accidents on public highways. Importantly, Cady made an “unmistakable distinction” between vehicles on public roads and the home. Justice Thomas emphasized that, absent a valid warrant or an actual emergency, police cannot rely on a “standalone” community caretaking function to enter people’s homes consistent with the Fourth Amendment.

“Today, the Court confirmed that the government cannot enter someone’s home without a warrant simply for the sake of convenience,” said Institute for Justice President Scott Bullock. “In doing so, the Court reaffirmed that people’s property rights cannot be trumped by an extremely broad, vague concept of ‘community caretaking.’”

Police Shooting Case Gives the Supreme Court an Opportunity to Reject Further Expansion of Qualified Immunity

Arlington, Virginia—Four years ago, Luke Stewart was roused awake by a police officer knocking on his car window after a neighbor called to report a suspicious man asleep in a car. Stewart, who was unarmed and waiting for his friend to return home, did not do anything to threaten the officer, but the situation quickly escalated to the point that the officer jumped in the car, drew his gun and killed Stewart. Stewart’s family demanded justice and sued the officer and his employer, the city of Euclid, Ohio. Now, after losing in lower courts, their case is pending appeal before the U.S. Supreme Court, which is set to consider whether it will hear the case on Thursday, May 20th.

The Institute for Justice, a nonprofit public interest law firm, filed a brief urging the court to take up the Stewarts’ case.

The case centers around a legal doctrine called “qualified immunity.” The doctrine, which was created by the Supreme Court in 1982, grants government employees like police officers and others near total immunity from being sued for violating someone’s rights. The only exception is if a judge in a previous case has determined that the same action was illegal, which is frustratingly rare.

Originally the doctrine only applied to individual government employees, but courts have increasingly extended it to cover cities, counties and other governmental bodies. In doing so, they’ve deprived aggrieved individuals anyone—or anything—to hold accountable.

“The Supreme Court should step in, reverse this dangerous decision, and reiterate that qualified immunity does not shield local governments from accountability when they violate individuals’ constitutional rights,” said IJ Attorney Marie Miller, who authored the amicus brief. “If our constitutional rights are unenforceable, as the lower court treated Stewart’s rights, then our rights are nothing more than words on paper.”

At issue in the Stewarts’ case is Euclid’s officer training program, which set a flippant tone by including a sarcastic sketch by Chris Rock and, among other things, a crude cartoon. The sketch, for instance, sarcastically suggested black people should “get a white friend” if they don’t want to get beaten up by police. And the cartoon depicted an officer beating a defenseless person on the ground, with the caption: “Protecting and serving the poop out of you.” The Stewarts’ lawsuit alleged that Euclid’s training program failed to adequately equip officers to make split-second life-or-death decisions.

A decade has passed since the Supreme Court last addressed the scope of local-government liability for rights violations. In the meantime, the courts of appeals have diverged from one another, leaving governments in some parts of the country less accountable than others.

“The spread of qualified immunity protection to local governments strips Americans of the ability to hold their governments accountable when poorly trained officers offend their rights,” explained IJ Senior Attorney Wesley Hottot, a co-author of the brief. “At the same time, it eliminates those governments’ incentive to avoid violating people’s rights in the first place.”

The amicus brief in this case was filed as a part of IJ’s Project on Immunity and Accountability, which is dedicated to fighting against qualified immunity and other doctrines that make it difficult to vindicate individuals’ constitutional rights.

To-Go Cocktails Now Permanently Legal in Florida

TALLAHASSEE, Fla.—Gov. Ron DeSantis today signed Senate Bill 148, allowing Florida restaurants to permanently provide to-go cocktails to customers. An executive order provided a lifeline to businesses during the pandemic, but it has also proved popular and safe. The Institute for Justice (IJ) supported the permanent change and applauds lawmakers for giving businesses the freedom to serve Floridians in the way that works best for them.

“Today Floridians can order up a cocktail from their favorite restaurant, take it home, and toast to their new freedom,” said IJ Florida Office Managing Attorney Justin Pearson. “Making to-go cocktails permanently available to restaurants and their customers is a sensible step. This reform will help restaurant entrepreneurs and their employees to recover from the pandemic while also providing customers with more options.”

“We want to thank the bill sponsors, Senator Bradley and Representative Tomkow, for their work on both chambers’ versions of the bill, and Governor DeSantis for signing it into law.”

New Law Allows Montana Doctors to Dispense Medications Directly to Patients

ARLINGTON, Va.—Yesterday, Gov. Greg Gianforte signed SB 374 into law, allowing doctors in Montana to dispense prescribed medications directly to their patients, a practice known as “doctor dispensing.” The bill was proposed following a lawsuit filed in June 2020 by the Institute for Justice (IJ) on behalf of Dr. Carol Bridges, Dr. Cara Harrop and Dr. Todd Bergland challenging the state’s ban on doctor dispensing.

The bill gained near-unanimous support after the Montana Pharmacy Association—which had opposed several previous reform efforts—testified in support of the bill. The Association acknowledged that “the root of our previous opposition to similar bills was protectionism,” and declared that “taking care of patients . . . means being amenable to change and looking ahead and not being so protective of our profession.” The Association also noted that its change of heart was prompted, in part, by IJ’s lawsuit.

“Montana did the right thing by allowing patients to decide for themselves where to purchase their prescribed medications,” said IJ Attorney Josh Windham. “The fact that the Montana Pharmacy Association said the quiet part out loud—that these bans have always been motivated by economic protectionism—should inspire the few remaining states with similar bans to follow suit.”

“This legislation is another step toward achieving quality outcomes in medicine,” said Dr. Cara Harrop. “Patients have the option of getting medication in an affordable and transparent model, doctors can be better informed about their patients’ compliance with their prescribed treatment plans, and pharmacists, where appropriate, can continue serving as consultants on the healthcare team.”

“I’m grateful that our lawsuit played a part in prompting this legislation,” said Dr. Todd Bergland. “Ultimately, common sense and justice have prevailed—and Montana patients will be the beneficiaries.”

Under the original law, Montana doctors were banned from regularly dispensing medications to their patients unless they worked over 10 miles from the nearest pharmacy. Doctors who violated the ban could be fined and even lose their medical licenses.

Montana joins 44 other states and the District of Columbia in allowing doctor dispensing, a service most doctors report offering on a daily basis and that national research shows is just as safe as pharmacy dispensing. Now that Montana’s bill has been signed, IJ and the doctors plan to withdraw their lawsuit.

Of the five states that still ban doctor dispensing, Massachusetts and Texas also have pending legislation that could legalize the practice. IJ is currently suing Texas to overturn its ban.

“Banning doctors from supplying patients with the medications they have prescribed is a senseless barrier to care that serves only to protect pharmacies from economic competition,” said IJ Attorney Keith Neely. “Now that Montana has repealed its ban, we call on the small handful of states with these anti-competitive laws to do the same.”

National Public Interest Law Firm Weighs In On Safety Deposit Seizure Case

LOS ANGELES—In March, federal agents seized the contents of hundreds of security deposit boxes at a Beverly Hills facility absent any evidence that the people who rented those boxes did anything wrong. Yesterday evening, the Institute for Justice (IJ) weighed into that dispute with a friend-of-the-court brief urging U.S. District Court Judge R. Gary Klausner to return the seized property.

As has been widely reported, the government seized the boxes at U.S. Private Vaults as part of its investigation into alleged offenses by the company’s owners. The government did not allege any wrongdoing by company’s customers, and in fact the government has conceded in court filings that “some of the customers of USPV are honest citizens to whom the government wishes to return their property.” Nonetheless, the government cracked open every box in the vault and ran any cash they came across by drug-sniffing dogs.

“The government’s deliberate dragnet search of innocent peoples’ private security boxes is the most shocking Fourth Amendment abuse that the Institute for Justice has ever seen,” said IJ Senior Attorney Robert Frommer. “The government didn’t get a warrant to search these boxes, but it claims that it had to break them open to ‘protect’ renters from theft or loss. But the easiest and best way to do that would have been to leave the boxes locked and secure until renters could come retrieve their property.”

The government’s actions also threaten to turn the presumption of innocence on its head. Usually, the government has to prove you did something wrong before it takes your property. But the government is now asserting that, to get their property back, the hundreds of people who rented security boxes from U.S. Private Vaults must come forward, identify themselves to the FBI, and prove to the government’s satisfaction that they came by their property legally.

“This case is about the right to privacy from the government and property rights,” added IJ Senior Attorney Robert Johnson. “The government is making box holders prove they aren’t criminals simply because they kept their property in a private facility. But privacy is not suspicious, and it isn’t criminal. It’s a fundamental constitutional right.”

Montana Dramatically Expands Educational Choice Program at Issue in Landmark 2020 Supreme Court Decision, Becoming One of 11 States to Provide Greater Parental Choice in 2021

HELENA, Mont.—Tomorrow, Montana Gov. Greg Gianforte is expected to sign HB 279, a bill dramatically expanding the state’s educational choice program and allowing hundreds more children to participate. The program offers students scholarships to attend the private school of their choice and is funded by private donations for which the donor may claim a tax credit. The new law increases the amount of the tax credit a donor may claim from $150 to $200,000. This is the latest development in a multiyear legal saga over the program, which culminated in the 2020 landmark U.S. Supreme Court ruling Espinoza v. Montana Department of Revenue. The new law makes Montana one of 11 states to provide greater parental choice in 2021.

“Now, hundreds more children in Montana will have the opportunity to attend the school that best meets their needs,” said Institute for Justice (IJ) Senior Attorney Erica Smith. “Public schools work fine for many students, but other students struggle in their assigned school. This bill will help those children choose a school that works best for them, be it public, private or religious.” Smith testified in support of the bill at the Montana Legislature and represented the plaintiff families in the Espinoza case.

The Montana Legislature initially passed the tax-credit scholarship program in 2015. The program enabled taxpayers to receive a $150 tax credit in exchange for donating to nonprofit scholarship organizations. These organizations provide scholarships to low-income students and students with disabilities whose parents believe that an alternative to their public school will best serve their children’s interests.

Immediately after the program passed, however, it went to court. The Montana Department of Revenue adopted a rule banning scholarships for students attending religious schools. As a result, the Institute for Justice teamed up with three families who wanted to use the scholarships to attend religious schools and sued the Department. The case wound its way all the way to the U.S. Supreme Court.

In a landmark 5-4 ruling, the Court ruled that a state cannot exclude religious options from an educational choice program. The Court held that barring religious options from such programs violates the First Amendment’s protections for religious liberty. Educational choice programs require the state to remain neutral regarding religious options and allow families to choose the educational placement that works best for their families.

Although the program received nationwide attention, it was still small compared to dozens of other educational choice programs nationwide. Only about 50 students participated annually, receiving only $500 scholarships each. Its small size was due to the legal cloud hovering over the program, as well as the low amount of the tax-credit—$150.

Now, with the legal issues resolved, the Legislature chose to expand the program. Under HB 279, individual and business taxpayers will be able to donate up to $200,000 annually to scholarship granting organizations in exchange for a tax credit. This will allow many more children to participate in the program. The program is capped at $1,000,000 in available tax credits for 2022, and $2,000,000 for 2023, but it can expand in future years if the program proves popular. The law goes into effect immediately.

With the new law, Montana joins many states in providing greater parental choice to families since the Espinoza decision. So far in 2021, five other states (Arkansas, Indiana, Kentucky, Missouri, and West Virginia) have passed legislation to create new educational choice programs. In addition, seven states (Arkansas, Florida, Georgia, Indiana, Kansas, Maryland, and South Dakota) have passed legislation to expand their existing programs.

“We are overjoyed to see our legal victory in Espinoza make a real difference in lives of children nationwide,” said IJ President and General Counsel Scott Bullock. “We hope that in the coming years, many more states will take advantage of the solid legal footing we have been able to establish for educational choice programs.”

Oklahoma Soon to Become One of the Best States in the Nation for Homemade Food Businesses

OKLAHOMA CITY—Today, Gov. Kevin Stitt signed the Homemade Food Freedom Act into law. The Oklahoma Legislature unanimously approved the bill, making it the fifth state to embrace “food freedom” by allowing homemade food entrepreneurs to sell a variety of products in new ways without needless red tape. Effective November 1, 2021, homemade or “cottage food” producers can sell any shelf-stable food as well as perishable foods other than meat, poultry and seafood. It also allows the sale of homemade foods online and the shipping of shelf-stable goods.

The Institute for Justice (IJ), the nation’s leading advocate for food freedom, helped craft the bill in response to the need to improve the regulatory framework for Oklahoma food entrepreneurs. Before this law, Oklahoma had one of the most restrictive cottage food laws in the country. Now, it has one of the most empowering ones, which will create new job opportunities and food options throughout Oklahoma.

“There has long been pent-up demand for Oklahomans to be able to buy homemade goods from their neighbors without unnecessary restrictions,” said IJ Legislative Counsel Meagan Forbes. “This law ensures that Oklahoma food entrepreneurs will have the ability to build their businesses and support their families.”

Without the law, Oklahomans would need to spend tens of thousands of dollars per year and obtain a costly commercial food license to sell most goods to their neighbors.

Thanh Tran, a leader with the Oklahoma Young Farmers Coalition, stressed that this law will help young farmers compete and not get crowded out by big businesses. “This law is a crucial step for hardworking Oklahomans to get started with their homemade food business,” said Tran. “They can directly start out of their own resources and not have to spend tens of thousands of dollars to per year on a commercial kitchen.”

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women. Even a small amount of extra income from a cottage food business can be helpful to lower-income households struggling during the pandemic economic recovery.

“This law will be especially welcome to Oklahoma families recovering economically from the pandemic,” said IJ Activism Manager Melanie Benit.

IJ has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home-canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including in Kentucky, Maryland, Nebraska, West Virginia, Wyoming and D.C.

Arizona Governor Signs Important Forfeiture Reform Bill

PHOENIX—Arizona Governor Doug Ducey on Wednesday signed a bipartisan bill (HB 2810) that strengthens due process protections for property owners facing civil forfeiture.

The bill had received overwhelming bipartisan support in both the House—which approved it 57-2—and Senate—which approved it 29-1. Arizona, which adopted some reforms in 2017, joins a growing list of states that have adopted similar reforms since  2014.

Under civil forfeiture, law enforcement agencies can seize and keep property without ever charging the owner with a crime. Worse, police and prosecutors can keep 100% of the forfeited proceeds, creating a perverse incentive for abuse. Over the past two decades, Arizona law enforcement agencies forfeited more than $530 million, according to a 2020 report from the Institute for Justice.

“Civil forfeiture threatens everyone’s property and due process rights,” said Paul Avelar, the Institute for Justice Arizona Office Managing Attorney. “The government can take your car, your home, and your life savings without ever charging you with a crime, much less convicting you. HB 2810 makes important reforms to Arizona’s forfeiture laws to protect innocent property owners from government abuse.”

HB 2810 makes five important reforms:

  • Requires a conviction in criminal court to forfeit property in civil court in most instances. Similar requirements are found in 15 other states;
  • Restores the presumption of innocence by requiring the government to show that owners are not innocent before taking their property. Similar requirements are found in 13 other states and the district of Columbia;
  • Bans officers from coercing owners to waive or relinquish their rights to property. Similar requirements are found in three other states;
  • Abolishes “non-judicial” forfeiture, a process that allows law enforcement to forfeit property without the case ever going before a judge; and
  • Creates a prompt, post-deprivation hearing for owners to request the return of their property.

Despite widespread recognition that forfeiture is being abused and bipartisan support for reforms, reforms have faced stiff opposition from well-organized law enforcement groups. Tellingly, some of these groups have admitted that funding concerns drive their resistance to reforms. Law enforcement agencies in Arizona took in $24 million through the state forfeiture program in FY 2019 alone. And they spend almost all of their forfeiture funds on themselves: More than one-third of all expenditures went to fund salaries and personnel costs; only 3% went to Community Programs; and just one-third of 1% went to Victim Compensation and Services.

There is also increasing evidence that forfeiture does not work.  Evidence from five states, including Arizona, showed that more forfeiture proceeds don’t help police solve more crimes or reduce drug use. Instead, police do appear to ramp up forfeiture activity when local economies suffer (and department budgets are likely to be tight ), suggesting police do use forfeiture to raise revenue. Perversely, more forfeiture proceeds may make police less effective at solving violent crimes because increases in forfeiture proceeds are associated with fewer violent crimes solved. The promise of revenue may entice police to spend fewer resources on violent crimes and more on crimes more likely to lead to forfeiture. Indeed, in the six years since New Mexico adopted the nation’s strongest forfeiture reforms, there has been no increase in crime rates or decreases in arrest rates even though law enforcement repeatedly warned those things would happen.

HB 2810 will go a long way towards protecting innocent owners like Jerry Johnson. Based in Charlotte, North Carolina, Jerry owns a small trucking company and found a semi-truck he wanted to buy in Phoenix. He scraped together his savings, borrowed money from family and purchased an airline ticket, bringing $39,500 in cash with him.

But when Jerry collected his checked luggage, Phoenix airport police accused him of money laundering and demanded he sign a “Disclaimer of Ownership” form. Believing he would be arrested and sent to jail if he refused, Jerry signed the “waiver” under duress, not fully understanding that it said he was surrendering his ownership of his money. IJ is now appealing Jerry’s case after a Maricopa County district court ruled that Jerry could not prove he was an innocent owner and didn’t have standing to contest the forfeiture.

“Jerry did nothing wrong by flying to Phoenix with $39,500 in cash, yet law enforcement is trying to take his money forever without ever charging him with a crime,” Avelar added. “His case is a clear example of how civil forfeiture is abusive and why reforms like HB 2810 are so desperately needed in Arizona.”

HB 2810 also protects innocent owners like Terry and Ria Platt. Terry and Ria found themselves in the maze of Arizona’s non-judicial forfeiture system when their car was seized after police pulled over their son—who did not own the car—for a window tint violation. The police found cash and a small amount of personal use marijuana, both of which the son said were his. Even though Arizona law does not allow forfeiture of the car for having cash and a small amount of personal use marijuana, prosecutors tried to ignore the law and forfeit the car.

When Terry and Ria submitted paperwork to the prosecutor to try to get their car back, the prosecutors ignored it. The prosecutors then told the court the paperwork didn’t count, without giving a reason why or letting the court see the paperwork, and that Terry and Ria had therefore forfeited their right to their day in court. After months of denying Terry and Ria their car and their rights, the prosecutors only relented and returned their car after IJ sued. But the prosecutors continued to claim that everything they had done to Terry and Ria was legal.

“In the upside-down world of civil forfeiture, the government could presume Terry and Ria to be guilty until they proved their innocence and could even deny them their day in court to present their proof,” explained Avelar. “Although HB 2810 will protect property owners going forward, IJ will continue to litigate on behalf of Jerry and the Platts until their rights are fully protected by the courts.”

Online Vision Testing Service Scores Major Win at South Carolina Court of Appeals

COLUMBIA, S.C.—Today, the South Carolina Court of Appeals reversed a lower court decision dismissing online vision testing company Visibly’s lawsuit against the state. This means that Visibly’s lawsuit can proceed, which could have far-reaching implications for economic freedom in South Carolina.

Visibly’s innovative technology allows patients to take an online vision test and have their results sent to a licensed eye doctor, who can review the results and decide whether to write a prescription for new glasses or contacts. Visibly was busy serving happy customers in South Carolina until 2016, when local optometrists pushed for legislation that banned doctors from using its technology.

Because the ban restricted access to care merely to protect optometrists from economic competition, Visibly, in partnership with the Institute for Justice (IJ), sued. But in 2018, the case hit a snag. A state trial court ruled that Visibly lacked standing to challenge the ban on the theory that losing the ability to operate a “chosen” business is not an injury.

Today’s decision reverses that ruling. As the South Carolina Court of Appeals explained: “[Visibly] has suffered an actual and particularized injury” because the company “is prohibited from engaging in business under the business model it desires.”

“This decision recognizes what should have been obvious from the start: When one market group successfully lobbies to put their competitors out of business, the victim can sue to defend their right to earn an honest living,” said IJ Attorney Joshua Windham.

Now, the case will head back to the trial court for a decision on the merits.

“We are excited to move to the merits of this case, so we can provide affordable, convenient and effective vision tests to the people of South Carolina,” said Visibly CEO Brent Rasmussen.

“We launched this case with a simple message: States have no business depriving patients of convenient access to care simply to protect outdated business models from competition,” said IJ Senior Attorney Robert McNamara. “The pandemic has only underscored that message by highlighting the important role that technologies like Visibly can play in expanding access to care. Now is the time to strike down this unconstitutional law.”

Vietnam Vet Beaten by Police Continues Supreme Court Appeal

Federal judge decries “Constitution-free zone” that courts have created in which “individuals whose constitutional rights are violated at the hands of federal officers are essentially remedy-less.”

Arlington, Virginia—On May 20, the U.S. Supreme Court is expected to consider whether to grant review in yet another police brutality case, this time involving a 70-year-old veteran who was assaulted by federal police in a VA hospital. With the briefing for review now complete, all that is left is for the High Court to decide is if they will take this case and determine whether federal officers who attacked the veteran will be held to account. The federal appeals court in the case ruled the officers could escape accountability because they work for the federal—rather than state or local—government.

More than five years ago, Vietnam veteran José Oliva was headed into a dental appointment at a Veterans Affairs hospital in El Paso when three VA police officers wrenched his arm behind his back, choked him, and slammed him to the ground, causing damage that required surgery. What sparked the assault? José had told one of the officers his ID was in the X-ray bin instead of placing his license directly in the officer’s hands.

As the video of this assault shows, José did not provoke the attack, and with 25 years of federal law enforcement experience under his belt, José knew better than to resist.

Prosecutors refused to hold the officers accountable, so José filed suit in federal court for the officers’ violation of his Fourth Amendment right against excessive force. José won in the trial court, where the court held that the officers violated clearly established law by using force without provocation, but the 5th U.S. Circuit Court of Appeals reversed. It held that José could not sue the officers because they worked for the federal—rather than state or local—government and, therefore, were immune from suit.

That’s when José teamed up with the Institute for Justice. “The Supreme Court has repeatedly held that federal officials can be held personally liable for executing unreasonable searches and searches,” explains IJ Attorney Patrick Jaicomo. “If that is no longer the law, only the Supreme Court, not the Fifth Circuit, must say so.”

The Institute for Justice filed a petition for certiorari asking the Court to review José’s case, and experts in the field filed amicus (or “friend of the court”) briefs in support. Notably, the Supreme Court called for a response from the officers, asking them to explain why the Court should not review the Fifth Circuit’s erroneous decision. Ironically, in their briefs, the officers acknowledge that circuits disagree with each other on how to apply the Supreme Court precedent—which is one of the most common reasons the Supreme Court grants review. The officers simply say that the Fifth Circuit is just the first court to correctly apply Supreme Court precedent.

Earlier this week, José got the last word, filing his reply brief with the High Court. “As the officers effectively acknowledge in their briefs, the Fifth Circuit’s divergence from Supreme Court precedent has created a split in how the lower courts apply the law,” says IJ Attorney Anya Bidwell. “If that’s not a reason to grant review, then nothing is.”

“If the decision is allowed to stand, citizens under the Fifth Circuit’s jurisdiction—Texas, Mississippi, and Louisiana—have no claim for relief, while federal officials in other states are held accountable to the Constitution’s demands, and that’s simply unsustainable,” adds IJ Attorney Alexa Gervasi.

Since José first filed his petition for Supreme Court review at the end of January, the Fifth Circuit’s erroneous decision has been further entrenched. In March, the Fifth Circuit doubled down on its position and held that a Texas resident could not file suit against a federal officer who attempted to smash the window of his car while wielding a gun and yelling that he would “put a bullet through his f—ing skull” and “blow his head off.” Relying exclusively on its decision in José’s case, the court determined the Texan had no claim.

Tellingly, Judge Don R. Willett wrote in concurrence that the decision was “precedentially inescapable” because of the decision his court rendered in José’s case. While acknowledging that as a (self-described) “[m]iddle-management circuit judge[]” he had no choice but to concur, he lamented the “Constitution-free zone” that courts have created in which “individuals whose constitutional rights are violated at the hands of federal officers are essentially remedy-less.” As Judge Willett explained, the precedent created in José’s cases means that “[p]rivate citizens who are brutalized—even killed—by rogue federal officers can find little solace in [the Supreme Court’s precedent].”

José now urges the Court to give his case a look; to correct the Fifth Circuit’s misunderstanding of the law; and to clarify, once and for all, that federal officers can be held accountable for unreasonable searches and excessive use of force. The Court will consider whether to take José’s case at its May 20 conference.

This case is a part of IJ’s Project on Immunity and Accountability, which is dedicated to the idea that if citizens must follow the law, then government officials must follow the Constitution, and that no procedural loopholes—like qualified immunity—should stand in the way of achieving that goal.

IJ President Scott Bullock said, “IJ, through our Project on Immunity and Accountability, seeks to ensure that the Constitution serves to limit the government in fact, not just in theory, and that promises enshrined in its Bill of Rights are not empty words but enforced guarantees.”

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For more information on this case, visit https://ij.org/case/oliva-v-nivar/ or contact John E. Kramer, vice president for communications, at jkramer@ij.org or call (703) 682-9323 ext. 205.

Family-Owned Hardware Store Sues Long Island Town Trying to Take Away their Property

CENTRAL ISLIP, N.Y.—When every effort to stop a business from operating on its property has failed, can the government just take the land using eminent domain? That is the question at the heart of a new lawsuit filed by the owners of Brinkmann’s Hardware, a family-owned business with several Long Island locations that has teamed up with the Institute for Justice (IJ). For years, the Brinkmanns have worked to open a new store on property they own in the town of Southold. But the town responded by using various methods to stop the Brinkmanns from earning an honest living on their property. The town’s attempts to stifle the Brinkmanns’ new hardware store have failed, so it has chosen to use the power of eminent domain to take the Brinkmanns’ land.

The town says it wants to take the land for a park—not because the town was planning for a park, but because that appears to be the only way to stop the Brinkmanns. This extreme tactic would not only deprive the Brinkmanns of their property, but could also provide a model for other towns to similarly misuse eminent domain to prevent legal development of property. To protect their rights to earn an honest living and to their property, the Brinkmanns have filed a federal lawsuit in the U.S. District Court for the Eastern District of New York.

“The Brinkmanns’ hardware store is an entirely legal business, and Southold has no valid reason to stop them from earning a living on their property,” said IJ Attorney Jeffrey Redfern. “The Brinkmanns satisfy all legal requirements for building on the land they own, so the town has decided to just take their property. That is unfair, unconstitutional and represents a threat to businesses and property owners nationwide.”

Brinkmann’s Hardware was started by Tony and Pat Brinkmann with a single store in Sayville, New York, in 1976. Today, the company is still family-owned and operated by their children—Mary, Ben and Hank. Today, they own four hardware stores across Long Island.

The Brinkmanns purchased the plot of commercial zoned property in Southold in 2016 and planned to open a new location of their growing chain of hardware stores. But the town has done everything possible to stop the construction. After failing to drive the Brinkmanns away by attempting to interfere with the Brinkmanns’ land purchase, then imposing exorbitant permitting fees, and even deploying a selectively enforced moratorium on building permits after the Brinkmann’s applied for their permit; the town voted to take the land by eminent domain in the fall of 2020. Still, the Brinkmanns refuse to surrender.

“The town hasn’t been able to find a legal way to stop our hardware store, so now they want to just take our land,” said Hank Brinkmann. “From the beginning we’ve tried to fit into the community and follow the rules, but the rules keep shifting under our feet.”

“Taking our land by eminent domain would not only deprive us of the property we invested in to grow our business, but also would take away the opportunity to earn an honest living that the new store represents,” said Ben Brinkmann. “That is why we are keeping up this fight.”

The town’s interest in a park on the land came years into the Brinkmanns’ attempt to build their store. In 2005 and 2007–2008, the town produced planning documents that do not mention a park, let alone one on the Brinkmanns’ property. In fact, there is another commercial zoned property for sale right next door that the town could purchase if it actually wanted a park. But the town has no plans to do anything with the Brinkmanns’ land and proposes only a “passive park” that would leave in place the remnants of an old home and greenhouses.

The U.S. Constitution requires that eminent domain only be used for a true public use, but it is apparent that Southold’s attempt to take the land for a park is just a convenient excuse. Southold is using eminent domain only to halt a law-abiding business.

“The town’s claim that it needs to put a park on the Brinkmanns’ property is a sham. They just want to stop the Brinkmanns from opening their new store,” said IJ Senior Attorney Arif Panju. “If you follow the law, you should be allowed to open your business on the property that you own.”

The Institute for Justice advocates for economic liberty and defends property rights across the country. In Wisconsin, IJ successfully defended a food truck owner after his township banned all “vending on wheels” in response to his new business. In a Tennessee case that went to the Supreme Court, IJ successfully overturned a state law that banned recent residents from owning a liquor store. And after the Supreme Court narrowly affirmed that economic development was a public use in Kelo v. New London, IJ successfully advocated for stronger protections for property owners in eight state supreme courts and 43 state legislatures.

Florida Legislature Passes Bill to Boost Homemade Food Businesses

TALLAHASSEE, Fla.—The Florida Legislature today approved a bill that will make it easier to start and run homemade food businesses, opening the door to new women-owned businesses throughout Sunshine State. House Bill 663, named the “Home Sweet Home Act,” reforms rules on selling shelf-stable homemade food, commonly known as cottage foods. Florida law currently includes outdated requirements that do not exist in most states, and this overdue reform could lead to the creation of new small businesses across the Sunshine State. The Institute for Justice (IJ), which supports cottage-food reform across the U.S., strongly encouraged the Florida Legislature to empower home entrepreneurship by passing the bill.

“Eighty-three percent of cottage-food entrepreneurs are women,” said Florida Office Managing Attorney Justin Pearson. “By modernizing Florida’s cottage-food laws and making them consistent with many other states, this reform will create women-owned businesses across the Sunshine State.”

“Selling cottage foods was my lifeline,” Miami-Dade County resident Lizette Galdames said about the period after her husband suffered a stroke. “Without the extra income, we would have lost our home. Instead, we were able to make it through a tough time. I want everyone else to have the same opportunity.”

“We want to thank the lead sponsors, Representative Salzman and Senator Brodeur, for their work on both chambers’ versions of this important bill,” said Pearson. “We also want to thank the bill’s bipartisan group of supporters.”

Florida currently lags behind many states in providing cottage-food producers the freedom they need to start sustainable home businesses. If signed into law by Governor DeSantis, House Bill 663 would reform cottage-food regulations in four critical ways:

  • Allowing foods to be shipped to customers. Since sales are limited to shelf-stable foods, there is no risk in shipping them.
  • Clearing away local red tape. Rules would be standardized statewide, eliminating needlessly inconsistent and unnecessary rules such as what percentage of the home can be used or that only a kitchen can be used to prep and package food.
  • Allowing cottage-food entrepreneurs to have business partners.
  • Raising the $50,000 cap on gross revenue to $250,000. The majority of U.S. states have no cap at all, since not being able to use commercial kitchens or any commercial equipment already limits production.

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, especially for women living in rural areas. Even a small amount of extra income from a cottage food business can be helpful to Florida households making it through the COVID-19 recession.

Newly Approved Bill Clears the Way for Home-Based Businesses

TALLAHASSEE, Fla.—Under a newly passed bill, Floridians will find it easier to start and run home-based businesses. House Bill 403, which has now passed both the Florida House and Senate, standardizes rules for operating businesses inside of a home. The bill bans city and county governments from regulating work that happens strictly inside a residence. Local restrictions on activities that affect the outside of a residence—including parking, noise or emissions—could continue under the new law should it be signed by the governor.

“Half of all businesses are home-based, yet many of Florida’s city and county governments have created unnecessary red tape preventing Floridians from pursuing the American Dream,” said IJ Florida Office Managing Attorney Justin Pearson. “These local barriers were already a problem before the pandemic, but even more Floridians have attempted to start home-based businesses during the past year, either out of necessity or because they felt the time was right. This reform ensures that no matter where they live in the Sunshine State, Floridians can start home-based businesses with confidence. We want to thank the bill sponsors, Senator Perry and Representative Giallombardo, for their work on both chambers’ versions of the bill.”

Arizona Legislature Sends Important Forfeiture Reform Bill to the Governor

The Arizona Senate on Wednesday overwhelmingly approved a bipartisan bill (HB 2810) that would strengthen due process protections for property owners facing civil forfeiture. Under civil forfeiture, law enforcement agencies can seize and keep property without ever charging the owner with a crime. Worse, police and prosecutors can keep 100% of the forfeited proceeds, creating a perverse incentive for abuse. Over the past two decades, Arizona law enforcement agencies forfeited more than $530 million, according to a 2020 report from the Institute for Justice. 

“Civil forfeiture threatens everyone’s property and due process rights,” said Paul Avelar, the Institute for Justice Arizona Office Managing Attorney. “The government can take your car, your home, and your life savings without ever charging you with, much less convicting you of, a crime. HB 2810 makes important reforms to Arizona’s forfeiture laws to protect innocent property owners from government abuse.”

If enacted, HB 2810 would:

  • Require a conviction in criminal court to forfeit property in civil court in most instances. Similar requirements are found in 15 other states;
  • Restore the presumption of innocence by requiring the government to show that owners are not innocent before taking their property, a reform found in 13 other states and the District of Columbia;
  • Ban officers from coercing owners to waive or relinquish their rights to property. Similar requirements are found in three other states;
  • Abolish “non-judicial” forfeiture, a process that allows law enforcement to forfeit property without the case ever going before a judge; and 
  • Create a prompt, post-deprivation hearing for owners to request the return of their property.

Should Gov. Doug Ducey sign the bill, HB 2810 would protect innocent owners like Jerry Johnson. Based in Charlotte, North Carolina, Jerry owns a small trucking company and found a semi-truck he wanted to buy in Phoenix. He scraped together his savings, borrowed money from family and purchased an airline ticket, bringing $39,500 in cash with him. 

But when Jerry collected his checked luggage, Phoenix airport police accused him of money laundering and demanded he sign a “Disclaimer of Ownership” form. Believing he would be arrested and sent to jail if he refused, Jerry signed the “waiver” under duress, not fully understanding that it said he was surrendering his ownership of his money. IJ is now appealing Jerry’s case after a Maricopa County district court ruled that Jerry could not prove he was an innocent owner and didn’t have standing to contest the forfeiture. 

“Jerry did nothing wrong by flying to Phoenix with $39,500 in cash, yet law enforcement is trying to take his money forever without ever charging him with a crime,” Avelar added. “His case is a clear example of how civil forfeiture is abusive and why reforms like HB 2810 are so desperately needed in Arizona.”

HB 2810 would also protect innocent owners like Terry and Ria Platt. Terry and Ria found themselves in the maze of Arizona’s non-judicial forfeiture system when their car was seized after police pulled over their son—who did not own the car—for a window tint violation. The police found cash and a small amount of personal use marijuana, both of which the son said were his. Even though Arizona law does not allow forfeiture of the car for having cash and a small amount of personal use marijuana, prosecutors tried to ignore the law and forfeit the car.

When Terry and Ria submitted paperwork to the prosecutor to try to get their car back, the prosecutors ignored it. The prosecutors then told the court the paperwork didn’t count, without giving a reason why or letting the court see the paperwork, and that Terry and Ria had therefore forfeited their right to their day in court. After months of denying Terry and Ria their car and their rights, the prosecutors only relented and returned their car after IJ sued. But the prosecutors continued to claim that everything they had done to Terry and Ria was legal.

“In the upside-down world of civil forfeiture, the government could presume Terry and Ria to be guilty until they proved their innocence and could even deny them their day in court to present their proof,” explained Avelar. “HB 2810 will go a long way in preventing these kinds of abuses.”

Institute for Justice Praises Passage of Permanent To-go Cocktails Bill

TALLAHASSEE, Fla.—With the passage of Senate Bill 148, Florida restaurants are a big step closer to being able to permanently provide to-go cocktails to customers. An executive order has provided a lifeline to businesses during the pandemic, but it has also proved popular and safe. The Institute for Justice (IJ) supported the permanent change and applauds lawmakers for giving businesses the freedom to serve Floridians in the way that works best for them.

“The executive order’s success has shown that the restrictions on to-go cocktails should not have existed,” said IJ Florida Office Managing Attorney Justin Pearson. “Making this service permanently available to restaurants and their customers is a sensible step. This good bill will help restaurant entrepreneurs and their employees to recover from the pandemic while also providing customers with more options.”

“We want to thank the bill sponsors, Senator Bradley and Representative Tomkow, for their work on both chambers’ versions of the bill. We also want to thank the bipartisan coalition of members who helped on this, including Governor DeSantis for issuing the executive order in the first place.”

Federal Court Upholds $30,000 Fines for Tall Grass

TAMPA, Fla.—In a blow to property rights, on Monday a federal judge upheld fines against Jim Ficken, a Dunedin property owner who was assessed $30,000 in fines and threatened with foreclosure for the offense of tall grass. Jim, who is represented by the Institute for Justice (“IJ”), plans to appeal the district court’s decision. If the decision remains intact, it will mean that local governments can impose maximum fines for petty code violations without first providing notice that the fines are accruing.

Read the decision

The fines at issue stem from a two-month period in the summer of 2018, while Jim was in South Carolina tending to his late mother’s estate.

“I was out of town when code enforcement officials first noticed my grass was too tall,” Ficken said. “They came back almost every day to record the violation, but never notified me that I was on the hook for fines. By the time I found out, I owed them tens of thousands of dollars. Then, they refused to reduce the fines and voted to authorize the foreclosure of my home. I am disappointed that the court sided with Dunedin, but what happened to me is wrong, and I will continue to fight.”

“The city’s behavior toward Jim is outrageous,” said IJ Attorney Ari Bargil. “This ruling emboldens code enforcement departments across the state to impose crippling financial penalties and it empowers them to do so without first notifying a property owner that they are potentially going to be fined.”

The district court concluded that the city was not required to provide advanced notice that Jim was subject to fines. Instead, the court determined that the city afforded Jim constitutionally compliant notice because it eventually told him—after he had already cut the grass—that his property had been under investigation the entire time. Having accepted that the notice provided was sufficient, the district court further concluded that fines at issue—$500 per day for tall grass—were not unconstitutional.

“The Constitution protects against fines that are excessive or ‘grossly disproportional’ to an offense,” said IJ Attorney Andrew Ward. “If $30,000 for tall grass in Florida is not excessive, it is hard to imagine what is. Yesterday’s ruling is wrong on the law, and we will be appealing.”

Founded in 1991, the Institute for Justice is the National Law Firm for Liberty. In addition to its litigation in Dunedin, IJ is challenging excessive fines elsewhere in Florida, as well as in Indiana, Georgia, Wisconsin and New York City.

Arkansas Untangles Hair Stylists from Licensing Red Tape

Arkansas Gov. Asa Hutchinson signed a bill (HB 1746) on Tuesday that will make it much easier for people to enter and work in the beauty industry. Previously, washing, cleansing, blow drying, brushing, or combing hair required a cosmetologist license, a credential that takes at least 1,500 hours of training and can cost tens of thousands of dollars in tuition. 

Under the new law, Arkansans will no longer have to become a licensed cosmetologist to perform any of those simple and harmless services. Instead, aspiring hair stylists who want to wash and style hair need only register with the Department of Health and pay a $10 fee. HB 1746 does not apply to cutting hair or any chemical treatments, like bleaching, coloring, or dyeing. 

“Arkansas has taken an important step to removing unnecessary barriers to work,” said Institute for Justice Legislative Counsel Jessica Gandy. “This reform will create more opportunities for entrepreneurs in the beauty industry and all Arkansans.”

In this area, Arkansas is now a leader in common-sense licensing reform. Only four other states–Arizona, Minnesota, Utah, and Virginia–exempt blow dry bars from cosmetology licenses, while just other 13 states don’t require a license to shampoo hair.

Unfortunately, for many other types of licenses, Arkansas lags far behind. According to a report by the Institute for Justice, Arkansas ranks as the third “most broadly and onerously licensed state” in the country, behind only California and Nevada. In Arkansas, the average license for low- and moderate-income occupations takes 642 days of education and experience, $246 in fees, and passing one exam. 

Newly Passed Bill Eliminates Patchwork of Local Occupational Licenses in Florida

TALLAHASSEE, Fla.—The Legislature today approved a bill that would make it easier for many Floridians to work. House Bill 735 bans Florida municipalities and counties from creating additional licensing requirements for a long list of occupations. For instance, should the bill become law, cities could no longer create new local occupational licenses for handyman services. For most of the listed occupations, any existing local licensing requirements must expire by July 1, 2023.

“Many Floridians struggle to legally offer their services because of a patchwork of local occupational licenses, each with their own costs and requirements,” said IJ Florida Office Managing Attorney Justin Pearson. “Offering simple handyman services could be legal on one side of a street and illegal on the other. But if an occupation is safe in one town, it does not suddenly become dangerous the next town over. We applaud the Legislature for passing a common-sense measure that will make it easier for many Floridians to operate their own businesses or seek employment. We want to thank the bill sponsors, Senator Perry and Representative Harding, for their work on both chambers’ versions of the bill.”

The banned local occupational licenses include, but are not limited to, handyman services; painting; flooring; cabinetry; interior remodeling; driveway or tennis court installation; decorative stone, tile, marble, granite, or terrazzo installation; plastering; stuccoing; caulking; canvas awning; and ornamental iron installation.

Florida Legislature Approves School Choice Scholarship Expansion

TALLAHASSEE, Fla.—The Institute for Justice (IJ), which defends educational choice programs nationwide, applauds the Florida Legislature for its passage of House Bill 7045, legislation that will strengthen choice in the state by simplifying and expanding existing scholarship programs. This includes expanding the Family Empowerment Scholarship and increasing access to the Florida Tax Credit Scholarship—already one of the most popular educational choice programs in the nation. IJ successfully defended the Tax Credit Scholarship in front of the Florida Supreme Court in 2019.

“This legislation is an important and much-needed reform that will help streamline and simplify Florida’s robust system of educational options for parents,” said IJ Attorney Ari Bargil. “IJ is thankful for the work of Senator Diaz, Representative Fine, and the countless other co-sponsors and supporters of this important legislation. As a result of this reform, students across Florida will enjoy better access to a more simplified system of educational options for years to come.”

“The Florida Legislature should be commended for expanding educational opportunity for children in the Sunshine State,” said IJ Senior Attorney Michael Bindas. “Florida has long been a leader when it comes to empowering parental choice in education, and HB 7045 is another big step in that proud tradition. The pandemic has laid bare the many problems with a one-size-fits-all approach to education, and now, more than ever, parents are demanding alternatives to the status quo. Florida is heeding their call.”

Supreme Court Hears Major Donor Privacy Cases

Arlington, Virginia—The U.S. Supreme Court today heard oral argument in the consolidated cases Americans for Prosperity Foundation v. Bonta (No. 19-251) and Thomas More Law Center v. Bonta (No. 19-255), which involve a First Amendment challenge to California’s practice of requiring all charities in the state to turn over a list of their large contributors, without any suspicion of wrongdoing. The Institute for Justice—the national law firm for liberty—filed an amicus brief in the case, urging the Court to hold California’s policy unconstitutional.

IJ Senior Attorney Paul Sherman said, “Charitable donors have many reasons why they may want to keep their identities private, spanning everything from the fear of harassment to the desire to avoid being inundated with charitable solicitations to the simple belief that charitable giving is a private matter. Today’s argument showed that California has no justification for its blanket policy of forcing charities to disclose their large donors to the state. The evidence in the case shows that 46 states police their charitable solicitation laws without this requirement and that California itself has used this information in at most 10 investigations.”

Charities that solicit contributions in California are required to register with the state and submit a copy of their IRS Form 990, but that document itself does not disclose the identity of any charitable donors. In 2010, the state began requiring charities to also submit a copy of Schedule B to Form 990, a document that lists the names and addresses of major donors to charitable organizations. The Americans for Prosperity Foundation and the Thomas More Law Center both challenged the requirement as a violation of the First Amendment. After a trial court held the disclosure requirement unconstitutional, the 9th U.S. Circuit Court of Appeals reversed.

Sherman added, “California’s defense that it will not make this information public rings hollow. Charities not only fear what will happen if this information becomes public, they also reasonably fear what the government itself might do with this information. If the government truly needs this information in a specific case, it can subpoena it as part of a legitimate investigation. What it cannot do is warehouse this information about tens of thousands of charities based on the possibility that it may someday be useful.”

Sherman concluded, “The 9th Circuit upheld these disclosures on the ground that they were fundamentally no different from the sorts of disclosures the Supreme Court has upheld in the context of campaign finance. That is a dangerous and expansive precedent that must be reversed. The Court has for decades provided the highest level of First Amendment protection to charitable activities while providing a shamefully low level of protection to First Amendment rights in the context of political campaigns. But the Court’s failure to properly defend the right of political speech should not become the exception that swallows the general rule that people have the right to privacy of association.”

About the Institute for Justice

Through strategic litigation, training, communication, activism, legislative outreach and research, the Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of society. IJ litigates to secure economic liberty, educational choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.

Supreme Court Refuses to Hear Case Challenging Federal Forfeiture Abuse

Today, the U.S. Supreme Court refused to hear a case that would have forced the government to fix one of the most basic and outrageous abuses in civil forfeiture: the inability of property owners to have their day in court shortly after their property is seized by police. As the result of this abuse, property owners routinely wait for months or years before they finally see a judge and have a chance to get back what the government took from them without charging, let alone convicting them of a crime.

What happened to Gerardo Serrano is a case in point. He was driving his brand-new F-250 across the U.S.-Mexico border when the border agents stopped him and asked him to give them the password to his phone. Apparently they did not like that Gerardo was taking photos to share the moment with his family on social media. When Gerardo offered to delete the photos but refused to give up the password, the agents forced him out of the truck and searched it. Finding only a handful of low-caliber bullets (and no gun) the agents called them “munitions of war” and seized the truck. After detaining Gerardo for several hours, they let him go home, on foot. Gerardo wanted to challenge the seizure as soon as it happened. But he had to wait for two years, with no response from the government. Finally, tired of waiting, Gerardo partnered with the Institute for Justice (IJ) and sued the Border Patrol. The case argued that the federal agents violated his constitutional rights by not providing him with an opportunity to see a judge. He did so not only on behalf of himself, but on behalf of all U.S. citizens whose cars were taken for civil forfeiture at the border. Facing a class action lawsuit, the Border Patrol returned Gerardo’s truck, claiming “no harm, no foul.”

Gerardo continued his lawsuit against the Border Patrol, but both the trial court and the 5th U.S. Circuit Court of Appeals ruled that a failure to provide U.S. citizens with an opportunity to challenge the seizure of their cars does not constitute a violation of Due Process. This ran contrary to what other circuit courts have held, so Gerardo and IJ asked the Supreme Court to weigh in on the issue, but the Court refused to do.

“This is no doubt very disappointing” said Rob Johnson, an IJ senior attorney who led the certiorari effort before the U.S. Supreme Court. “But we are not done fighting. According to the Supreme Court precedent, the history of this country, and the basic norms of decency, the government cannot take your car without providing you with a prompt opportunity to challenge the seizure. This issue will continue knocking on the Supreme Court’s door.”

“When the agents seized my truck, I couldn’t believe it was happening to me,” said Gerardo Serrano. “And now I’m back in the Twilight Zone, thinking this can’t be real. How can the courts just ignore this? And how can an ordinary person afford to wait years after the government takes their car?”

While lengthy delays are common in most civil forfeiture cases, the problem is particularly acute when government seizes property at the border. Although federal law generally requires the government to file a forfeiture case within 150 days of a seizure, even that lengthy deadline does not apply to customs seizures. That loophole is sometimes referred to as the “customs carve-out.”

“Particularly now that the Supreme Court has declined to act, Congress needs to step up,” said IJ Attorney Anya Bidwell. “Congress needs to close the customs carve-out, and Congress needs to enact comprehensive civil forfeiture reform.”

Civil forfeiture is a fundamentally un-American concept which allows local, state and federal law enforcement to seize and keep billions of dollars in cash, cars, homes and other property without charging, let alone convicting anyone of a crime. Worse, law enforcement is incentivized to do this, as they generally keep the proceeds of the seizures for their benefit.

“The Institute for Justice is committed to fighting this pernicious practice,” said Scott Bullock, president and general counsel for the Institute for Justice. “We will continue to stand by Gerardo and anyone else who was wronged by civil forfeiture.”

Gerardo agreed: “I am going to do whatever it takes to make this change.”

Florida Barbers Free to Leave the Shop Under Newly Approved Bill

TALLAHASSEE, Fla.—A bill approved today by the Florida Legislature would allow Sunshine State barbers to cut hair in places other than registered barbershops. House Bill 855 received unanimous support in both the Florida House and Senate. The Institute for Justice supported the legislation, which expands on the sweeping licensing reform passed last year. That reform included a provision allowing cosmetologists to cut and style hair outside of salons, for instance, on the site of a wedding or a party. HB 855 allows barbers and their customers to enjoy similar options.

“The Florida legislature took a sensible step to give barbers the ability to meet their customers where they need a haircut, not just in a barbershop,” said IJ Florida Office Managing Attorney Justin Pearson. “With the governor’s signature, barbers would be able to cut hair at nursing homes, hospitals and in homes. Cosmetologists have already shown that this freedom provides huge benefits to consumers, especially during the pandemic. Barbers and their customers will now enjoy that same freedom. We want to thank the bill sponsors, Senator Stewart and Representative Morales, for their work on both chambers’ versions of the bill.”

Charlotte Trucking Company Owner Fights for $39,500 Police Took from Him at Phoenix Airport

PHOENIX—Jerry Johnson flew to Phoenix with $39,500 and the intention of returning home with a semi-truck from an Arizona auction house, but instead he returned to Charlotte without his money and without a truck. After his $39,500 in cash was seized by law enforcement at the Phoenix airport, Jerry fought for its return in court.

Under Arizona law, there is a two-step process. First, the property owner has the burden to show ownership, and, second, the government has the burden to prove that the money was connected to a crime. But instead, an Arizona Superior Court judge combined these two steps and placed the whole burden on Jerry and none on the government. The judge ruled that Jerry failed to prove he owned the cash that was seized from him because he could not prove the cash wasn’t connected to any crimes. Now, Jerry is teaming up with the Institute for Justice to appeal the civil forfeiture of his money and ensure that no one has to prove their innocence to keep their own property.

“Jerry Johnson did nothing wrong by flying to Phoenix with cash, yet law enforcement is trying to keep his money without ever charging him with a crime,” said IJ Senior Attorney Dan Alban. “In Arizona, prosecutors are required to prove through clear and convincing evidence that money is connected to criminal activity before the property can be forfeited. But instead of holding the state to its burden of proving guilt, the court required Jerry to prove his own innocence. If the result in Jerry’s case stands, it would create a dangerous loophole, undermining Arizona’s efforts to protect property owners.”

Jerry Johnson owns a small trucking company, lives outside Charlotte, North Carolina, and was looking to purchase a third truck for his fleet. After finding the model of a Peterbilt semi-truck he had been looking for at the Phoenix location of Ritchie Bros. auto auction, he scraped together his savings, borrowed money from family and purchased an airline ticket. Hoping to cut the best possible deal on the truck, Jerry brought $39,500 in cash with him, splitting it between his carry-on and checked luggage.

When Jerry collected his checked luggage, he was met by Phoenix airport police, who questioned him, searched his bags and accused him of laundering money for drugs. As is often the case, Transportation Security Administration luggage screeners apparently alerted Phoenix police to the presence of cash in Jerry’s luggage. Jerry was interrogated and told that unless he signed a “Disclaimer of Ownership” form, he would be arrested. Not fully understanding that the form said he was surrendering his ownership of his money, Jerry signed this on-the-spot “waiver” under duress, believing he would be arrested and sent to jail if he refused.

“I flew to Phoenix thinking I could get a good deal on a truck that would allow me to expand my business,” said Jerry. “But instead, the police took my money without ever charging me with a crime. It’s been a struggle to lose my savings, and now my business is barely getting by. I’m fighting for my money, but I’m also fighting because this should never happen to anyone else.”

IJ is currently appealing Jerry’s forfeiture case to reverse the court’s improper finding that Jerry did not own the money, because he couldn’t prove his innocent ownership of the money. The judge did not require the government to prove anything or to meet its burden of showing a connection with criminal activity. Neither Jerry nor any other individual has been charged with a crime connected with the money.

“Jerry’s case demonstrates again the basic injustice of civil forfeiture,” said IJ Attorney Alexa Gervasi. “Police and prosecutors should not be able to take property when they haven’t even charged anyone with a crime. Arizona lawmakers should push forward with proposed reforms and stop the incentives law enforcement has today to seize and forfeit money without probable cause.”

The Institute for Justice protects property rights nationwide and has defended flyers across the United States after law enforcement seized their cash. A class action lawsuit against the TSA and Drug Enforcement Administration was recently granted an early victory in Pittsburgh, Pennsylvania. When IJ sued on behalf of flyers in Houston and Cleveland, the government returned their money. IJ also documented the scale of airport forfeiture in a 2020 report “Jetway Robbery? Homeland Security and Cash Seizures at Airports.” The report showed that Homeland Security agencies alone seized over $2 billion from flyers between 2000 and 2016.

Innocent Property Owners Will be at Risk if Proposed Forfeiture Reforms Are Gutted

PHOENIX—Proposed legislation to reform civil forfeiture practices in Arizona, House Bill 2810, was on a swift path to confirmation after nearly unanimous support in the House. Now, however, a proposed amendment in the Senate could gut the proposed reforms, encouraging abusive law enforcement practices rather than correcting them. The Institute for Justice (IJ) opposes the amendment and wants to bring attention to a recent example of abuse that illustrates what is at stake.

“Jerry Johnson did nothing wrong by flying to Phoenix with $39,500 in cash, yet law enforcement is trying to take his money forever without ever charging him with a crime,” said IJ Managing Attorney Paul Avelar. “If forfeiture proponents get their way and amend HB 2810, it will encourage Arizona law enforcement to continue targeting people like Jerry, who need to travel with cash for legitimate reasons such as purchasing vehicles for their business. A bill meant to correct injustices could end up encouraging them if amended poorly.”

Jerry Johnson lives outside Charlotte, North Carolina and owns a small trucking company. He was looking to purchase a third truck for his fleet. After finding the model of a Peterbilt semi-truck he had been looking for at the Phoenix location of Ritchie Bros. auto auction, he scraped together his savings, borrowed money from family and purchased an airline ticket. Hoping to cut the best possible deal on the truck, Jerry brought $39,500 in cash with him, splitting it between his carry-on and checked luggage. Based on what happened in Phoenix, TSA luggage screeners apparently alerted Phoenix police to the presence of cash in his luggage.

When Jerry collected his checked luggage, he was met by Phoenix airport police, who questioned him, searched his bags and accused him of laundering money for drugs. Jerry was interrogated and told that unless he signed a “waiver” form, he would be arrested. Alone and far from home, Jerry signed the “waiver” under duress, not fully understanding that it said he was surrendering his ownership of his money but believing he would be arrested and sent to jail if he refused to sign.

IJ is currently appealing Jerry’s forfeiture case after a Maricopa County district court ruled that Jerry could not prove his innocent ownership of the money that was seized from him and thus did not have standing to contest the forfeiture. Neither Jerry nor any other individual has been charged with a crime connected with the money.

Jerry’s case potently illustrates why there is momentum to pass HB 2810, which adopts common-sense reforms that have already been adopted in other states. The bill:

  • Requires a criminal conviction before forfeiting property;
  • requires government to show an owner knew about criminal activity, rather than requiring owners to prove their own innocence;
  • prevents the use of “waivers” that law enforcement uses to coerce people into giving up their rights under threat of jail time;
  • eliminates non-judicial forfeiture to ensure every property owner can have their day in court; and
  • creates a prompt hearing to help ensure a person’s rights are protected without delay.

HB 2810 was approved by the House on a 57-2 vote and the Senate Judiciary Committee approved the bill 8-0. But law enforcement agencies sprang a last-second amendment demand that would gut the reforms and has prevented the bill from receiving a final vote. Among the amendments demanded are:

  • Allowing the use of “waivers” to circumvent the conviction requirement;
  • eliminating the conviction requirement in any case involving cash, bank accounts, etc. of more than $10,000; and
  • limiting the time in which a person can ask for a hearing to get their property back.

Jerry’s case demonstrates how people can lose their money to forfeiture even when they are never charged with any crime. If these amendments to HB 2810 are made, they would perversely encourage Arizona law enforcement to pressure property owners to sign on-the-spot “waivers,” and create a loophole in the conviction requirement, which would not apply to cases like Jerry’s that involve seizures of more than $10,000. Jerry’s story could become distressingly common if these amendments are allowed.

Institute for Justice Urges Protections for Private Property Owners in Supreme Court Pipeline Fight

Arlington, Virginia—Today, the Institute for Justice (IJ) filed an amicus brief in PennEast Pipeline Company, LLC v. New Jersey, a U.S. Supreme Court case about the scope of private companies’ powers to take land through eminent domain to build pipelines under the Natural Gas Act. IJ’s brief urges the Court to reject arguments made by the Solicitor General of the United States that would prevent landowners across the country from defending their basic property rights. The case is set for argument before the High Court on April 28, 2021.

The PennEast case itself has little to do with private property rights—the dispute between the parties is about whether New Jersey, as a state, should be immune from an eminent domain lawsuit in federal court. A ruling for New Jersey would not limit private companies’ longstanding but deeply controversial ability to take private land to build pipelines. But the Solicitor General has urged the Court to avoid deciding the case on the merits and instead adopt a new reading of the Natural Gas Act that would prevent courts from hearing arguments like this at all. Under the Solicitor General’s view, once the federal government approves a pipeline, affected property owners must immediately challenge the legality of that pipeline—and that failing to do so successfully means that a court hearing a later eminent domain case has no jurisdiction to hear any arguments about whether eminent domain is being used lawfully. That understanding of the law has been applied in other context—most famously when a convent of nuns was told it was not allowed to make arguments under the Religious Freedom Restoration Act to fight off condemnation of the nuns’ land—but it has never been adopted by the Supreme Court.

“The government’s argument is basically that federal courts hearing these cases have jurisdiction to take your land away from you but no jurisdiction to decide whether your land is being taken unlawfully,” explained IJ Senior Attorney Robert McNamara, counsel of record on the brief. “But that is simply backwards. If a judge is going to order you to give up your property, that judge absolutely needs to be able to hear arguments about why you should get to keep it.”

IJ’s brief draws on cases from around the country, including cases won by the Institute for Justice itself won, to explain that landowners facing eminent domain can and do persuade courts to let them keep their land when it is threatened by eminent domain. There is nothing in the Natural Gas Act that suggests it gives pipeline companies the power to strip property owners of their right to do exactly the same thing.

“It is not unusual to see the government try to resort to procedural tricks to stop people from fighting the taking of their property,” said IJ Litigation Director Dana Berliner. “But the government now is trying to put even more barriers in front of people whose land is threatened by eminent domain—and doing it in a case where private landowners are not even parties. IJ is standing up for those absent owners and their right to fight to keep what they have worked so hard to own.”

New Mexico Enacts Landmark Bill Against Qualified Immunity

Today, New Mexico Gov. Michelle Lujan Grisham signed a first-of-its-kind bill that would let individuals sue government agencies for violating their rights. Critically, the new legislation, the New Mexico Civil Rights Act (HB 4), would eliminate “qualified immunity” as a legal defense. 

Under qualified immunity, government officials can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law. Created by the Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in Section 1983, the federal statute that authorizes civil rights lawsuits against government agents. 

“For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights,” said Institute for Justice Attorney Keith Neely, who submitted testimony in favor of the bill. “With the governor’s signature, New Mexico has made enormous strides toward holding law enforcement officers and other government employees accountable.”

Based on recommendations from the New Mexico Civil Rights Commission, and hewing closely to IJ’s model legislation, HB 4 creates a new way to hold government agencies accountable in state court. If local or state government employees violate constitutional rights while working within the scope of employment, victims can sue their government employer for damages. The Act does not create personal liability for government employees. Instead, agencies and municipalities are required to fully cover all legal costs for their employees. HB 4 also caps claims at $2 million (including attorney’s fees). 

Long an obscure legal rule, qualified immunity now faces widespread opposition in the wake of the killing of George Floyd by Minneapolis police officers. Over the summer, Colorado became the first state to pass a law blocking qualified immunity from being used as a defense in court. However, unlike the Colorado bill, New Mexico’s reform would apply to all government employees, not just law enforcement officers. Reforms are also pending in Louisiana, New Hampshire, and Texas. 

HB 4 earned the support of a broad, bipartisan coalition that includes the Institute for Justice, the ACLU, Americans for Prosperity, the Innocence Project, and the National Police Accountability Project. The coalition issued a letter urging the legislature to take this “unique opportunity to lead the country in civil rights reform.” 

“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” noted IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”

Justice Delayed is Justice Denied: How Qualified Immunity Allows Government Officials to Delay Access to Justice

Late last week, attorneys for three Castle Hills, Texas, officials appealed a ruling holding that they are not immune from suit. The officials, who were sued for throwing a 72-year-old city councilwoman in jail in an attempt to silence her criticism of the city, will ask the federal appeals court to grant them qualified immunity, even though the district court just issued a ruling denying it. This is a common and controversial tactic used by government officials to evade accountability for illegal or unconstitutional actions.

The move is likely to delay the case by at least a year, if not longer.

The lawsuit seeks to vindicate the rights of Sylvia Gonzalez, a former member of the Castle Hills city council. Sylvia helped organize a citizen petition calling for the removal of the city manager, which didn’t sit well with his friends in the city. To bully her into silence and punish her for speaking out, a group of powerful people who controlled the city government engineered a retaliation campaign that culminated in Sylvia being thrown in jail, stripped of her elected position, and publicly defamed. The actions taken by the city and its officials clearly violated Sylvia’s First Amendment rights, so with the help of the Institute for Justice, she sued to hold the officials accountable.

In response to the lawsuit, the officials claimed they were immune, but in March U.S. District Judge David Alan Ezra disagreed. He ruled that the doctrine of qualified immunity did not protect the officials and that the case could move forward to trial.

Now, the government defendants are appealing. That’s because, in addition to the protection qualified immunity affords all government workers, it also gives them something extremely rare in lawsuits: an immediate right to appeal. Normally, when a litigant loses an attempt to dismiss a lawsuit, as the government defendants did in Sylvia’s case, the case proceeds until it is finished. Only then can a losing party appeal to a higher court.

But the normal rules do not apply to the government, especially not when qualified immunity is involved. Because of the special treatment given to qualified immunity by the U.S. Supreme Court, government workers who are denied its protection can immediately ask a higher court to review that denial. Essentially, the government gets to ask for a rematch before the first game is even over. Not only is that unfair—literally, a private defendant in precisely the same position would not be permitted to immediately appeal a similar decision—it allows the government to greatly extend the duration and cost of litigation, which often causes plaintiffs to give up. Regular people like Sylvia can seldom afford to pay lawyers for the years that it can take qualified immunity cases to proceed. That is why so many cases that survive long enough to reach a judgment are litigated pro bono by public-interest law firms like the Institute for Justice.

“I am ready to take this uphill fight to the federal appeals court, or even the Supreme Court, if that what it takes, but I shouldn’t have to do that before a jury of my peers has heard my story,” said Sylvia Gonzalez, the plaintiff in the case. “They silenced me once, but with IJ standing behind me I am ready to stand up for my constitutional rights and the rights of others.”

This little-known loophole is one of the most pernicious aspects of qualified immunity. Not only do government defendants get to hide behind qualified immunity even when they intentionally violate the law, they also get to ask a higher court for a second look at qualified immunity if they lose in the trial court. And for a third look too—by the U.S. Supreme Court—if a court of appeals does not agree with them.

“Sylvia deserves her day in court, but because of the government’s claim of immunity, it is likely to take years before a jury of her peers will hear her case,” explained Institute for Justice Attorney Anya Bidwell. “It is hard to understand why in addition to all the protections qualified immunity already provides, even when government officials lose on qualified immunity—which is no small feat—they get an immediate do-over. It seems like a lot of work aimed at little more than depriving someone like Sylvia of her day in court.”

This case is a part of IJ’s Project on Immunity and Accountability, which is dedicated to fighting against qualified immunity and other doctrines that make it difficult to vindicate individuals’ constitutional rights.

Qualified Immunity: Where Did the Controversial Judicial Doctrine Come From?

Arlington, Va.—Qualified immunity is the controversial judicial doctrine that allows law enforcement officers and other government officials to escape from lawsuits in which people allege that their constitutional rights were violated. Calls for the Supreme Court and lawmakers to reform or eliminate qualified immunity have echoed from across the political spectrum. But because qualified immunity was created through a series of judicial actions over decades rather than by a single law, it can be difficult to understand its origins.

The Institute for Justice (IJ) recently released a new episode of the “Bound By Oath” podcast that clearly explains the critical Supreme Court decisions that form the foundation of qualified immunity. The episode also delves into how the doctrine has been applied in several recent cases, including one in which now-Supreme Court Justice Amy Coney Barrett ruled against granting qualified immunity.

“To understand qualified immunity and how it works, you have to see how it came to be in the first place,” said Director of IJ’s Center for Judicial Engagement Anthony Sanders. “Some of the foundational cases that built the doctrine had little to do with police, yet today the doctrine is primarily applied to allow police to escape lawsuits before they go to a jury.”

IJ Attorney Anya Bidwell, a leader of IJ’s Project on Immunity and Accountability, explained: “There was little historical basis for the Supreme Court’s invention of its current qualified immunity standard in 1982, and none for what it has become today. We hope that by uncovering policy-based, ahistorical roots of qualified immunity, we can encourage judges to engage more deeply in cases that come before them and encourage lawmakers to consider legal reforms that could give people a clear path to justice when their rights are violated.”

Under qualified immunity, government workers can only be held accountable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. The Supreme Court has not been very clear about what it means for the law to be clearly established. Is it enough that there is a caselaw pronouncing a general act—like exceeding a consent to enter someone’s home—unconstitutional? Or do you need a case specifically stating that exceeding this consent through the same means as in your situation—say teargassing a house instead of entering through a door—is unconstitutional? Due to this uncertainty, there is quite a bit of variance in lower-court qualified immunity decisions. Two officers committing nearly identical violations of rights may get two different rulings, depending on the judge or the panel they draw.

As John Ross, producer and narrator of Bound By Oath, summarized the latest episode: “Ever since the Supreme Court invented qualified immunity, it has become harder and harder for victims of often truly shocking unconstitutional misconduct to get their day in court. The bedrock principle of our legal system that there must be a remedy when a right is violated no longer seems to apply.”

While qualified immunity stands as a barrier to lawsuits over constitutional rights, the right to sue state officials for violations of the U.S. Constitution at all exists primarily thanks to Section 1983, a law that is celebrating 150 years since its passage. IJ and the Center for Judicial Engagement will mark this anniversary with a free webinar April 20 at noon EDT: “Outrage Legislation: Civil Rights & Section 1983 at 150 Years.” More information and link to register HERE.

Section 1 of the 1871 Ku Klux Klan Act—ultimately codified as Section 1983—allowed people to sue individuals who deprived them of their constitutional rights. At the time, black Americans were routinely subject to violence and harassment at the hand of KKK members. State officials often looked the other way or enabled crimes, leaving individuals with no way to seek justice. The webinar will discuss the history of Section 1983, how it lay dormant for nearly a century, how it was revived by the Supreme Court in 1961 and how it is used today.

IJ’s Center for Judicial Engagement (CJE) educates the public about the proper role of the courts in enforcing constitutional limits on the size and scope of government. CJE sponsors events where judges, professors, members of the bar and the general public come together to discuss the issues of the day in relation to judicial engagement. It sponsors scholarship, op-eds and other writing on our constitutional liberties and the courts’ role in protecting them.

Mental Health Professional Sues New York for the Right to Teleconference with Her Client

ALBANY, N.Y.—The COVID-19 pandemic has taken a toll on the mental health of New Yorkers. According to the New York State Health Foundation, more than one-third of New Yorkers reported poor mental health in 2020, three times the average before the pandemic. Yet despite the demand for mental health services, the state could soon make it again illegal for residents to receive teletherapy from out-of-state counselors. Now, a Virginia-licensed counselor is suing the state of New York before it stops her from seeing one her clients.

Elizabeth Brokamp lives in the Virginia suburbs outside Washington, D.C., and operates a counseling practice that is completely online. When one of her clients moved to New York, she was able to continue seeing them only because the Empire State waived its restrictions on teletherapy from counselors without a New York license. When that waiver expires, Elizabeth will be forced to end therapy with her client. Elizabeth’s federal lawsuit, filed with the Institute for Justice (IJ), seeks to protect her First Amendment right to provide talk therapy in New York.

“New York could do tremendous damage to the mental health of New Yorkers by suddenly ending the relationships they have built with counselors online,” said IJ Attorney Jeffrey Redfern. “During the pandemic, New York wisely suspended barriers to online therapy without a state license, but only on a month-to-month basis. But restrictions on talking over the internet are not constitutional to begin with, and Elizabeth Brokamp has a First Amendment right to continue seeing her client.”

The demand for teletherapy has greatly increased during the pandemic, with many Americans looking for a safe way to cope with stress related to sickness, lockdowns and economic hardship. And while video conferencing services have allowed many employees to continue working from home, a patchwork of regulations confronts professionals wishing to practice teletherapy and telemedicine.

Elizabeth Brokamp has worked as a professional counselor for over 20 years, and she holds a master’s degree in Counseling Psychology from Columbia University. She is currently working toward a doctorate and holds certifications in several counseling specialties, including teletherapy. In December 2020, Elizabeth sued the District of Columbia over a similar restriction on teletherapy, which bars her from taking on new clients in D.C.

“Continuity of care is critical in counseling, yet when the pandemic ends New York could end client relationships across the state,” said Elizabeth. “People should be able to engage with the counselor who can best meet their needs wherever they live and continue seeing that counselor if they move across the country. I hope that my lawsuit can remove senseless barriers to teletherapy, in New York and across the United States.”

Elizabeth’s legal claim is simple: Counselors talk to people about how to deal with problems in their lives, and, under the First Amendment, the government cannot cite counselors for talking. New York’s licensing law requires a mental health counseling license for anyone who speaks with another person to “ameliorate” any “problems or disorders or behavior, character, development, emotion, personality or relationships by the use of verbal … methods.” That law is staggeringly broad; read literally, it would sweep up friends, family members, pastors, self-help gurus and life coaches.

In practice, however, only professionals like Elizabeth are subject to the restriction on their speech. If Elizabeth had no training, she could provide her services as an unlicensed “life coach.” It is precisely because of Elizabeth’s qualifications and experience—the very reasons clients want her help—that New York bars her from talking. New York cannot constitutionally require a license to talk to people about their feelings, as such a restriction would sweep far too broadly, and it cannot constitutionally prohibit Elizabeth’s speech just because she is effective at that type of speech.

“New York’s licensing law makes it illegal for people with qualifications and expertise to speak with people about their problems,” said IJ Senior Attorney Rob Johnson. “This doesn’t make sense and it is unconstitutional. The government cannot restrict someone’s speech just because they have specialized training while allowing others to do the exact same thing. Unfortunately, there are similar restrictions across the U.S., and they stand as a barrier to many people getting the counseling they seek.”

This case is part of IJ’s broader initiative to protect occupational speech. In 2010, IJ successfully challenged the District’s licensing requirement for tour guides as a violation of the First Amendment, and IJ successfully represented a psychologist who was prosecuted by Kentucky’s psychology licensing board for distributing a newspaper advice column in the state without a license. IJ is also currently challenging a Texas law forbidding licensed veterinarians from giving online advice, as well as Arizona’s attempt to prohibit a trained engineer from truthfully describing himself as an “engineer.”

Homemade Food Businesses Could Boom if Florida Legislature Passes Sensible Reforms

Tallahassee, Fla.With the Florida House of Representatives’ passage of House Bill 663, Florida moves one step closer to reforming rules on selling shelf-stable homemade food, commonly known as cottage foods. Florida law currently includes outdated requirements that do not exist in most states, and this overdue reform could lead to the creation of new small businesses across the Sunshine State. The Institute for Justice (IJ), which supports cottage foods reform across the U.S., strongly encourages the Florida Legislature to empower home entrepreneurship by passing the bill. This will happen if the Florida Senate passes the bill’s Senate companion, SB 1294. 

Eighty-three percent of cottage-food entrepreneurs are women, said Florida Office Managing Attorney Justin Pearson. This reform will create hundreds, and possibly thousands, of women-owned businesses around the Sunshine State. 

“Selling cottage foods was my lifeline,” Miami-Dade County resident Lizette Galdames said about making ends meet after her husband suffered a stroke. “Without the extra income, we would have lost our home. Instead, we were able to make it through a tough time. I want everyone else to have the same opportunity.” 

“We want to thank the lead sponsors, Representative Salzman and Senator Brodeur, for doing a terrific job advocating for this important bill,” said Pearson. “We also want to thank the bill’s large and bipartisan group of supporters, including Speaker Sprowls.” 

Florida currently lags behind many other states in providing cottage foods producers the freedom they need to start sustainable home businesses. House Bill 663 and its companion, Senate Bill 1294, would reform cottage foods regulation in four critical ways: 

  • Allowing foods to be shipped to customers. Since sales are limited to shelf-stable foods, there is no risk in shipping them.  
  • Clearing away local red tape. Rules would be standardized statewide, eliminating needlessly inconsistent and unnecessary rules such as what percentage of the home can be used or that only a kitchen can be used to prep and package food.
  • Allowing cottage-food entrepreneurs to have business partners.
  • Raising the $50,000 cap on gross revenue to $250,000The majority of U.S. states have no cap at all, since not being able to use commercial kitchens or any commercial equipment already limits production. 

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, especially for women living in rural areas. Even a small amount of extra income from a cottage food business can be helpful to Florida households making it through the COVID-19 recession.  

Major Class Action Lawsuit Against TSA and DEA Over Airport Seizures Achieves First Round Victory

PITTSBURGH—When travelers go online to find out whether it is legal to fly with cash, the government tells them that there are no restrictions on traveling with any amount of money on domestic flights. What it does not tell flyers is that, upon seeing cash, Transportation Security Administration (TSA) screeners will detain them and turn them over to law enforcement, who will take their money without any cause for suspicion and without filing any criminal charges. Now, a Fourth Amendment, class action lawsuit filed by the Institute for Justice (IJ) to end these unconstitutional practices by the TSA and the Drug Enforcement Administration (DEA) will move forward in federal court after a judge rejected the government’s motion to dismiss.

“TSA and DEA routinely violate Americans’ Fourth Amendment rights at airports across the country by detaining them for doing something completely legal: flying with cash,” said IJ Senior Attorney Dan Alban. “Seizing and forfeiting someone’s savings should not be done lightly, yet we’ve documented how easy it is for law enforcement to take money at airports without any evidence of a crime. Now, thanks to our class action lawsuit, we are going to uncover the truth behind how and why the government is targeting innocent flyers, and ultimately put an end to this predatory practice.”

The class action lawsuit was filed in January 2020 on behalf of Terry Rolin and his daughter Rebecca Brown. TSA and DEA officials seized Terry’s life savings of over $82,000 from Rebecca as she was flying from Pittsburgh to her home outside Boston, where she intended to open a joint bank account to help care for her father. After IJ filed the lawsuit, DEA returned Terry and Rebecca’s money, but only after holding it for over six months without any accusations of criminality, let alone criminal charges.

Additional named plaintiffs joined the suit in July 2020. DEA seized $43,000 from Stacy Jones at the Wilmington, North Carolina, airport in May 2020 as she was flying home to Tampa. The agency returned her money after she joined the lawsuit and nine months after it was seized. Once again, criminal charges were never filed.

“TSA’s and DEA’s unconstitutional conduct across the country suggests that the agencies are more interested in seizing cash than securing safety,” said IJ Attorney Jaba Tsitsuashvili. “And these seizures subject people to a confusing bureaucratic process, without an attorney provided, where a single misstep could mean losing their life savings forever. Even those who succeed in getting their money returned are deprived of it for months or years, often upending their lives. No one should lose their money without a criminal conviction.”

U.S. District Court Judge Marilyn Horan yesterday rejected the government’s motion to dismiss the plaintiffs’ three class action claims. Those claims are 1) that the TSA exceeds its statutory authority by detaining travelers and their cash after the security screening has ended; 2) that the TSA violates the Fourth Amendment by detaining travelers and their cash without reasonable suspicion of criminality; and 3) that the DEA violates the Fourth Amendment by detaining travelers without reasonable suspicion and seizing their cash without probable cause.

National School Choice Advocate Stands Ready to Defend Kentucky’s New Educational Choice Program Against Anticipated Legal Challenge

Frankfort, Ky.—This evening, the Institute for Justice (IJ) announced that it stands ready to defend against an anticipated legal challenge to Kentucky’s newly enacted Education Opportunity Account (EOA) Program by opponents of educational choice. Earlier this evening, the Kentucky General Assembly overrode Gov. Andy Beshear’s veto of the legislation creating the program.

The EOA Program authorizes a tax credit for private donations to nonprofit account-granting organizations, which, in turn, provide funds to private accounts for low- and middle-income families to use for expenses incurred in the education of their children. The General Assembly created the program “to give more flexibility and choices in education to Kentucky residents and to address disparities in educational options available to students.”

“The Education Opportunity Account Program provides desperately needed options and opportunity to Kentucky families,” said IJ Senior Attorney Michael Bindas. “The program is perfectly constitutional, and the Institute for Justice stands ready to defend it.”

IJ Attorney Milad Emam added, “The need for educational opportunity is greater now than ever, and the Institute for Justice will not let opponents of choice take it away.”

IJ is the nation’s leading legal defender of educational choice programs, having won numerous litigation fights, including three at the U.S. Supreme Court, the most recent of which was the landmark decision Espinoza v. Montana Department of Revenue in 2020. IJ is currently defending choice programs in Nevada, North Carolina and Tennessee and currently challenging the exclusion of religious options from choice programs in Maine, New Hampshire and Vermont.

Supreme Court Rules a Police Shooting Is a “Seizure” Officers Must Justify Under the Fourth Amendment

Arlington, Virginia—Today, the Supreme Court held in Torres v. Madrid that a woman who was shot in the back by plain-clothed police officers may proceed with her Fourth Amendment challenge to the shooting. In a 5–3 decision, the Court rejected the officers’ argument that Roxanne Torres was not “seized” by their bullets merely because she was not immediately killed or incapacitated.

“The Supreme Court’s decision in Torres v. Madrid is a win for government accountability and our constitutional rights,” said Institute for Justice (IJ) Attorney Jaba Tsitsuashvili. “The Court made clear that the Fourth Amendment’s protection of our personal security applies whenever police use physical force to restrain a person.” In a friend-of-the-court brief, IJ joined a coalition of civil liberties groups to explain how a contrary holding would immunize a wide range of police violence from constitutional scrutiny.

The case arises from a lawsuit brought by Torres against two New Mexico State Police officers. Torres was sitting in her car when two people she could not identify as police officers tried to open her locked car door. The officers were apparently in the area looking for someone else. Thinking she was being carjacked, Torres started driving away. In response, the officers fired a barrage of bullets—two into Torres’ back and thirteen into her car—that left her permanently injured. Torres, wounded but able to continue driving, eventually got herself to a hospital.

The 10th U.S. Circuit Court of Appeals tossed Torres’ case against the officers out, holding that because their bullets did not immediately incapacitate Torres, they did not “seize” her despite their intentional use of deadly force. The Supreme Court rightly reversed.

“We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued,” wrote Chief Justice John Roberts for the Court. Relying on the common law of arrest, the Court held that for physical force, it is the officers’ conduct—not the victim’s response—that dictates whether a seizure has occurred.

The Court rejected the idea, laid out by three dissenting Justices, that old cases on the topic could not govern the officers’ use of bullets, because those cases dealt only with the “laying on of hands.” In rejecting this “artificial line,” the Court recognized that a seizure “can be as readily accomplished by a bullet as by the end of a finger.” It went on to explain: “We will not carve out this greater intrusion on personal security from the mere-touch rule just because founding-era courts did not confront apprehension by firearm.”

“The Supreme Court’s decision today is an important step towards securing Americans’ persons and property,” said IJ Senior Attorney Robert Frommer. “It wisely recognizes that government actors must justify their actions when they use force to violate our personal security, even if that force does not lead to our immediate incapacitation. And as the Court correctly emphasized, the Fourth Amendment’s protections apply no matter what type of force those actors use.”

“Americans can only be secure in their constitutional rights when they can hold officials accountable for violating them,” said Scott Bullock, president and general counsel for the Institute for Justice. “Today’s decision is a victory not just for government accountability, but for ensuring that our right to be secure in our persons and property is just as robust as the Founders intended.”

Drone Operator Grounded by Self-interested Government Board Fights Back

Raleigh, N.C.—Drones are revolutionizing the way we view the world, making aerial photography easier and less expensive. But drone entrepreneurs on the cutting edge are finding a very old industry standing in the way: land surveying. In North Carolina, the Board of Examiners for Engineers and Surveyors sends warnings to drone operators saying that certain photography amounts to surveying without a license and threatens them with possible criminal prosecution.

Now, drone entrepreneur Michael Jones is fighting back. The images and maps that Michael was creating for willing customers were not being used to set legal boundaries; they were purely for informational purposes. And creating and sharing information is speech protected by the First Amendment. To protect his right to free speech, Michael is teaming up with the Institute for Justice to file a federal lawsuit.

“Drone technology may be new, but the principles at stake in Michael’s case are as old as the nation itself,” said Sam Gedge, an attorney with the Institute for Justice. “Taking photos and providing information to willing clients isn’t ‘surveying’; it’s speech, and it’s protected by the First Amendment.”

Michael is a Goldsboro, North Carolina, photographer and videographer who expanded into drone imagery about five years ago. Michael’s drones took photos of homes for sale, buildings under construction, and a warehouse that wanted to use thermal imaging to see where heat was escaping. He also used his drones to stitch together images into orthomosaic maps composed of multiple images.

It was not until he received a warning letter from the Board in December 2018 that Michael had any idea that what he was doing could be considered “surveying.” He had always been careful to note that his work did not establish property lines and could not be used for legal purposes. But a Board investigator told him that providing images with any metadata (information about GPS coordinates, elevation, or distance) or that stitching together images qualified as surveying and required a full-blown, state-issued license. Worried about the Board’s threat that he could be fined or even criminally prosecuted, Michael shut down much of his drone business.

“When the surveying board wrote that I was breaking the law, I could hardly believe it,” said Michael. “I didn’t think that I was doing anything that could be considered surveying. In fact, I don’t know of any surveying company that was using drones like I was.”

The Board—which is chaired by a licensed surveyor—has a strong incentive to define “surveying” broadly to prevent competition that could impact surveying businesses. But the First Amendment prohibits the government from restricting free speech, and free speech includes taking photographs and sharing information about the photos. And just because Michael sells his images to willing buyers does not mean that the government can ban his speech.

“This is just the newest example of a licensing board expanding its authority to crack down on competition,” said IJ Attorney James Knight. “But licensing boards should not be able to use their authority just to protect businesses from competition. The government should step out of the way and let innovative businesses like Michael’s continue serving their customers.”

IJ defends First Amendment rights and economic liberty nationwide. In December 2020, IJ successfully defended a Mississippi mapping company that was similarly charged by its state’s surveying board with unlicensed practice. IJ also recently won appeals court decisions in free speech cases on behalf of a veterinarian in Texas and tour guides in Charleston, South Carolina.

IJ Urges Supreme Court to Reject Dangerous Expansion of “Community Caretaking” Doctrine

Arlington, Virginia—In Caniglia v. Strom, to be argued on Wednesday, March 24, the U.S. Supreme Court will decide if the Fourth Amendment allows police to enter people’s homes without a warrant whenever an officer is acting as a “community caretaker.” The Institute for Justice (IJ) submitted a friend-of-the-court brief asking the Court to reject that sweeping approach as contrary to the Fourth Amendment’s command that Americans should be secure in their persons and property.

The Fourth Amendment prevents the government from conducting “unreasonable” searches or seizures. But courts often struggle to decide what is or is not “reasonable” in a given context. Here, the 1st U.S. Circuit Court of Appeals held that police could enter the Caniglia family home to seize handguns just because one of the officers felt that Mr. Caniglia might be upset from an argument he had with his wife the previous day. In the court’s view, it is reasonable for officers to enter peoples’ homes without a warrant—regardless of whether or not there is an emergency—so long as they are acting as “community caretakers” instead of enforcing criminal laws.

That cannot be right.

The Fourth Amendment begins by declaring “the right of the people to be secure,” and history makes clear that the Amendment was designed to protect us from threats to our persons and property. It is this right—the right to be secure from government officers’ unchecked power to search and seize—that should serve as the Court’s compass when evaluating the reasonableness of police conduct. In the past, the Court has allowed police to enter homes without a warrant (or consent) only when the facts show a genuinely dangerous situation requiring immediate action.

The lower court veered away from that bedrock principle when it relied on an irrelevant decision from the 1970s involving vehicle searches. Almost 50 years ago, the Supreme Court held that officers do not need a warrant before taking possession of vehicles that pose a risk to the public. And after a vehicle is in police custody, officers do not need a warrant before conducting a routine “inventory search” to collect valuables and protect police against unknown threats within the vehicle. But that case was limited to the context of vehicles within police custody—not our homes. The Court should reject the lower court’s overly broad approach that would weaken all Americans’ right to be secure in their homes.

“The Fourth Amendment protects our right to be secure in our property, which means the right to be free from fear that the police will enter your house without warning or authorization,” said Joshua Windham, IJ attorney. “A rule that allows police to burst into your home without a warrant whenever they feel they are acting as ‘community caretakers’ is a threat to everyone’s security. We call on the Court to correct the lower court’s error and clarify that the community caretaking exception only applies to narrow circumstances involving vehicles in police custody.”

“The Founders wrote the Fourth Amendment to prevent abusive and arbitrary searches and to make us secure in our persons and property,” explained IJ Senior Attorney Robert Frommer, who heads up IJ’s Fourth Amendment work. “But the lower court’s decision treats our security as expendable whenever law enforcement can think of a reason to enter your home.”

“The Supreme Court should reverse this dangerous decision and signal to lower courts that peoples’ rights are too important for the government to cut constitutional corners whenever law enforcement can come up with a vague reason for why entering your home without a warrant is convenient,” said Scott Bullock, president and general counsel for the Institute for Justice.

New Mexico Senate Passes Homemade Food Act, Paving Way for More Cottage Food Businesses

Santa Fe, N.M.—Saturday afternoon, the New Mexico Senate voted 38-2 to pass the Homemade Food Act, which would make it easier for New Mexicans to support their families by selling foods made in their home kitchens. The bill passed the New Mexico House of Representatives 63-1 earlier in March. Currently, New Mexico has one of the weakest homemade or “cottage food” laws in the country, making this route for entrepreneurship unfeasible for ordinary New Mexicans. Worse yet, Albuquerque completely bans the sale of homemade foods. That is all set to change as Gov. Michelle Lujan Grisham is anticipated to sign the uncontroversial yet groundbreaking bill, which stands to create thousands of small businesses in the coming years.

Once signed into law, the bill will accomplish three major goals. First, it will allow sales directly to consumers, rather than only at farmers’ markets or roadside stands. Second, it will remove a burdensome New Mexico Environment Department permit requirement that requires pages of paperwork and can require thousands of dollars in kitchen upgrades before a person can sell. Finally, sales will be legal throughout the state, including in Albuquerque, where the sale of all homemade foods is currently banned. The Institute for Justice (IJ), the nation’s leading advocate for food freedom, condemned Albuquerque’s ban and supported the Homemade Food Act to help all New Mexico homemade food producers thrive. The Rio Grande Foundation and Americans for Prosperity also supported the bill.

“This legislation proves that when there are needless restrictions hurting New Mexico families, both parties can work together to solve it,” said IJ Senior Attorney Erica Smith. “People should be able to freely buy and sell homemade foods without having to worry about the cookie police.” Reps. Marion Matthews and Zach Cook sponsored the bill.

Many would-be homemade food sellers have called the Legislature to ask them to support the bill, which applies only to the sale of shelf-stable foods like baked goods, jams, popcorn, dried pasta and roasted coffee beans. One of them is Trish Ray from San Felipe Pueblo, who testified in support of the bill.

“Passing this bill means that I can legally sell baked goods to fellow New Mexicans and supplement my income,” Trish said. “As a single mother I am doing everything possible to save up for my son’s college tuition and a home-based bakery would help me get started towards that goal.”

For Katie Sacoman in Albuquerque, the change in law will mean she gets to support her family doing what she loves most: baking. Katie quit her teaching job when her daughter was born, but was so frustrated to learn of Albuquerque’s ban, she considered moving. Now, she can make money from home while selling delicious cookies.

“I am really grateful for all the representatives and senators who took time to listen and talk to us,” Katie said. “I’m so grateful that this huge barrier has been lifted for starting my business. We can stay in our homes and start this dream.”

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, especially for women living in rural areas. Even a small amount of extra income from a cottage food business can be helpful to New Mexico households making it through the COVID-19 recession.

The Homemade Food Act is expected to go into effect on July 1, 2021.

California Supreme Court Punts on Property Rights, Refuses to Hear Appeal of Receivership Abuse Victim Ron Mugar

Riverside, Calif.—Four years ago, Norco homeowner Ron Mugar dared to defend his property in court, and he won. Yet for doing so Ron was nonetheless punished. Norco’s for-profit code enforcement prosecutors—lawyers with Dapeer, Rosenblit & Litvak LLP—charged Ron over $60,000 for what they called “obstructive tactics.” It is illegal and brazen for a law firm to seek attorneys’ fees for a case it lost, but so goes the perverse incentives of a code-enforcement system motivated by profit rather than public safety. Ron fought back with the Institute for Justice (IJ) to challenge the constitutionality of being punished for successfully defending himself in court. Unfortunately, Ron’s journey came to an end Thursday when the California Supreme Court refused to hear his appeal.

“Ron made sure his home was up to code and then he won in court. But he is still being punished with an outrageous charge for exercising his constitutional right to defend himself,” said IJ Attorney Joshua House. “California property owners everywhere should be gravely concerned that having your house up to code won’t stop for-profit prosecutors from robbing you of your savings or your home. We will never stop fighting for property rights in California.”

When Ron received a notice indicating that he had violated the city’s housing code, the city’s for-profit prosecutors with Dapeer, instead of fining him or asking him to bring his property up to code, declared they were going to take his house using a legal process known as a “receivership.” Receiverships are an extreme code enforcement remedy in which a court gives one’s property to a receiver for it to be brought up to code. But because the costs of a receiver can be high, it’s often impossible to pay back the receiver and the homeowner will lose their home. Ron made sure his yard was cleaned up, defended himself in court and got the receivership action against him dismissed. Yet proving that his house was up to code did not stop Dapeer from trying to profit from the ordeal.

For for-profit firms like Dapeer, the goal is not to make sure the city is up to code; it’s to make a massive profit off the backs of California homeowners. After today, for-profit law firms hired by California municipalities will feel emboldened to go after innocent homeowners, even if their homes are up to code.

“Receiverships should be a last resort, because when cities use receiverships, they’re taking away someone’s home and likely all of their equity. The stakes are huge,” said IJ Attorney Jeffrey Redfern. “For-profit prosecutors like Norco’s have a financial incentive to get paid for bringing receivership actions. That is not what code enforcement or receiverships should be about.”

Ron said, “I’m very disappointed that the California Supreme Court refused to hear my case. I will keep fighting to make sure that Californians aren’t punished for defending themselves and their homes in court.”

California is a haven for predatory for-profit code enforcement schemes that abuse citizens’ constitutional rights. In nearby Indio, California, the city had hired a law firm called Silver and Wright LLP to enforce its municipal code. There, the lawyers charged an elderly woman nearly $6,000 in attorneys’ fees because her tenants were keeping chickens in their backyard. Indio no longer uses the firm for prosecution, and it has agreed to settle the lawsuit.

The Institute for Justice has been at the forefront of fighting efforts by the government to use fines, fees and civil forfeiture to raise revenue. Most recently, it secured a unanimous  victory at the U.S. Supreme Court ruling that states cannot impose excessive fines.

Supporters of the Homemade Food Act Ask New Mexico Senate To Consider Bill Today

When the New Mexico House of Representatives considered the Homemade Food Act, HB 177 last week—a bill to make it easier for people to support their families by selling foods made in their home kitchen—several legislators touted the bill as an example of the system working. In a time when partisan politics are at their peak, the Act represents politics at its finest: Republican and Democratic sponsors working together to bring relief to its citizens during the pandemic. Reps. Zach Cook (R) and Marion Matthews (D) are the lead sponsors of the bill and the bill passed the House last week with only one vote against.

Now the bill is due to be considered on the Senate Floor. But because the session ends at noon tomorrow, supporters of the bill are hoping the Senate will have time to consider the bill before time runs out.

Selling homemade foods—like baked goods, jams, dried pastas, honey, and roasted coffee beans—is a common way for people in 49 states to support themselves, their families and their farms. During the pandemic, being able to make money from home is more important than ever. The problem is that New Mexico currently has the most restrictive homemade food law in the country of the states that allow cottage food sales. The only state with a more restrictive law is New Jersey, which bans sales completely.

Many would-be homemade food sellers have called the legislature to ask them to support the bill. One of them is Trish Ray from San Felipe Pueblo, who testified in support of the bill.

“Passing this bill means that I can legally sell baked goods to fellow New Mexicans and supplement my income,” Trish said. “As a single mother I am doing everything possible to save up for my son’s college tuition and a home-based bakery would help me get started towards that goal.”

The bill would fix three problems with New Mexico’s current law. First, the laws allow cottage food producers to sell only at farmers markets and roadside stands. That means that while a cottage food producer can sell bread at the market, she can’t deliver the exact same bread to her neighbor down the street. (Only four other states have this restrictive requirement). Secondly, before the baker can even sell the bread at the market, she needs to get a burdensome permit from the Environment Department that requires pages of paperwork and can require thousands of dollars in kitchen upgrades. Finally, Albuquerque bans the sale of cottage foods completely—one of the only cities in the nation to do so.

HB 177 would fix these problems by making three changes.
· Allow all sales directly to consumers, including from home and online;
· Remove the burdensome permit requirement for all areas under NMED’s jurisdiction and instead require sellers to obtain a food handler certificate and abide by basic safety standards;
· Make sales legal everywhere, including in Albuquerque.

There are no safety concerns with the bill. The bill applies only to the sale of shelf-stable foods like baked goods, jams, popcorn, and roasted coffee beans. Under the bill, sellers would also need to take a one-day online safety course and abide by safety standards.

The Senate is due to reconvene today at noon.

Federal Court Rules Coast Guard Violated Federal Law by Denying a Captain His Right to Earn a Living

WASHINGTON—In a battle waged in a federal courtroom rather than the high seas, an experienced merchant mariner yesterday bested the Coast Guard and a private association, moving him a step closer to piloting ships on the Great Lakes. D.C. District Court Judge Amit Mehta ruled that the Coast Guard violated federal law in denying Captain Matthew Hight the opportunity to take an exam that would allow him to register as a pilot. Captain Hight’s victory is a rare instance of a federal agency losing a case about how it interprets its own regulations.

Prior to this decision, the Coast Guard allowed the St. Lawrence Seaway Pilots Association, a for-profit business, to determine who can and cannot work as a pilot on the Great Lakes. The members of the association are themselves pilots on the Great Lakes, and thus pick their own competition.

After Captain Hight raised questions about how the association’s leadership was managing the association’s finances, the association gave Captain Hight a negative recommendation. Among other supposed offenses, the association complained that Captain Hight used profanity while piloting a ship—allegedly swearing like a sailor. As far as the Coast Guard was concerned, that negative recommendation was the end of Hight’s career as a pilot.

Before his dreams of becoming a pilot sunk below the waves, Captain Hight teamed up with the Institute for Justice (IJ) to file a federal lawsuit to protect his right to earn a living. The lawsuit challenged the constitutionality of the Coast Guard’s delegation of its power to a private association, and it also argued that the delegation violated the Coast Guard’s own regulations.

“The government must follow its own rules,” said IJ Senior Attorney Anthony Sanders. “This decision is an important vindication of that principle: the government cannot arbitrarily deny a qualified American his right to earn an honest living. The Supreme Court has recently made clear that agencies cannot interpret their own rules however they wish and get away with it. Captain Hight’s win here is an example of that renewed attention to bureaucratic shenanigans making a difference in real people’s lives.”

Judge Mehta ruled that the Coast Guard violated the Administrative Procedure Act, which governs how federal agencies regulate. In his decision, Mehta wrote that the Coast Guard’s interpretation of its rules, “[M]ay be wise policy, but that is not what the regulations say, and the text controls.” Judge Mehta also noted that the Coast Guard had failed to offer any interpretation of its regulations that would justify its delegation of authority to the association.

The decision orders the Coast Guard to administer the exam, but that does not guarantee that Captain Hight will receive his registration should he pass. It remains an open question whether the Coast Guard will continue to defer to the pilot association’s negative recommendation even though that decision was motivated by a personal disagreement rather than Captain Hight’s capabilities.

The judge declined to consider Captain Hight’s broader constitutional challenges to the Coast Guard’s regulatory scheme and its delegation of authority to the pilot’s association. Those issues could be considered in further litigation should Captain Hight continue to be blocked from receiving his pilot’s registration.

“This is a great victory for Captain Hight but his odyssey is not at an end,” said IJ Attorney Jeff Redfern. “We will be watching closely to see what the Coast Guard does next, and if it does not restore Captain Height’s right to earn a living all possible options will remain on the table—including returning to court to challenge the constitutionality of this regulatory scheme.”

South Padre Island food trucks ask Texas Supreme Court to rein in city flouting constitutional ruling

SOUTH PADRE ISLAND, Tx.—Late last year, Texas Judge Arturo Cisneros Nelson struck down South Padre Island’s anti-competitive 12-permit cap and restaurant permission scheme, declaring them unconstitutional and ending two years of litigation. This was great news for area food truck owners, who began taking steps to take full advantage of the busy travel season kicking off with Spring Break.

But South Padre Island, after conferring with the Texas Municipal League, astonishingly chose to defy the district court’s order. The city did not appeal or seek to stay the loss. Instead, it continued enforcing both its cap on food truck permits (ensuring no more than 12 food trucks on the island) and its restaurant-permission scheme, which says that food truck owners must obtain approval of a local restaurant owner to qualify for a permit.

The city initially claimed that its defiance was because it did not understand the court’s order, but it simultaneously refused to ask the district court for clarity. And at the same time, the city misled the public on its official Facebook page, indicating that the district court had not done what it did. Based on that misrepresentation, the city announced that both the permit cap and restaurant permission scheme “will remain in effect.”

The city’s behavior is a direct slap in the face of the Texas courts, which exist to protect Texans’ constitutional rights. So today the Institute for Justice, working on behalf of a group of food trucks, has asked the Texas Supreme Court to intervene and force the city to comply with the Judge Nelson’s court order and the Texas Constitution.

“When a law is ruled unconstitutional by a Texas court under Article I of the Texas Constitution (Bill of Rights) that law is immediately void and unenforceable” said Arif Panju, Managing Attorney of the Institute for Justice’s Texas office. “By continuing to fence out food-truck competition at the behest of local restaurant owners, the city is not only defying the authority of Texas courts, but also preventing food truck vendors from earning a living. Now the city must answer to the Texas Supreme Court.”

In February 2019, IJ challenged the city of South Padre Island’s anti-competitive restrictions on behalf of food truck owner SurfVive, a local nonprofit spearheaded by Erica Lerma, and the Brownsville-based Chile de Árbol food truck operated by brothers Anubis and Adonai Avalos. Both food trucks were forced to the sidelines for over two years and could not operate under the city’s permitting scheme. After taking the city to court to vindicate their constitutional rights, they won in the district court after proving that the two restrictions had nothing to do with protecting health and safety, but rather only the profits of local restaurant owners who wrote the ordinance.

Broad Left-Right Coalition Urges Congress to Protect Americans From Civil Forfeiture

More than a dozen influential nonprofit organizations from across the political spectrum sent a coalition letter this week calling on Congress “to curb law enforcement’s power to use and abuse the practice of civil forfeiture by enacting strong reforms.” Under civil forfeiture, law enforcement can permanently confiscate property from innocent owners without ever charging them with a crime, let alone securing a conviction. At the federal level, about 80-90 percent of all forfeitures are conducted “administratively,” i.e. without any judicial oversight and with the seizing agency acting as judge and jury.

Driving these abuses is a perverse incentive to police for profit; federal agencies can keep the proceeds from forfeited property, giving them a strong financial motive to seize property. Over the past two decades, more than $45.7 billion was deposited into the forfeiture funds run by the U.S. Department of Justice and the Treasury Department. State and local agencies can profit too. Through “equitable sharing,” police and prosecutors can collaborate with a federal agency, evading any stricter state law protections against civil forfeiture, and collect up to 80 percent of the proceeds. Altogether, at least $68.8 billion was forfeited by state and federal agencies from 2000-2019.

“Congress must protect the civil liberties and property rights of all Americans,” said IJ Senior Attorney Dan Alban, who co-directs IJ’s National Initiative to End Forfeiture Abuse. “For nearly four decades, civil forfeiture has victimized far too many innocent property owners who never had a chance in a system that stacks the cards against them in order to send billions of dollars to law enforcement. That must end now.”

Spearheaded by the Institute for Justice, the coalition letter was sent on Monday to the Chairs and Ranking Members of the House and Senate Judiciary Committees and identified several key reforms. Short of fully abolishing civil forfeiture, Congress should end forfeiture’s “improper” incentives by redirecting all forfeiture proceeds to the Treasury’s General Fund and by dismantling the equitable sharing program. Congress must also strengthen safeguards for due process, including by raising the standard of proof, guaranteeing the right to legal representation for indigent owners, and by eliminating the administrative forfeiture system. 

Although many Americans are bitterly polarized, a solid majority stands against civil forfeiture. Two-thirds of Americans (and 60 percent of Republicans) said they would be more likely to vote for a Member of Congress who wants to abolish civil forfeiture, according to a poll conducted last fall by YouGov on behalf of the Institute for Justice. Reflecting this bipartisan consensus on the dire need for forfeiture reform, the coalition letter was signed by organizations spanning the political spectrum, including the ACLU, American Commitment, Americans for Prosperity, Campaign for Liberty, DKT Liberty Project, the Drug Policy Alliance, the Due Process Institute, FreedomWorks, Goldwater Institute, LEAP, the Leadership Conference, NACDL, National Motorists Association, National Taxpayers Union, and R Street. 

“It is our hope that, whether through standalone legislation, provisions included in broader criminal justice reform, or the appropriations process, this Congress will finally solve this longstanding problem,” concluded the letter. 

Since the Institute for Justice began its End Forfeiture initiative in 2014, 35 states and the District of Columbia have enacted forfeiture reforms. Seven states and the District have restricted equitable sharing, limiting law enforcement’s ability to receive funding through the program and making it harder for law enforcement to circumvent state civil forfeiture laws. And in 2015, New Mexico abolished civil forfeiture, replacing it with criminal forfeiture and requiring that all forfeiture proceeds be deposited in the state’s general fund. In 2019, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

Lots of Support from Friends of the Court As Maine School Choice Case Appealed to Supreme Court

Arlington, Virginia—Last week, a collection of ten different “friends of the court” urged the U.S. Supreme Court to hear a school choice case arising out of Maine. The question before the Court is whether states may bar families from participating in student-aid programs simply because they send their children to schools that provide religious instruction. Among those filing briefs were a coalition of 18 states, various non-religious private schools, a diverse group of religious liberty organizations, an interfaith coalition of religious schools, and education policy experts.

In 2020, the Institute for Justice earned a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. The Court held that discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.

Despite that ruling, the 1st U.S. Circuit Court of Appeals upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, if a school district does not maintain its own public school or contract with a school to educate its students, it must pay for students to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Parents, however, may not select a school that Maine deems “sectarian,” which the state defines as a school that provides religious instruction.

According to the 1st Circuit’s decision, this exclusion turns not on the religious “status” of the excluded schools, but rather on the religious “use” to which a student’s aid would be put—that is, procuring an education that includes religious instruction. In other words, the court held that although Espinoza prohibits Maine from excluding schools because they are religious, Maine can exclude parents from choosing schools that do religious things.

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Senior Attorney Michael Bindas of the Institute for Justice, which represents the families in the suit. “The state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”

“In student-aid programs like Maine’s, parents—not the government—choose the schools their children will attend,” said IJ Managing Attorney Arif Panju. “If a parent believes a school that provides religious instruction is best for her child, the state should not be allowed to deny her that choice.”

Lea Patterson, an attorney with First Liberty Institute, which serves as co-counsel with the Institute for Justice in the case, said, “For 40 years, Maine has rejected parental choice in education and allowed religious discrimination to persist. The Supreme Court should act now so yet another generation of schoolchildren is not deprived of desperately needed educational opportunity and the right to freely exercise their religion.”

Among the ten different groups that filed amicus briefs urging the U.S. Supreme Court to hear the Maine families’ appeal were:

  • A coalition of 18 states—Arkansas, Alabama, Arizona, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah and West Virginia—that are “united in recognizing religious and nonreligious schools as valid educational partners” argued that “a State need not discriminate on the basis of religion to serve its undoubtedly compelling interest in educating children.” They stressed that “[i]f left to stand,” the 1st Circuit’s decision “threatens not just the freedom of religious schools and families in Maine but also the flexibility of the States to partner with religious schools.”
  • A broad coalition of religious schools, including the Council of Islamic Schools in North America (a non-profit accrediting and advocacy organization that supports Islamic schools, which serve approximately 24,000 students), the Partnership for Inner-City Education (a non-profit operator of Catholic pre-K–8 schools in Harlem, the South Bronx, and Cleveland) and the Union of Orthodox Jewish Congregations of America (a Jewish synagogue organization representing more than 400 Jewish K–12 schools) stressed that “ 1 entral to these schools’ religious and educational missions is the integration of faith throughout all aspects of their educational programs, making the status/use distinction employed by the [First Circuit] both unworkable and discriminatory,” and“[t]o discriminate against these religious schools on the basis of use,” the brief makes clear, “is to discriminate against religious schools on the basis of their status.”
  • Innovative private schools Build UP (which operates a workforce development model to provide low-income youth in Alabama and Ohio with career-ready skills through paid apprenticeships) and Kuumba Preparatory School for the Arts (an African-centered private school located in southeast Washington, D.C.) were “founded on the principle that different students learn differently, and that it is the responsibility of educators to embrace students’ unique capacities as a tool for learning, not an obstacle to it.” The 1st Circuit’s decision, their brief argues, “will have the perverse effect of hurting those who are most likely to benefit from innovative schools, and it will chill creativity and experimentation by schools that fear such experimentation may cause their students to lose access to critical tuition assistance.”
  • EdChoice, a national nonprofit leader in educational-choice research, legal defense, policy development and outreach, provides an extensive examination of Maine’s history of hostility to religion—from its subjecting Catholic students to Protestant religious exercises in its 19th-century public schools to its current prohibition on students’ selection of private schools that accord with their religious faith under the states’ tuition assistance program. EdChoice urges the Court to “tak[e] this opportunity to clarify that religiously neutral application of student-aid programs is both permitted by the Establishment Clause and required by the Free Exercise Clause.”

“We are grateful for the support of every organization that submitted an amicus brief in support of our appeal,” said Scott Bullock, president and general counsel of the Institute for Justice. “The Supreme Court’s taking this case and ruling in favor of the families will ensure that educational choice programs can provide a wide range of school options—whether public or private, religious or non-religious—that enable parents to find a school that best meets their children’s individual needs. Now more than ever, it’s time to expand educational opportunities for all families.”

#  #  #

(For a video discussing this U.S. Supreme Court appeal with IJ Senior Attorney Michael Bindas and IJ Maine school choice client Amy Carson, click here: https://www.youtube.com/watch?v=TeMoGkTibdU.)

For more information on this case, visit https://ij.org/case/maine-school-choice-3/ or contact John E. Kramer, vice president for communications, at jkramer@ij.org or call (703) 682-9323 ext. 205.

Washington Supreme Court to Hear Significant Excessive Fines Case

SEATTLE—This morning, the Washington Supreme Court will hear argument in City of Seattle v. Long, a case concerning the Excessive Fines Clause of the U.S. Constitution. The court will consider whether the clause prohibits the city of Seattle from imposing a $547 charge on a homeless man after the city impounded the truck in which he lived. It is an opportunity for the court to define the boundaries of the Excessive Fines Clause after the U.S. Supreme Court held that the constitutional provision restricted state and local governments in Timbs v. Indiana in 2019.

The case concerns Steven Long, who was forced to live in his truck after losing his home. The truck, which did not work properly, was parked in a secluded gravel lot owned by the city. In 2016, Seattle police were dispatched to the area for an unrelated complaint. While there, police ticketed Long for parking in one spot for more than 72 hours. A few days later, a private towing company that contracted with the city towed his truck, leaving Long to sleep on the streets. He was eventually fined $44 and charged $547 for the cost of impounding his truck. He appealed the impound charge to the Seattle Municipal Court, which found the charge to be an unconstitutionally excessive fine. The King County Superior Court agreed, and the city sought review before the Washington Court of Appeals. That court reversed the Superior Court. Long appealed to the Washington Supreme Court, which agreed to hear the case earlier this year.

One of the most significant issues before the Washington Supreme Court is whether a court must consider the individual circumstances of an offender in determining whether a particular fine is excessive. In its briefing before the Supreme Court, the city argues that so long as the government approves the amount of the fine and it reflects the cost of enforcement, it can impose that fine on an indigent person.

“The city’s position is essentially that there is no difference between imposing a fine of $547 on a homeless individual living in a truck or imposing it on Bill Gates,” said Bill Maurer, the Managing Attorney of the Seattle office of the Institute for Justice (IJ), which represented Tyson Timbs in the U.S. Supreme Court case that bears his name. “But the purpose of the Excessive Fines Clause is to prevent the government from pushing a defendant to the wall. There is no way to prevent that unless the courts consider the financial circumstances of a defendant.”

IJ filed a friend of the court brief supporting Long on its behalf as well as on behalf of the Fines and Fees Justice Center, the Southern Poverty Law Center, the Oregon Law Center, Equal Justice Under Law, the Policy Advocacy Clinic of the U.C. Berkeley School of Law, and the MacArthur Justice Center. The case is one of the first state supreme court cases in the country to address the contours of the Excessive Fines Clause. The only other state supreme courts in the country to consider the issue post-Timbs—Indiana and Colorado—have both concluded that courts must consider a defendant’s circumstances in determining whether a penalty is unconstitutionally excessive.

“For someone forced to live in their vehicle, a $547 fine might as well be a $547,000 fine—a homeless individual can pay neither,” continued Maurer. “The city should reconsider whether it should be fining someone for the crime of being so poor that they have to live in an inoperable vehicle.”

The oral argument will be streamed online and broadcast by TVW at 9:00 a.m. PDT: http://www.tvw.org/.

Texas Federal Judge Tosses Qualified Immunity Defense in First Amendment Retaliation Case

On Friday Sylvia Gonzalez—a retiree and former Castle Hills, Texas, councilmember thrown in jail for speaking out against her local government—got the news she has waited more than a year to hear. In a powerful ruling issued Friday afternoon, Judge David Alan Ezra dismissed the city’s motion to dismiss and ruled that her case alleging First Amendment retaliation against the city’s chief of police, the mayor, a detective, and the city itself can proceed.

“I’m incredibly grateful to be able to proceed with my case,” said Sylvia Gonzalez, who is represented by IJ in her fight. “I’m glad that after all I’ve been through the truth will prevail.”

This decision marks an early and important victory in the fight to vindicate Sylvia’s constitutional rights. Too often, government officials argue that a legal doctrine known as “qualified immunity” shields them from being held responsible for violating individual rights. Soon after Sylvia filed her lawsuit, the government defendants claimed immunity and argued that the case should be thrown out. Judge Ezra disagreed and ruled for Sylvia. Now, Sylvia and IJ can proceed and are looking forward to their day in court.

Sylvia’s case started in May 2019, when she decided to run for a city council seat. As part of her campaign, she helped organize a non-binding petition calling on the council to remove the Castle Hills city manager from his position. This did not sit well with the mayor and the police chief, among others, who engineered a campaign to retaliate against Sylvia by removing her from office. When that failed, they engineered a plot to throw her in jail—nonsensically arguing that she tried to steal her own petition. Seventy-two years old at the time, Sylvia spent an entire day behind bars, forced to sit on a metal bench (and not allowed to stand), wear an orange shirt, and use a bathroom with no doors or opportunity for privacy. Her mugshot appeared on TV screens all over Castle Hills and San Antonio.

When Sylvia sued, the defendants invoked qualified immunity—a doctrine that shields government employees from being held accountable, even when they violate individual rights. To overcome immunity, the victim must prove that a court has ruled that the exactly the same conduct was already ruled unconstitutional.

But here, the court saw through the government’s attempt to hide behind qualified immunity. Judge Ezra ruled that the law is clearly established, and the government has more than fair warning that throwing someone in jail in retaliation for exercising their free speech is a violation of the First Amendment. The judge also ruled that the claims against the city must move forward.

“This decision is a remarkable victory for government accountability,” said Will Aronin, one of the IJ lawyers representing Sylvia in this case. “The judge ruled that Sylvia’s claims against every single defendant—including the city itself—can proceed. Now, Sylvia will finally get her day in court and we’re confident a jury will see the city’s actions for what they were—an unconstitutional attempt to punish her for exercising her constitutional rights.”

Sylvia’s case is a part of IJ’s Project on Immunity and Accountability, which is dedicated to the principle that our Constitution is not an empty promise and must be enforced. In addition to Sylvia’s case, the Institute for Justice is litigating several other constitutional cases that arose in Texas: including one on behalf of a Vietnam veteran who was senselessly beaten by security guards at a veterans hospital in El Paso, Texas, and one on behalf of an innocent homeowner in McKinney, Texas, who was left holding a bill for more than $50,000 after a SWAT team destroyed her home in pursuit of a fugitive.

Lawsuit: Florida Parents Partner with IJ to Shut Down Dystopian “Predictive Policing” Program

Pasco County, Florida’s future policing program is as dystopian as it is unconstitutional. Under the guise of “predictive policing,” for the last 10 years the Pasco County sheriff’s department has used a crude computer algorithm to identify and target supposed “future criminals.” Once identified, these supposed “prolific offenders”—many of whom are minors—are relentlessly surveilled and harassed. As a Tampa Bay Times in-depth investigation uncovered, police regularly show up at their homes unannounced and demand entry. If they or their parents don’t cooperate, police write tickets for petty violations, like missing house numbers or having grass that is too tall. As one former Pasco County deputy put it, they were under orders to “make their lives miserable until they move or sue.”

After weathering years of misery, today a group of Pasco residents partnered with the Institute for Justice—a nonprofit public interest law firm—to sue the county and put an end to its predictive policing program once and for all. The lawsuit, which was filed in federal court, argues that the county violated residents’ First, Fourth and Fourteenth Amendment rights.

“Pasco’s program seems like it was ripped from the pages of a dystopian sci-fi novel and not a manual on effective police strategies,” said Institute for Justice Attorney Ari Bargil. “This program isn’t just unethical, it’s patently unconstitutional to use a crude computer calculation to target, harass, fine, and even arrest citizens who have done nothing wrong.”

Robert Jones, a plaintiff in the lawsuit, knows the cruelties of Pasco’s program firsthand. In 2015, Robert’s teenage son had a number of run-ins with the law. That landed his son on Pasco’s “prolific offender” list. Shortly thereafter deputies started to conduct “prolific offender checks.” These warrantless “checks” involved repeated, unannounced visits to Robert’s home at all hours of the day. Robert grew tired of the harassment and stopped cooperating with police. That only made matters worse.

Code enforcement is a common tactic to compel cooperation. One deputy said they would “literally go out there and take a tape measure and measure the grass if somebody didn’t want to cooperate with us.” In Robert’s case, deputies cited him for tall grass, but failed to notify him of the citation. Then, when he failed to appear for a hearing that he was never told was happening, they arrested him for failure to appear.

All told, Robert was arrested five times by Pasco deputies. Although the bogus charges never stuck—they were all dropped—the harassment accomplished its goal: Robert ultimately moved his family out of Pasco County to escape the constant harassment from the Sheriff’s Office.

“I lived through a living hell because a computer program said my family didn’t belong in Pasco,” said Robert Jones. “I only thought this kind of thing happened in movies, not in America. We’ve got rights. And I’m going to stand up for them and shut this program down.”

Predictive policing gained prominence in the late 2000s as a way for police to use data to better allocate resources. Cities including Los Angeles and Chicago experimented with predictive policing but have subsequently scrapped their programs because of civil rights and effectiveness concerns. In most cases, police departments used data to identify geographic areas in need of additional resources. But Pasco took it one step further by using data to target specific individuals.

“Pasco defends its program as a crime fighting tool,” said Institute for Justice Attorney Robert Johnson. “But in America, there is no such thing as ‘innocent until predicted guilty.’ The government cannot harass people at their homes just because it thinks they might commit some unspecified future crime.”

Robert is joined in the lawsuit by Tammy Heilman, Dalanea Taylor, and Dolly Deegan. Like Robert, their families have all suffered unconscionable harassment by the Pasco deputies. Their lawsuit alleges that the county’s prolific offender checks violate the plaintiffs’ constitutional right to be protected from unreasonable searches and seizures. Beyond that, it argues that the due-process and equal-protection guarantees of the Fourteenth Amendment guard against arbitrary or irrational government actions. In this case, law enforcement officials cannot use a legitimate law, like code enforcement, to achieve an illegitimate purpose, like harassing and forcing prolific offenders and their families to “cooperate” during prolific offender checks.

For nearly three decades, the Institute for Justice has represented homeowners and others to stand up for their constitutional rights. Earlier this month, for instance, IJ filed a lawsuit against the city of Lantana, Florida, after it fined a homeowner more than $100,000 for parking violations. In Pagedale, Missouri, IJ won a class action lawsuit and shut down the city’s program of using fines and fees for trivial issues to raise revenue for the city. And in Dunedin, Florida, IJ filed a lawsuit on behalf of homeowner who was driven into foreclosure after the city fined him nearly $30,000 for having grass that was too long.


Every Contribution Helps IJ Fight for Americans’ Rights

The Institute for Justice protects the constitutional rights of all Americans. IJ defends ordinary people who want to earn an honest living, own and enjoy their property, speak freely, and give their children a good education but find that the government is standing in their way—and we win 75% of our cases.

New Lawsuit Seeks to End Colorado’s Transportation Monopoly Law

Arlington, Va.—Abdallah Batayneh just wants to start a new shuttle service in Steamboat Springs, but Colorado law allows existing transportation companies to veto new businesses in their regions. Today, in order to clear the way for himself and other entrepreneurs in Colorado, Abdallah is partnering with the Institute for Justice (IJ) in a lawsuit to put an end to this unconstitutional law.

Abdallah came to America to build a better life for himself and his family. He currently manages his own cleaning service and works at a beautiful mountain resort. He heard many complaints about the two existing shuttle services. So, Abdallah decided to start his own shuttle service to improve access to transportation in his community.

Unfortunately, he quickly hit a roadblock. As required, he applied to the Public Utilities Commission (PUC) for permission to start his shuttle service. Under Colorado law, existing transportation companies are given the power to object to new transportation businesses and ban them from operating in their region. That is just what happened to Abdallah. Even though the PUC determined he was “operationally, managerially, and financially qualified” to operate his proposed shuttle service, he was banned from operating because the two existing shuttle services objected.

“I’m just pursuing my American Dream and simply wanted the chance to compete,” said Abdallah. “I should be encouraged—not blocked by government officials who are more interested in protecting a cartel of connected insiders.”

“The government admits Abdallah is qualified and has the experience necessary to run a safe, affordable, shuttle company,” said IJ Attorney Will Aronin. “But, because the cartel said no, the government banned him from starting his business. That’s not just wrong. It’s unconstitutional.”

IJ has been challenging laws protecting transportation cartels and monopolies for over 25 years. In 1993, IJ’s constitutional challenge to Denver’s taxi cartel spurred the Colorado Legislature to change the law, dramatically improving transportation throughout the city. Even then, IJ successfully sued again to enforce the improved law after the PUC refused to abide by it. And IJ’s litigation on behalf of transportation entrepreneurs has eliminated other anticompetitive restrictions nationwide, including in Bowling Green, Chicago, Las Vegas, Little Rock, Milwaukee, Nashville, New York, and San Diego. Now, Abdallah and IJ are teaming up to build on IJ’s success in Denver and eliminate transportation monopolies throughout Colorado.

“Restrictions like these hurt customers, the community and local businesses,” said IJ Senior Attorney Justin Pearson. “It’s not the government’s job to pick winners and losers in the marketplace. That right belongs to consumers.”

Victory for Food Freedom in Lincoln, Nebraska

Lincoln, Neb.—Homemade food producers will soon be free to sell their goods within Lincoln without being forced to follow burdensome regulations by the city. Under an amended ordinance, set to take effect on March 15, cottage food producers registered under LB 304 simply have to register with the city, and inspections are only allowed under narrow circumstances (for example, based on a specific complaint of foodborne illness). The amended ordinance was prompted by a lawsuit filed last year by the Institute for Justice (IJ) and home baker Cindy Harper, in partnership with Husch Blackwell LLP.

“This new ordinance is a major improvement for cottage food producers in Lincoln,” explained IJ Attorney Joshua Windham, lead counsel on the case. “Shelf-stable foods like Cindy’s sugar cookies are just as safe in Lincoln as they are in the rest of the state, so there was never any reason for Lincoln to set itself apart with additional regulations. This new ordinance better reflects that reality.”

“I’m very pleased with the revision to the ordinance and that cottage food producers in Lincoln can now work with regulations that are more in line with the state law,” said Cindy. “I want to thank the Institute for Justice and my attorneys for all the hard work that went into making this happen for all of us.”

In 2019, Cindy helped convince state lawmakers to adopt LB 304, which reformed Nebraska’s regulations for the home-based sale of shelf-stable foods like Cindy’s decorative sugar cookies. Specifically, LB 304 exempted cottage food producers from the burdensome permitting and inspection requirements that apply to commercial restaurants—as long as they register with the state and pass a simple food safety course.

Within months, however, the city of Lincoln went rogue by imposing the same permitting and inspection requirements on cottage food producers operating locally. So last year, Cindy teamed up with IJ to file a constitutional lawsuit to have the city’s ordinance declared preempted by LB 304.

The city initially dug its heels in, filing a motion to dismiss Cindy’s case. But in October 2020, a state trial court denied the motion, noting the clear “tension” between the city’s ordinance and LB 304.

In response to the court’s decision, on Tuesday Lincoln’s City Council voted unanimously to amend its cottage food regulations. Under the new regulations:

  1. Cottage food producers registered under LB 304 simply need to file their state registration with the city, pay a fee and have a “consultative visit” with the health director so that the director can provide some food-safety information.
  2. Cottage food producers registered under LB 304 will have to follow labeling requirements similar to those listed in LB 304.
  3. The broad inspection authority under the previous ordinance—which allowed the city to inspect private homes whenever it pleased—has been replaced with a more narrowly tailored system under which (a) inspections can only occur based on a complaint of foodborne illness, improper labeling, or some other specific violation of the Lincoln Code, and (b) must be limited to places where cottage foods are actually handled, stored, or sold.
  4. Finally, the ordinance clarifies that the city’s cottage-food regulations apply only to sales inside the city.

Today, IJ and Cindy Harper voluntarily dismissed their lawsuit challenging Lincoln’s burdensome cottage food regulations.

“The city’s new ordinance finally recognizes that the right to sell home-baked goods in Nebraska shouldn’t depend on what city you happen to live in,” said IJ Attorney Keith Neely. “That’s a principle that applies everywhere, and IJ will continue to be on the lookout for local regulations that flout state protections for food freedom.”

A SWAT team destroyed a Texas home and refused to pay for the damage. Now the homeowner is fighting back.

McKinney, Tex.—Last summer, Vicki Baker woke up one morning to every homeowner’s worst nightmare: the night before, a fugitive had taken refuge in her second home, and after a standoff, the police SWAT team used tear gas grenades, explosives and an armored vehicle to utterly destroy the home. They called it “shock and awe.”

The incident left Vicki in shock, too. When the smoke cleared, the home—which her daughter was living in and which was under contract to sell—was uninhabitable. The only living thing that survived the raid was her daughter’s dog, which was left deaf and blind from the explosions.

Vicki, who had recently moved to Montana to retire, was left holding the bill. The city of McKinney and her homeowner’s insurance company told her that police had “immunity” and wouldn’t pay for a dime of the damage. A few days later, the buyer walked away and the sale fell through.

All told, Vicki spent more than $50,000 and months of time to repair her home. She ran up debt on her credit cards, and when those ran out, she had to withdraw funds from her retirement account to afford the repairs. When she finally sold the home this winter, it was for substantially less than before the raid.

Case Resources

Although her home was ultimately sold, Vicki’s work in McKinney is not done. Today she partnered with the Institute for Justice, a nonprofit public interest law firm, to sue the city of McKinney for the damage its police did to her home.

“In America, ‘if you break it, you buy it,’” said IJ Attorney Jeff Redfern. “The McKinney SWAT team didn’t just break Vicki’s home—they destroyed it. Now it is time for them to pay for the damage they caused.”

The lawsuit, which was filed in the Eastern District of Texas federal court, argues that McKinney’s refusal to pay for the damage violates that Takings causes of both the U.S. and Texas Constitutions.

“The United States and Texas Constitutions make it clear that when the government takes property, whether it’s for a road or in capturing a suspect on behalf of the public, the government must compensate the owner,” said Suranjan Sen, a Liberty and Law Fellow at the Institute for Justice. “Taking a fugitive off the streets benefits everyone, so the cost of the damages caused by the SWAT team should be borne by everyone, not Vicki alone.”

“I appreciate that the police did what they thought was necessary to protect the community,” Vicki said. “But it’s unfair to place the costs—replacing or redoing all of my flooring, the burst pipes, the damaged roof, the blown-out garage door, the broken doors, the toppled fence—on me, just because the guy happened to pick my house and not someone else’s.”


Every Contribution Helps IJ Fight for Americans’ Rights

The Institute for Justice protects the constitutional rights of all Americans. IJ defends ordinary people who want to earn an honest living, own and enjoy their property, speak freely, and give their children a good education but find that the government is standing in their way—and we win 75% of our cases.

Amicus Briefs Support Veteran Beaten by Police To Get His Day Before U.S. Supreme Court

Arlington, Virginia—This spring, the U.S. Supreme Court will consider whether to grant review in Oliva v. Nivar, a police accountability case. If review is denied, more than 20,000 federal police in Texas, Mississippi and Louisiana will be free to violate the Constitution, no matter how egregious their conduct.

José Oliva is a Vietnam veteran with a 25-year career in federal law enforcement. Five years ago, he was on his way to a dentist appointment at a Veterans Affairs hospital when three VA security guards attacked him in an unprovoked assault caught on video, choking José and tackling the 70-year-old man who posed no threat.

“It was three against one, and they had guns; I knew better than to resist,” José said when describing the assault.

Prosecutors refused to charge the officers, so José sued them in federal court for their violation of his Fourth Amendment rights by using excessive force. José won in the trial court, which held that the officers were not entitled to qualified immunity, but the 5th U.S. Circuit Court of Appeals held that because the officers worked for the federal—rather than state or local—government, they could not be sued for constitutional violations, no matter how outrageous their actions.

“There is no reason to treat federal law enforcement differently from its state and local counterparts,” said Patrick Jaicomo, an attorney for the Institute for Justice, which represents José. “Having this two-track system of accountability provides additional loopholes for avoiding a day in court, making it difficult to achieve meaningful reforms.”

“The Supreme Court has an opportunity here to make it clear that when federal law enforcement uses excessive force, they will face exactly the same consequences as those who happen to work for a state or a municipality,” said IJ Attorney Anya Bidwell, co-counsel in this case.

In addition to the Institute for Justice’s brief filed on behalf of José, a number of amicus (or “friend of the court”) briefs have been filed by notable scholars and public policy experts across various disciplines and philosophical outlooks, all of whom urge the Court to accept José’s case. These include:

  • A brief on behalf of Peter Schuck. Prof. Schuck is the Simeon E. Baldwin Professor of Law Emeritus at Yale University. He is a legend in the field of constitutional accountability. He wrote a treatise—Suing Government: Citizen Remedies for Official Wrongs (1983)—which became the foundational text on the subject and inspired many great legal minds to get involved in the field. In his brief, Prof. Schuck argues that the 5th Circuit’s decision denying José Oliva his day in court “departs radically from this Court’s established framework for evaluating damages claims against federal officials for constitutional torts, creating a split among the circuits.” Supreme Court review, therefore, is not only warranted but badly needed.
  • A brief on behalf of Seth Stoughton. Prof. Stoughton is a former police officer, who, among other appointments, teaches at the University of South Carolina School of Law. He is a well-respected authority on the use of force issues that plague our nation today. According to his brief, the 5th Circuit is home to one of the largest federal law enforcement forces in the country. There are more than 18,000 federal law enforcement officers in Texas alone, with the 5th Circuit overall hosting more than 20,500 federal police. This means that if the 5th Circuit’s decision is allowed to stand, a constitutional remedy will “effectively be abolished exactly where it is most crucial.” In his brief, Prof. Stoughton urges the Supreme Court to take up this case and reverse the horrible holding that prevents José from getting his day in court.
  • A brief that crosses philosophical boundaries on behalf of the ACLU, Cato Institute, DKT Liberty Project, and Law Enforcement Action Partnership. The brief argues that our current moment calls for a reevaluation of the excessive force jurisprudence and also for getting back to the original principles of this country’s founding, such as that where there is a right, there must be a remedy. The legal precedent in Bivens, in which the U.S. Supreme Court ruled that those in federal law enforcement could be held accountable for their actions, has proven to be one of the most powerful tools for remedying government abuses. The decision below in José’s case cannot be allowed to stand lest this tool be denied to those who most need it.

“We are grateful for the support of Professors Schuck and Stoughton, as well as ACLU, Cato, LEAP, and DKT,” said Scott Bullock, president and general counsel of the Institute for Justice. “It is incredible to have such commitment, especially at this early stage of the Supreme Court review. The Constitution is not an empty promise but provides vitally important constraints on government power. We ask the Supreme Court to grant review and make this absolutely clear to federal courts nationwide.”

This case is being litigated as part of the Institute for Justice’s Project on Immunity and Accountability, which seeks to hold government officials more accountable when they violate individual rights. As part of the Project, IJ will continue to fight against the many special protections that shield government officials from accountability.

Threat of Nonprofit Donor Harassment Spotlighted in U.S. Supreme Court Case

Institute for Justice files amicus brief to protect donor privacy

Arlington, Virginia—Imagine being a supporter of Planned Parenthood living in the Bible Belt, or a supporter of the NRA living in San Francisco. Would you want your identity disclosed to government officials who might misuse that information or allow it to be leaked to the public?

That question is at the heart of two consolidated U.S. Supreme Court cases—Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra—to be heard later this term, in which the Court will consider the constitutionality of one of the most sweeping intrusions into private speech and association in decades. Unless the Court overturns the decision of the 9th U.S. Circuit Court of Appeals upholding that intrusion, donors’ safety and the financial footing of nonprofits could be placed at risk.

The case arose when California’s Attorney General began demanding that nonprofits in the state turn over a list of their large contributors as a condition of charitable fundraising. Even though the Supreme Court has held for decades the First Amendment protects the right of nonprofits to keep their supporters’ identities private, the 9th Circuit ignored this precedent and instead relied on the Supreme Court’s decisions on campaign finance to uphold the suspicionless bulk collection of donor information.

“That was wrong and dangerous,” said Institute for Justice Senior Attorney Paul Sherman. The Institute for Justice filed a friend of the court brief on behalf of the Thomas More Law Center and the Americans for Prosperity Foundation. “The Supreme Court’s campaign finance jurisprudence is unlike any other area of First Amendment law and permits regulations of speech and association that would be unthinkable in other domains.”

Sherman added, “The Supreme Court must not allow those outlier precedents to swallow the general rule that Americans have the right to privacy of association. Doing so would open nonprofits to government retaliation that may be difficult or even impossible to detect.”

These concerns are not far-fetched.

“Imagine if the Trump administration had suddenly announced that it was requiring all tax-exempt groups to provide a list of their supporters to the Attorney General,” Sherman said. “Would liberal-leaning groups have felt confident that information would be used only for legitimate law-enforcement purposes?”

In the 1950s, the Court rejected an attempt by the state of Alabama to force the NAACP to turn over the names of its donors, recognizing that the risk of donors being harassed or threatened would undermine the civil rights organization’s base of financial support.

“Multiple people associated with Americans for Prosperity have received death threats or otherwise been harassed,” Sherman said. “At the same time, California has done a terrible job of keeping the nonprofit records it receives confidential; Americans for Prosperity’s expert witness was easily able to access all 350,000 of the supposedly ‘confidential’ documents stored on the Attorney General’s website.”

Institute for Justice President and General Counsel Scott Bullock said, “Everything the Court has done so far in this case—from relisting it multiple times to calling for the views of the Solicitor General—indicates that they are very concerned about the implications this ruling will have for nonprofits across the country. We hope and expect that the Court will reverse the 9th Circuit’s ruling and make clear that its unique campaign finance precedents have no proper application outside of that narrow context.”

Bullock added, “A fundamental purpose of privacy of association is to protect citizens from what government might do with that information. At a time when trust in government is near historic lows, charitable donors have every reason to want to keep their identities private. If the government thinks that information is necessary to investigate violations of the law, it can do what the government is supposed to do: get a warrant.”

“Disclosure is supposed to be about keeping tabs on government, not keeping tabs on private citizens,” said Bullock. “Transparency is important for the government so the public can assess the actions of its lawmakers. But privacy for the individual—in their freedom of speech and freedom of association—is an essential American value, going as far back as the anonymous authorship of the Federalist Papers. Those anonymous documents laid the foundation for the very Constitution that will be debated before the U.S. Supreme Court in this case.”

Lawsuit Challenges New York City’s Abusive Building Code Fines and Fees

In 2016, Queens homeowner Joe Corsini came home to find a piece of paper on his door. It was a notice from the city. He was being fined $3,000 because he moved his pigeon coop from his backyard to his roof and didn’t realize he needed a building permit. Joe was frustrated, but not deterred. He hired an architect—and a lawyer—and started to work with the city to bring the coop into compliance. The city set out a series of unreasonable requirements and after months of going back and forth, Joe finally gave up. Despite working with the city, however, it continued to fine him. When he finally gave up, the city had imposed $11,000 in fines—all for a pigeon coop. To make matters worse, to appeal the fines, he had to first pay them in full. Understandably, Joe tore down the coop and paid the fines.

Resources

Joe is not alone in being targeted by the city’s abusive building inspectors. This year, the city brought in nearly $1 billion in fines and forfeitures, much of it raised by the Department of Buildings. Next year, the city projects it will increase that amount by another $150 million. It can only do that by increasing inspections and fines.

Although Joe may have torn down the coop, he is not done fighting the city. Today, he partnered with the Institute for Justice, a nonprofit public interest law firm, to sue the city and put an end to its unconstitutional program of trapping property owners in a byzantine system of permits and fines that few can escape.

“New York City’s building code treats ordinary homeowners like a revenue source, regularly imposing huge fines for minor violations,” said Bill Maurer, a senior attorney at the Institute for Justice. “An innocent mistake shouldn’t cost a homeowner tens or even hundreds of thousands of dollars in fines. The city’s system is so rigged against small property owners that few can escape unscathed.”

Every year, New York City’s Department of Buildings (DOB) issues thousands of tickets and fines for violations of the city’s codes and regulations, which are long, complex, and contained in three different sources. Some of these violations are issued to large developers for serious problems. No one denies that the city should protect public safety by enforcing its building code against skyscrapers and other major developments, but a growing number of tickets target ordinary homeowners who made inconsequential changes to their own property. For many of these tickets, the property owners cannot mount a defense and there is no appeals process. They have one option: pay. For other tickets, like Joe’s, the property owner can defend themselves, but they cannot appeal a decision to the city’s administrative appeals process and then to a court without first paying all fines the city has levied. This system is not only abusive and unfair; it is also unconstitutional.

The fines and fees collected through this process benefit the city’s General Fund, creating an incentive to impose maximum penalties without regard to whether a violation poses a threat to safety or whether the property owner can afford to pay.

“I cannot believe the Department of Buildings can just issue fines without any oversight,” said Joe. “And for the fines I could appeal, I could not even do that without paying thousands of dollars. This system is set up to punish homeowners and is designed to wring every dollar it can for harmless things.”

The Department of Buildings is not above the Constitution. When it imposes fines and fees on property owners, the owners must have a meaningful opportunity to be heard by an impartial adjudicator without the burdensome condition of paying everything upfront. This protection is the bedrock of due process and is especially crucial when the fines provide a financial incentive for the Department of Buildings to stack up penalties, as it did to Joe.

“The constitutional guarantee of due process for deprivation of property guards against precisely what the DOB is doing to unsuspecting homeowners across New York City,” said IJ Attorney Diana Simpson. “Joe’s lawsuit seeks to put an end to the DOB’s role as cop, judge, and jury for the city’s building code. It will ensure that the city focuses on actual threats to public safety, instead of targeting small homeowners without the know-how or the resources to fight back against the city’s draconian system that lines its own coffers.”

The Institute for Justice is the national law firm for liberty and the nation’s premier defender of private property rights, including lawsuits against New York City’s unconstitutional “no-fault” evictions, unconstitutional code enforcement practices in Pagedale, Missouri, and eminent domain abuses in National City, California.

IJ Supports New Bill in Congress That Would End Qualified Immunity Nationwide

Arlington, Va.—Rep. Ayanna Pressley (D-MA) reintroduced the Ending Qualified Immunity Act today, a bill that would make it much easier for individuals to sue government employees who violate their constitutional rights. The Institute for Justice is proud to endorse this bill as an important and long overdue solution for fixing the problem with government accountability that has been plaguing this nation for some time.

Under qualified immunity, government workers can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law.

Created by the U.S. Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in the statute that authorizes civil rights lawsuits against state and local government officials (Section 1983, originally Section 1 of the Ku Klux Klan Act of 1871). Yet even when qualified immunity is denied, government workers are almost always indemnified, with their employer or municipality ultimately paying their legal costs. In fact, one study found that “individual officers contributed to settlements in just 0.41% of these cases, and paid approximately 0.02% of the total awards to plaintiffs.”

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Anya Bidwell, a lawyer with the Institute for Justice. “For too long, qualified immunity has thwarted the original intent of Section 1983 and denied victims of government abuse a remedy for violations of their constitutional rights,” added IJ attorney Patrick Jaicomo.

True to its name, the Ending Qualified Immunity Act would eliminate qualified immunity for all local and state government employees—not just law enforcement officers, but also prison guards, county clerks, public school administrators, and municipal and state employees. If enacted, government workers would no longer be able to hide behind a hyper-technical analysis of what it means for the law to be clearly established and to violate the Constitution even when acting in bad faith. The courts would be able to focus—as is the case with non-governmental defendants—on whether the law was violated and on ordering a proper remedy.

First introduced last year by then Libertarian Rep. Justin Amash and Democratic Rep. Pressley, the Ending Qualified Immunity Act became the first bill to ever receive tripartisan support in Congress. Opposition to qualified immunity crosses party lines, earning the support of roughly two-thirds of Americans, and the killing of George Floyd last year united Americans on the need to fix the system in which government workers are above the law.

“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” concluded IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights exist only to the extent that they are actually enforced—and Ayanna Pressley’s bill is an important step in ensuring that they are. The Ending Qualified Immunity Act has our full support.”

Brownback Case Is NOT Over: What Happened Yesterday in the Police Brutality Case and What Happens Next

Arlington, Virginia—Yesterday, the U.S. Supreme Court issued its decision in Brownback v. King, a police brutality case involving an innocent college student, James King, who was brutally beaten in an unprovoked assault by members of a state-federal task force. On first glance, many presumed yesterday’s opinion ended James King’s legal quest to hold the officers who assaulted him accountable for their actions. But that is far from the case. The Court, in fact, remanded the heart of James King’s case to be heard by the 6th U.S. Circuit Court of Appeals.

King sued officers Allen and Brownback for violating his constitutional rights. In the same lawsuit, he filed claims against the U.S. government, under the Federal Tort Claims Act (FTCA). The case went all the way to the Supreme Court because the federal government argued that once King’s FTCA claims against the government got dismissed, his constitutional claims against the officers were also cancelled.

“Yesterday’s opinion handed the government a technical victory on an obscure issue of jurisdiction dealing with the FTCA, but through footnote 4 of the opinion and a powerful concurrence by Justice Sotomayor, the Court denied the government the substance of what it wanted, which was to end James King’s case,” said Institute for Justice Attorney Patrick Jaicomo, who argued the case before the Supreme Court. “Instead, the Court cleared away the complicated issues of jurisdiction and merits and remanded the case for the 6th Circuit to address the strongest argument James King has—whether you can sue the United States and its employees in the same lawsuit without one claim cancelling out the other one. The Institute for Justice will now present that case squarely and cleanly before the 6th Circuit.”

Associate Justice Thomas wrote in his opinion:

King argues, among other things, that the judgment bar does not apply to a dismissal of claims raised in the same lawsuit because common-law claim preclusion ordinarily “is not appropriate within a single lawsuit.” The Sixth Circuit did not address those arguments, and “we are a court of review, not of first view.” We leave it to the Sixth Circuit to address King’s alternative arguments on remand.

“We have centuries of common law on our side to make the point that if claims are brought in the same lawsuit, a dismissal of one cannot affect the fate of another,” said IJ Attorney Anya Bidwell, co-counsel in the case. “There is still a path to accountability for King, and if we prevail, the impact will be significant for those who want to hold government officials individually accountable for their actions when they violate your constitutional rights.”

As reported late yesterday by SCOTUSblog, “King’s case will live to see another day as he seeks to hold the officers who assaulted him accountable.”

For more information on this case, visit:  https://ij.org/case/brownback-v-king/.

Case Appealed to U.S. Supreme Court Asks: May Federal Appeals Courts Abandon Neutrality and Create Arguments for the Government in Civil Rights Cases?

Arlington, Virginia—In an appeal filed on February 18, the Institute for Justice is asking the U.S. Supreme Court to examine the question of whether federal judges have unfettered discretion to unilaterally inject their own arguments or legal theories into cases where state action is challenged and reaffirm that the federal courts cannot act as advocates for the state.

READ THE PETITION HERE.

Marcus & Millichap Real Estate Investment Services, Inc. (“Marcus & Millichap”) is a commercial real estate investment services company with offices throughout the U.S. and Canada. In the U.S., Marcus & Millichap brokers commercial real estate investment transactions that are inherently complex and national in scope. Most states accommodate the sort of interstate brokerage work that Marcus & Millichap performs. Nevada, however, requires individual licensees to maintain a physical presence in the state and prohibits most out-of-state broker involvement, even if working in cooperation with a local broker. As one of Nevada’s enforcers admitted, the law serves to prevent outsiders from “taking business away from our Nevada licensees.”

Marcus & Millichap filed suit in 2016 in federal court to challenge Nevada’s system as protectionist and unconstitutional. The trial court ultimately upheld Nevada’s law and Marcus & Millichap appealed to the 9th U.S. Circuit Court of Appeals. Marcus & Millichap asked the court of appeals to rule that the trial court had erred. The state of Nevada then asked the court of appeals to rule that the trial court got things right.

Rather than deciding which side was right, the 9th Circuit resurrected a procedural argument that no one had made on appeal, called “Younger abstention.” The Younger doctrine says that federal courts shouldn’t interfere with state-court enforcement proceedings. The problem, though, was that Nevada hadn’t asked the court of appeals to apply the Younger doctrine. Nevada, when pressed at oral argument, suggested that the omission had been deliberate.

Even so, the 9th Circuit raised Younger abstention unprompted and dismissed the case. The court introduced a theory no party had presented. It gave no reason for taking that unusual step, and on the strength of that new theory, it withdrew the federal courts from a case they had the power to decide.

Now, Marcus & Millichap and its brokers are asking the U.S. Supreme Court to step in. The 9th Circuit’s decision spotlights a broader phenomenon: courts of appeals’ exercising unconstrained and unexplained discretion to inject procedural hurdles into civil rights cases. The result is arbitrariness on a national scale. Across several courts of appeals, a subset of federal plaintiffs found themselves randomly ejected from federal court on Younger grounds. In all these cases, the federal courts have the power to address the merits. They can rightly exercise that power. Yet appellate courts raise Younger unilaterally, leaving parties unable to proceed in federal court. Represented by the Institute for Justice, Marcus & Millichap is asking the Supreme Court for justice: few questions are more demanding of uniform, transparent resolution than whether and when the federal courts can abdicate their duty to decide cases.

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For more information on this case, contact John E. Kramer, vice president for communications, at jkramer@ij.org or call (703) 682-9323 ext. 205.

Washington Supreme Court rules the state cannot make innocent activity a felony

Today, the Washington Supreme Court ruled that the state cannot make innocent conduct illegal. In doing so, it struck down Washington’s felony drug possession statute, RCW 69.50.4013, because it criminalizes any and all drug possession, even when the person unknowingly possesses an illegal drug. The case is State v. Blake, No. 96873-0. 

The case concerned the conviction of Sharon Blake from Spokane, Washington. Ms. Blake was arrested for possessing a small baggy of methamphetamine in the coin pocket of her jeans. She argued that she had bought the jeans the previous day from a thrift store and did not know there had been drugs in the jeans when she wore them.  

Washington felony drug possession statute, however, makes it a crime to possess drugs even if the person had no idea that they were doing so. This statute is a “strict liability” statute, so a defendant’s state of mind, or “mens rea,” was irrelevant. Under the statute, a postal employee who unwittingly delivered a package containing drugs or the person who plucked the wrong bag at the airport are all as equally guilty as a person who intentionally trafficked drugs. Out of all states, only Washington had such a strict liability possession law. 

As a result, the court overturned Ms. Blake’s conviction. In doing so, the court recognized the ancient requirement thatwith very few exceptionscriminal laws may only punish knowing, deliberate conduct. It therefore struck down Washington’s felony drug possession law, leaving it to the Washington Legislature to pass a possession law consistent with constitutional guarantees. 

“Today’s decision recognizes what should be obvious—except in exceedingly rare instances, people who unknowingly or unwittingly violate a law cannot be convicted of crimes,” said William Maurer, the Managing Attorney of the Institute for Justice’s Seattle, Washington, office. The court specifically requested that IJ file a friend-of-the-court brief regarding the constitutionality of the law. “This recognition is particularly welcome now when we have seen how overzealous criminal prosecutions have harmed people across the country.”   

With the law struck down, the Washington Legislature will need to pass a new law if it intends to keep the knowing possession of drugs illegal. Maurer added, “When it addresses this issue the Washington Legislature must respect citizen’s due process rights and not needlessly criminalize any conduct that poses no threat to society.”  

Supreme Court Orders Appeals Court To Take Second Look at Case of Man Assaulted by Law Enforcement Officers

Arlington, Virginia—Today, in a case involving a college student beaten by law enforcement officers in an unprovoked attack, the U.S. Supreme Court refused the government’s request to create a new kind of immunity for the officers.  Instead, it sent the case against the officers back to a federal appeals court to decide whether claims brought in the student’s lawsuit should be dismissed simply because a government employee is the defendant.

Institute for Justice Attorney Patrick Jaicomo, who argued the case before the Court, said, “Although today’s decision appears at first glance to deal a blow to constitutional accountability, in reality, the Supreme Court teed up the central issue in this case for the federal appeals court to reconsider.  It is asking the 6th U.S. Circuit Court of Appeals to weigh in on whether centuries of common-law practice should apply—or be abandoned—when the issue involves constitutional violations committed by federal police.  When it does, our client James King, the innocent college student the officers choked and beat in 2014, will be able to persuasively argue why he deserves a day in court.  And that’s what we have been fighting for since day one.  If Americans must follow the law, government employees must follow the Constitution.”

In footnote 4 of the opinion, the Court notes, “King argues . . . that the judgment bar does not apply to a dismissal of claims raised in the same lawsuit because common-law claim preclusion ordinarily ‘is not appropriate within a single lawsuit.’”  But the Court declined to decide that issue at this stage of the case: “We leave it to the Sixth Circuit to address King’s . . . arguments on remand.”

IJ Attorney Anya Bidwell, co-counsel in the case, said, “When James King’s case goes back down to the federal appeals court, all this discussion about the merits of the case will no longer apply.  The only question before the court will be whether claims brought in the same lawsuit should cancel each other out simply because a government employee is the defendant.  That should never have been the case, but that is exactly what the government argued, and it seems the justices were rightly not convinced.”

Today’s opinion holds that when a court issues a judgment in one case, that judgment can be used to bar future legal actions.  But in King’s case, that “judgment bar” doesn’t apply to block multiple claims brought in the same case.  So, when King sued the government and the individual officers in separate claims as part of a single lawsuit, just because his case against the government didn’t proceed doesn’t mean his case against the officers is barred from being considered by the court.

In a powerful concurrence, Associate Justice Sonia Sotomayor highlighted many of the arguments made by King’s attorneys, noting that “while many lower courts have uncritically held that the [Federal Tort Claims Act (FTCA)’s] judgment bar applies to claims brought in the same action, there are reasons to question that conclusion.  This issue merits far closer consideration than it has thus far received.”  Further, she notes, “King raises a number of reasons to doubt [the government’s] reading” of the FTCA.

The Sixth Circuit will now decide whether the type of immunity the government requests ever applies when constitutional claims and FTCA claims are brought in a single lawsuit.

“When we go back to the 6th Circuit, this should not be a close call,” said Jaicomo.  “As Justice Sotomayor said in her concurrence, the government argues for a significant departure from the normal operation of common law, and the 6th Circuit will now get the opportunity to make it absolutely clear.”

“When the 6th Circuit finally rules that claims brought in the same lawsuit do not cancel each other out simply because a government employee is the defendant, this will send a clear message to the rest of the courts of appeals that they should abandon the loophole they have been using for years to deny individuals like James King their day in court,” said Bidwell.

“I am  happy with the outcome,” said IJ client James King.  “The fight continues, and this time on our terms.  I’m looking forward to being back in court.  The officers who assaulted me are not above the law and neither is anyone else, simply by virtue of being employed by the government.”

The opinion released this morning is consistent with the questions Justices asked during the oral argument, where the focus was on whether it makes sense to overturn centuries of common law and deny accountability by creating a special loophole for the government.

“We look forward to going back to the 6th Circuit and making it harder for government workers to violate the Constitution without consequences,” said IJ President and General Counsel Scott Bullock.  “This was the Institute for Justice’s first case we argued before the High Court as part of our Project on Immunity and Accountability, but it won’t be the last.  Just as IJ spotlighted and curtailed government abuse in the form of eminent domain for private gain and civil forfeiture, we will continue our work in the courts of law and in the court of public opinion until immunity doctrines are exposed and curtailed if not eliminated entirely.”

“Rights without remedies are not rights,” explained Patrick Jaicomo.  “The U.S. Supreme Court’s decision allowing King to continue his lawsuit gives power to the limits the Constitution places on government officials.”

The Institute for Justice’s Project on Immunity and Accountability seeks to hold government officials accountable when they violate individual rights like those of James King. As part of the Project, IJ will continue to fight against the many special protections that shield government officials from accountability.

For more information on this case, visit:  https://ij.org/case/brownback-v-king/.

Homeowner Facing $100,000 Parking Violation Sues Florida Town for “Excessive Fines”

West Palm Beach, Fla.—The town of Lantana has practically robbed Sandy Martinez of the value of her home through excessive fines, mostly as a result of the way she parks her own cars in her own driveway. One parking violation, assessed daily for over a year, totals more than $100,000. The total amount the town fined her, which includes two other minor infractions, comes to an astounding $165,000, more than half what her home is worth. It is also an amount that is impossible for Sandy to ever pay off.

But now Sandy is teaming up with the Institute for Justice (IJ) to file a lawsuit that asks a Florida court to rule that her excessive fines violate the state constitution. If Sandy’s suit is successful, it could pave the way for other Floridians to seek protection from crippling fines that trap them in a cycle of debt and poverty.

“The government cannot lock you into a lifetime of debt and cripple you financially for minor infractions that do not threaten health or safety,” said IJ Attorney Ari Bargil. “Florida’s Constitution forbids fines that are ‘excessive’ or ‘shock the conscience.’ And that’s exactly how to describe six-figure fines for petty violations—unconscionable.”

The $165,000 that Sandy owes is a result of daily fines that the city assessed for property code violations. Most of this amount is a result of the way Sandy’s family parks their cars. Sandy, her two adult children and her sister all own cars so that they can get to their jobs. When all four cars are parked in the driveway, sometimes one of them has two tires on the lawn, a $250 per day violation.

With no other safe or legal options for parking other than the driveway, Sandy has received several citations. When Lantana cites a homeowner, the city forces them to correct the violation then call and schedule another inspection. After one violation, Sandy called the city but an inspector never came out. When Sandy discovered that the fines were still accruing over a year later, she immediately called and passed the inspection. But by then, the amount she owed was $101,750. This fine is on top of fines for two other similarly trivial violations—for cracks in the driveway and a fence that fell over during a storm.

“I think it’s ridiculous that Lantana would charge me over $100,000 for parking on my own grass that I paid for,” said Sandy. “Fines I can never hope to pay off and that basically make me a renter in my own home are ‘excessive.’ I hope that by successfully challenging these fines, I can ensure that no one else has to go through something similar.”

Unfortunately, Sandy is far from the only American to be crushed by sky-high code citations. A 2017 report by the U.S. Commission on Civil Rights revealed how municipal fines and fees abuse is a nationwide problem. Yet some states, such as Indiana and California, have started to consider an offender’s ability to pay when assessing fines and fees. Florida’s Constitution protects residents from excessive fines and courts have held that fines that “shock the conscience” are unconstitutional. Sandy’s case could more firmly establish when fines violate the state constitution.

“Municipal code enforcement in America is completely out of control,” said IJ Attorney Michael Greenberg. “All over the country, hardworking people regularly face financial ruin from daily code enforcement penalties that quickly snowball into tens or hundreds of thousands of dollars. Our constitutional protection from excessive fines prohibits precisely this sort of abuse.”

IJ has challenged abusive fines and fees across the country, notably in Dunedin, Florida, where a homeowner is facing foreclosure over $30,000 in fines for tall grass, and in Eagle, Wisconsin, where a couple has been assessed $90,000 for parking trucks on their rural property. IJ has successfully protected homeowners in California and Missouri from abusive fines and fees practices. In 2019, IJ released a study of cities that relied heavily on fines and fees to balance their budgets, “The Price of Taxation by Citation,” and in 2020 released a 50-state survey of state laws governing municipal fines and fees.

City Reforms Cottage Food Ordinance in Response to Institute for Justice Lawsuit

Lincoln, Neb.—The city of Lincoln has amended the cottage food ordinance that last year prompted a lawsuit by the Institute for Justice (IJ) and home baker Cindy Harper, in partnership with Husch Blackwell LLP.

In 2019, Cindy helped convince state lawmakers to adopt LB 304, which reformed Nebraska’s regulations for the home-based sale of shelf-stable foods like Cindy’s decorative sugar cookies. Specifically, LB 304 exempted cottage food producers from the burdensome permitting and inspection requirements that apply to commercial restaurants—as long as they register with the state and pass a simple food safety course.

Within months, however, the city of Lincoln went rogue by imposing the same permitting and inspection requirements on cottage food producers operating locally. So last year, Cindy teamed up with IJ to file a constitutional lawsuit to have the city’s ordinance declared preempted by LB 304.

The city initially dug its heels in, filing a motion to dismiss Cindy’s case. But in October, a state trial court denied the motion, noting the clear “tension” between the city’s ordinance and LB 304.

In response to the court’s decision, on Tuesday Lincoln’s City Council voted unanimously to amend its cottage food regulations. Under the new ordinance, cottage food producers registered under LB 304 simply have to file that registration with the city, and inspections are only allowed under narrow circumstances (for example, based on a specific complaint of food-borne illness).

“I’m very pleased with the revision to the ordinance and that cottage food producers in Lincoln can now work with regulations that are more in line with the state law,” said Cindy. “I want to thank the Institute for Justice and my attorneys for all the hard work that went into making this happen for all of us.”

“This new ordinance is a major improvement for cottage food producers in Lincoln,” explained IJ Attorney Joshua Windham, lead counsel on the case. “Shelf-stable foods like Cindy’s sugar cookies are just as safe in Lincoln as they are in the rest of the state, so there was never any reason for Lincoln to set itself apart with additional regulations. This new ordinance better reflects that reality.”

Cindy is currently consulting with her attorneys to decide how this development impacts the legal status of her case.

New Mexico House Approves Major Bill Against Qualified Immunity

By a vote of 39-29, the New Mexico House of Representatives approved a landmark bill on Tuesday that would let individuals sue government agencies for violating their rights. Critically, the proposed New Mexico Civil Rights Act (HB 4) would eliminate “qualified immunity” as a legal defense. 

Under qualified immunity, government officials can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law. Created by the Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in Section 1983, the federal statute that authorizes civil rights lawsuits against government agents. 

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Institute for Justice Attorney Keith Neely, who submitted testimony in favor of the bill.  “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”

Based on recommendations from the New Mexico Civil Rights Commission, and hewing closely to IJ’s model legislation, HB 4 would create a new way to hold government agencies accountable in state court. If local or state government employees violate constitutional rights while working within the scope of employment, victims can sue their government employer for damages. The bill does not create personal liability for government employees, and instead requires agencies to fully cover all legal costs for their employees. HB 4 also caps claims at $2 million (including attorney’s fees). 

Long an obscure legal rule, qualified immunity now faces widespread opposition in the wake of the killing of George Floyd by Minneapolis police officers. Over the summer, Colorado became the first state to pass a law blocking qualified immunity from being used as a defense in court. However, unlike the Colorado bill, New Mexico’s reform would apply to all government employees, not just law enforcement officers. 

HB 4 has already earned the support of a broad, bipartisan coalition that includes the Institute for Justice, the ACLU, Americans for Prosperity, the Innocence Project, and the National Police Accountability Project. The coalition recently issued a letter urging the legislature to take this “unique opportunity to lead the country in civil rights reform.” 

“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” noted IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”

National Food Freedom Advocate Endorses Bill That Would Expand Food Freedom in South Carolina

South Carolina is one step closer to taking a major step forward for food entrepreneurs and the “buy local” movement with the introduction of S. 506, which would expand the types of homemade foods South Carolinians can sell their neighbors to all shelf-stable foods, like jams, jellies, soup mixes and more. The legislation would also permit the sale of these foods via online orders, mail orders and retail. This would dramatically expand South Carolina’s food freedom, for current law limits home-produced food sales to just baked goods and candies. The Institute for Justice (IJ), the nation’s leading law firm for food freedom, supports the bill, which would benefit both consumers and entrepreneurs.

“South Carolinians should be able to freely buy and sell safe foods to their neighbors,” said IJ Attorney Tatiana Pino. “Especially now, the government should support giving its citizens the freedom to support themselves and their families through a homemade food business. This bill helps accomplish that goal.”

The bill would require home-based food products to be labeled with the name and address of the producer, or an identification number that can be used to trace the product if the producer does not want his or her address on the label. The label also requires a clear, all-caps label indicating that the food was produced at home.

For many South Carolinians, this freedom is not an abstract concept, but a needed change that would allow them to pursue their dreams and support their families.

Take Kathryn Riley, who lives in the suburbs of Charleston and wants to be able to mail cakes, pies and fruit tamales to local customers. Kathryn is disabled and can’t work outside the home, but does not receive government assistance. She loves baking, and if S. 506 becomes law, she intends to serve her community her tasty treats.

“I can’t drive or work outside my home because of disability, and this bill would help me bring some extra income for my family,” said Kathryn.

The stories for why South Carolinians want the legislature to pass S. 506 come in all kinds of different shapes and sizes, as do the businesses they plan to create. One South Carolinian who supports the bill previously worked as a professional baker, but gave up her business to homeschool her young son. She said this bill would give greater flexibility and let her expand her children’s opportunities and education.

Others already make some money through home-baked good sales but would like to expand that to a full-time business, which would allow her to be with her family more. Under South Carolina’s current food freedom laws, a full-fledged home-produced or “cottage food” business is not very feasible.

Whatever their reasons or long-term goals, the expansion of food freedom in the Palmetto State would mean new economic activity for families that need it most. Raw data backs up the effect these legal changes can have on working families: After IJ sued Minnesota for its homemade food laws, the state eased its restrictions in 2015, leading 3,000 cottage food producers to register with the state in just two years.

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women living in rural areas.

AFP South Carolina Director of Grassroots Operations Candace Carroll praised the effects the bill would have on South Carolina’s economy if passed into law, saying, “South Carolina’s ‘cottage food laws’ are burdensome regulations on the sale of homemade foods. S 506 would remove these barriers and allow South Carolina’s homemade food producers to follow their passion and provide for their families. It’s time to free the food and recognize the benefits home cooking for profit can bring to entrepreneurs and food-loving South Carolinians.”

The bill now has a hearing scheduled for 9:00 a.m. EST Wednesday.

Sierra Vista Residents Sue City to Keep Their Homes in Place

Sierra Vista, Ariz.—Staring down the possibility of homelessness, three Sierra Vista residents ordered to move their RV homes sued the city today. The suit comes just days after the city council chose to enforce eviction orders initially issued in 2020. The Institute for Justice (IJ), which has been working with the homeowners since last summer, filed the lawsuit to protect the homeowners’ property rights under the Arizona Constitution.

“No one should be made homeless in the name of zoning,” said Paul Avelar, managing attorney of IJ’s Arizona office. “There is no health or safety reason for kicking our clients out of their homes. The city’s eviction orders are senseless and cruel and come in the middle of a pandemic.”

Amanda Root and Georgia and Grandy Montgomery live in the Cloud 9 neighborhood. For years they have lived in trailer homes the city deems RVs that are on property that they respectively own and rent. The neighborhood is dotted with derelict mobile homes, yet the city is seeking to evict well-maintained RV homes. Living in RVs is not illegal in the Cloud 9 neighborhood, just on the certain properties – including those occupied by Root and the Montgomerys.

Amanda Root has lived in Sierra Vista for 26 years and owned her property in Cloud 9 for 21 years. Unfortunately, Amanda’s manufactured home was lost to fire in 2016. Without insurance, she was not sure whether she would be able to afford another. Fortunately, friends donated the trailer she lives in now.

“I’m suing Sierra Vista because their order would make me homeless,” said Amanda. “I love my home, I take good care of my property and I shouldn’t have to move. It’s frustrating because I’m surrounded by houses that are falling apart and the city is doing nothing about them. I own this land, why should I have to go somewhere else?”

In July 2020, Cloud 9 residents received notices ordering them to move their homes within 30 days. The orders came without hearings, a procedure for appeal, or any court approvals. The city does not maintain that the homes are unsafe for their residents or a danger for the neighborhood. The lawsuit asserts that abusive zoning laws and failure to provide residents with due process before taking away their property rights are violations of the Arizona Constitution.

More broadly, restrictive zoning makes it difficult, and sometimes impossible, for people of modest means to live in modest homes. Amanda, Georgia and Grandy have affordable housing that allows them to live on their fixed incomes. The city is asking them to leave simply because it says so and without regard to the fact that the residents do not have clear options for other housing.

“Homelessness is a serious and growing problem and there’s broad agreement that restrictive zoning makes it nearly impossible for many Americans to find affordable housing,” said IJ Constitutional Law Fellow John Wrench. “Eviction should be a tool of last resort and should only come after homeowners have a chance to contest the order. Your property rights don’t depend on whether you live in a castle or RV.”

The Institute for Justice defends property rights nationwide. IJ successfully defended a neighborhood targeted with abusive fines in fees in Charlestown, Indiana. In Dunedin, Florida, IJ is defending a homeowner facing foreclosure over fines for tall grass. And in North Wilkesboro, North Carolina, IJ is helping a homeless shelter that was denied a permit despite meeting all of the city’s zoning requirements.

Seven Wisconsinites Challenge State Ban on Sale of Homemade, Shelf-Stable Foods

Thinking of buying your sweetheart chocolates this Valentine’s Day? They better not be homemade, or you will be breaking the law. Although Wisconsin prides itself on fostering fresh and locally made food, it has one of the most restrictive laws on selling homemade food in the country. That’s why yesterday afternoon, seven Wisconsinites and the Wisconsin Cottage Foods Association teamed with the Institute for Justice (IJ) to challenge Wisconsin’s ban on selling their homemade shelf-stable foods.

Wisconsin bans the sale of many homemade foods, including common and shelf-stable foods like chocolates, candies, fudge, Rice Krispies treats, granola and roasted coffee beans. These foods are completely safe and commonly sold in other states. Yet the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) aggressively enforces this ban, even sending cease and desist letters to those who dare violate the ban.

“Selling homemade foods is an important source of income for farmers, stay-at-home parents, restaurant workers, and so many others across the state,” said IJ Senior Attorney Erica Smith. “Now, during the pandemic, being able to have a home-based business is more important than ever. Yet Wisconsin persists in arbitrarily banning the sale of many safe homemade foods. We hope the courts will protect economic liberty and strike this ban down.”

This is not the first time DATCP has been sued for Wisconsin’s unreasonable restrictions on homemade foods. In 2016, three home bakers joined with the Institute for Justice to bring a lawsuit against DATCP for its ban on the sale of home-baked goods. Judge Duane Jorgenson of the Lafayette County Circuit Court struck down the ban in 2017 as unconstitutional under the Wisconsin Constitution’s protections for economic liberty. As Judge Jorgensen ruled, shelf-stable home-baked goods are completely safe, and just as safe as other homemade foods that Wisconsin allows to be sold—such as cider, popcorn, honey, syrups, jams and jellies. Although Wisconsinites can sell shelf-stable baked goods under the court ruling, the sale of other shelf-stable foods are still banned.

The plaintiffs in the new lawsuit are seven individuals from across the state, as well as the newly formed Wisconsin Cottage Foods Association, a nonprofit association of people who make and support the sale of homemade foods in Wisconsin. The goods they want to sell vary, from home-roasted coffee beans to chocolate cocoa bombs. And the scope of the businesses they plan to create differs, too, from a few extra dollars for their families to a full-time occupation.

Mark and Paula Radl, for example, are longtime residents of Manitowoc County, and they have been looking for ways to supplement their income as they get older. A friend who sells honey and maple syrup suggested they sell roasted coffee beans, and the Radls paid thousands of dollars to create a setup for them to do so. As a precaution, the Radls contacted their local county health department to approve their setup. The health inspector admitted the setup was clean and safe, but told them they could not legally sell their roasted coffee beans without a license and commercial-grade kitchen. That can cost over $40,000.

“My wife and I are very entrepreneurial and like the idea of being self-sufficient, and we both love coffee. We believe in fairness and opportunity for the little guy, and that’s why we’re joining this lawsuit,” said Mark Radl.

Stacy Beduhn of Outagamie County used to run a small day care, but she had to close it because of the pandemic. In the meantime, Stacy has started her own bakery, “Sweet Creations by Stacy.” Although Stacy can sell home-baked goods under the Court’s 2017 ruling, she still must turn away customers who request other homemade foods. “Customers are requesting that I make cocoa bombs and Valentine’s Day chocolates, but I have to turn those orders down,” said Beduhn. “It doesn’t make sense that I can sell a cookie, but not a chocolate.”

Even after the 2017 court ruling allowing the sale of baked goods, DATCP remains stubbornly aggressive. It has interpreted “baked good” to mean foods made with flour, and continues to ban sales of baked goods without flour, like granola. Along with the new lawsuit to allow shelf-stable homemade food sales, the bakers filed a motion yesterday for DATCP to follow the court order and allow the sale of all shelf-stable baked foods, regardless of whether they contain flour.

“Years ago, a Wisconsin court declared the state’s ban on home-baked goods unconstitutional. ‘Baked goods’ means ‘baked goods,’ not just baked goods made with flour,” said IJ Law & Liberty Fellow Suranjan Sen.

Lisa Kivirist, a plaintiff in the original lawsuit against Wisconsin’s baked-good ban, is joining the new fight to expand food freedom in Wisconsin. She sells shelf-stable breads and muffins, but she would like to sell flourless baked goods like granola as well as other shelf-stable treats like chocolates and fried donuts—homemade foods that Wisconsin prohibits from sale.

“As small-scale rural entrepreneurs, we’ve hit many barriers within our state when it comes to earning an honest livelihood. Because of the ruling against Wisconsin’s baked-good ban, we have hundreds of new business upstarts throughout the state. We can expand that so much further by expanding to all shelf-stable goods,” said Kivirist.

The plaintiffs are also represented by Isaiah M. Richie in West Bend, Wisconsin who is serving as local counsel.

The seven cottage food producers are challenging DATCP for violating a court order by continuing to ban the sale of baked goods not made with flour. The new lawsuit challenging DATCP’s ban on the sale of other shelf-stable foods challenges the ban as a violation of their due-process and equal-protection rights under the Wisconsin Constitution. All they ask is that people in Wisconsin be able to sell their safe, shelf-stable foods directly to consumers.

In Precedent-Setting Decision, Pennsylvania Commonwealth Court Shines Light on Controversial Forfeiture Records

Harrisburg, Pa.—Today, the Pennsylvania Commonwealth Court struck a blow for transparency and good government when it ruled that the names of successful bidders at public auctions of property seized and forfeited by law enforcement are public records that must be disclosed. Today’s ruling is a victory for the LNP | LancasterOnline and its reporter, Carter Walker, who sought the records as part of an investigation into the civil forfeiture practices of the Lancaster County District Attorney. In 2019, Carter and LNP teamed up with the Institute for Justice (IJ) to defend the requests after then-District Attorney Craig Stedman challenged them in court.

“Today’s ruling is a win for transparency and the right of Pennsylvanians to know what happens when law enforcement takes property,” said IJ Attorney Kirby West. “This victory means Carter and LNP will now be able to shed light on forfeiture practices and hold officials accountable in Lancaster County. And it will allow other members of the media and the public throughout Pennsylvania to request similar records to uncover forfeiture abuses in their own communities.”

After the Lancaster district attorney denied LNP reporter Carter Walker’s request for civil forfeiture records in September 2018, the Pennsylvania Office of Open Records said the records should be turned over. But former District Attorney Stedman appealed the decision in court and, although current District Attorney Heather Adams released some requested records upon taking office, she continued to claim that the names of winning auction bidders should not be turned over.

Today’s ruling from the Commonwealth Court rejected that plea for secrecy, with its decision firmly declaring that, “Disclosure of names of successful bidders at public auctions of forfeited items advances the accountability of the law enforcement authorities responsible for the civil forfeiture of property.”

“We’re pleased that Commonwealth Court agrees with LNP | LancasterOnline and the Institute for Justice that these records are a matter of great public interest and ought to be available for inspection by all citizens,” said LNP executive editor Tom Murse. “We look forward to using these public records, once shielded from public view by the former district attorney, to report more thoroughly on how Lancaster County uses civil forfeiture. The court’s ruling is a victory for transparency in government and, thus, a victory for all citizens of Pennsylvania.”

Sunlight is the best disinfectant, and it is nowhere needed more than in Pennsylvania. From 2002 to 2018, Pennsylvania law enforcement forfeited $279 million in property. And reports from other counties within the Commonwealth show that law enforcement officers have used their position and inside knowledge to purchase forfeited property sold at auction for their own financial gain. The loose laws surrounding forfeiture in the Commonwealth led IJ to bring a massive class-action to end the practice in Philadelphia. And by allowing the disclosure of the names of successful bidders, today’s ruling from the Commonwealth Court ensures that citizens throughout Pennsylvania will be able to hold law enforcement accountable for similar abuses of power.

New Report: Forfeiture Doesn’t Work to Combat Crime but Is Used to Raise Revenue

Arlington, Va.—Across the country, law enforcement agencies use forfeiture to take billions of dollars in cash, cars and homes under the guise of fighting crime. Yet a new study released today by the Institute for Justice (IJ), “Does Forfeiture Work?,” demonstrates that state forfeiture programs do not help police fight crime. Instead, the study indicates that police use forfeiture to boost revenue—in other words, to police for profit. The study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively—Arizona, Hawaii, Iowa, Michigan and Minnesota—as well as detailed state and local crime, drug use and economic data.

Specifically, the new study finds:

  • More forfeiture proceeds do not help police solve more crimes—and they may, perversely, make police less effective at solving violent crimes.
  • More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade—and the reduction of drug use—as a primary purpose of forfeiture.
  • When local budgets are squeezed, police respond by increasing their reliance on forfeiture. A one percentage point increase in unemployment—a common measure of economic health—is associated with an 11% to 12% increase in forfeiture activity.

“Law enforcement representatives have argued that any civil liberties intrusions from forfeiture are justified because the revenue helps fight crime, but the evidence does not support this”, said Dr. Brian Kelly, associate professor of economics Seattle University’s Albers School of Business and Economics and the study’s author. “In fact, the focus on bringing in revenue may well detract from efforts to fight serious, violent crimes.”

Watch a video interview with Dr. Kelly HERE.

This work builds on a 2019 nationwide study that considered whether the federal government’s equitable sharing forfeiture program was effective in fighting crime. Similarly, that study showed that forfeiture failed to fight crime but is used to raise revenue.

The scale of forfeiture is vast, with states and the federal government raking in at least $68.8 billion since 2000. With not all states providing complete data, this figure drastically undercounts property taken from people through forfeiture. The five states studied in “Does Forfeiture Work?” are among those that provide the most data, making this analysis possible.

The vast majority of forfeitures are conducted using civil forfeiture, a process that tips the scales heavily in the government’s favor. After the government seizes property, owners must navigate a maze of procedures to try to get it back. Owners are not afforded an attorney and the government need not charge them with a crime, let alone convict them of one, to forfeit—permanently keep—their property. Instead, the government just has to connect property to alleged criminal activity by a standard of proof that is typically far lower than the proof beyond a reasonable doubt required in a criminal trial. Finally, since many law enforcement agencies get to keep forfeiture proceeds, they have an incentive to seize as much as possible. These civil liberties concerns have prompted many states to closely consider or pass forfeiture reforms.

The findings from “Does Forfeiture Work?” are also reinforced by another recent study showing that when New Mexico eliminated civil forfeiture, public safety was not compromised. Compared to those in neighboring Colorado and Texas, crime rates in New Mexico remained steady in the months and years following the reform, suggesting forfeiture does not deter crime and law enforcement is able to do their jobs without forfeiture proceeds.

“This is more powerful evidence that lawmakers across the country need to prioritize ending civil forfeiture and replacing it with criminal forfeiture,” said Lee McGrath, IJ’s senior legislative counsel. “For years, law enforcement has maintained, on the basis of mere anecdotes, that forfeiture is essential to crime fighting and combating drug abuse. Lawmakers can ensure law enforcement is focused on public safety by removing the incentives to police for profit.”

Since the Institute for Justice began its End Forfeiture initiative in 2010, 35 states and the District of Columbia have enacted forfeiture reforms. Seven states and the District have restricted equitable sharing, limiting law enforcement’s ability to receive funding through the program and making it harder for law enforcement to circumvent state civil forfeiture laws. And in 2015, New Mexico abolished civil forfeiture, replacing it with criminal forfeiture and requiring that all forfeiture proceeds be deposited in the state’s general fund. In 2019, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

Tennessee Parents Ask Tennessee Supreme Court to Protect Education Savings Accounts for 2021-22

Last night, Natu Bah and Builguissa Diallo, two parents who partnered with the Institute for Justice (IJ) to defend the Tennessee Education Savings Account Pilot Program from a constitutional challenge levied against it in February, filed a motion with the Tennessee Supreme Court to ensure Tennessee families can use Education Savings Accounts (ESAs) in the upcoming 2021-22 school year should they prevail in the Tennessee Supreme Court. As of now, due to an injunction issued last year by the Chancery Court of Davidson County, even if Bah and Diallo prevail in Tennessee’s high court, they along with other Tennessee families will not have ESAs available in the fall unless the injunction is modified.

“Parents like Natu and Builguissa are among the thousands who will send their kids to better schools because of this program. This motion will ensure that they’re able to do so once the program is ruled constitutional,” said IJ Attorney Keith Neely.

The Chancery Court’s injunction went into effect in May 2020 and stops the Tennessee Department of Education from processing ESA applications and taking the administrative steps to ready the ESA program. In a September ruling against the program, the appeals court of appeals affirmed the lower court and ruled that the ESA program was unconstitutional under the Tennessee Constitution’s Home Rule Amendment. On February 4, the Tennessee Supreme Court granted review and will hear the case.

“The need to protect educational choice for Tennessee families is made even more clear by Metro Nashville and Shelby County shutting the doors to the public schools while simultaneously working to extinguish the educational options that empower parents to go elsewhere,” said IJ Managing Attorney Arif Panju. “Parents will vindicate their right to choose the best education for their children at the Tennessee Supreme Court.”

At issue in the Tennessee Supreme Court is how to interpret the Home Rule Amendment, a provision of the state constitution that prohibits the General Assembly from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.”

But the ESA program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. ESAs simply empower low- and middle-income families with children assigned to some of Tennessee’s worst-performing schools, and does so by allowing them to receive their education benefit in an ESA so that they can afford private educational options that meet their needs.

The ESA program was passed in 2019 by the Tennessee Legislature. The program can offer a lifeline to families that would like to leave underperforming school districts that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying low- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

Oral argument will be scheduled following the completion of briefing.

New Illinois Bill Would Protect the Right to Garden 

Late last week, Rep. Sonya Harper filed the Illinois Vegetable Garden Protection Act (HB 633), which would preserve and protect the right of all Illinoisans to “cultivate vegetable gardens on their own property, or on the property of another with the permission of the owner, in any county, municipality, or other political subdivision of this state.” The Act would protect the right to grow vegetables, as well as “herbs, fruits, flowers, pollinator plants, leafy greens, or other edible plants.” For many Illinoisans, this reform has been a long-time coming, as similar measures have come close to passage in prior sessions. A companion bill (SB 170) has also been introduced by Sen. David Koehler.  

“I just want to grow my own food on my own property. In America, that really shouldn’t be such a controversial idea, and it certainly shouldn’t be illegal,” said Nicole Virgil, an Elmhurst resident whose efforts to grow vegetables in her rear yard have been repeatedly stymied by local officials. “I want to teach my kids the importance of self-sufficiency and self-reliance. I want them to understand and appreciate where food comes from. It’s time that our representatives enact reforms to protect my right to do that.”

If passed, Illinois would become a national leader in the local food movement, becoming just the second state to provide express protection for the right to grow one’s own food. In 2019, Florida enacted the nation’s first statewide Vegetable Garden Protection Act, which sprouted from a years-long legal battle the Institute for Justice fought on behalf of a Miami Shores couple that was forced to uproot their 17-year old vegetable garden, after the city banned vegetable gardens in front yards. The Florida and Illinois legislative reforms are part of IJ’s National Food Freedom Initiative, which promotes the ability of individuals to produce, procure and consume the foods of their choice.

“This bill strips local governments of the power to impose HOA-style prohibitions on an act of self-sufficiency in which humans have been engaged for thousands of years,” said IJ Attorney Ari Bargil. “Just about a year ago, as fears of the COVID-19 pandemic took hold nationwide, many Americans developed grave concerns about the weaknesses in our nation’s food-supply chain as grocery stores rationed purchases and shelves grew depleted. If we’ve learned anything from the past twelve months, it’s that the ability to grow food is not just a right—for many, it is a necessity. Passing this bill is an important step in the march for food freedom for all Americans.”

National Food Freedom Advocate Announces Support of Bill Expanding Food Freedom in New Mexico

Albuquerque bans the sale of home-baked goods and New Mexicans living outside its largest city suffer from onerous regulations that make it difficult to start a homemade, or “cottage foods” business. A new bill being introduced Tuesday at 8:30 a.m. MST would permit New Mexican entrepreneurs in any city to start their own home-based food businesses, and it would also allow home-based food producers to easily sell properly labeled shelf-stable foods identified as homemade—similar to what is allowed in other states nationwide. The Institute for Justice (IJ), the nation’s leading advocate for food freedom, welcomes the effort to expand food freedom throughout New Mexico.

“Every year, more states expand their homemade foods laws, but New Mexico is still at the back of the pack,” said Erica Smith, senior attorney at the Institute for Justice and legal expert on cottage food laws. “These laws are great for farmers, stay-at-home parents, people with disabilities and many others who have a talent in the kitchen but want or need to work from home. Now during the pandemic, making it easier for people to work from home is crucial.”

After Albuquerque mother Katie Sacoman’s daughter was born, she quit her teaching job to watch her grow up, but she still wants to make some money to support her family doing what she likes best: baking.

After learning of the ban, Katie contacted the city to see if this was something that could be changed. She was told there were no plans to at this time, a fact so frustrating to her she considered moving, ultimately deciding against it because she loves Albuquerque and because her husband works in the city. Katie supports HB 177 because it would let her to continue raising her daughter at home while following her dreams of selling her popular sugar cookies to support her family.

“I’ve been looking into building this business for three years, and I haven’t been able to because of these restrictions. Having the ability to build a business that I can fit my family’s schedule around would be such a great privilege,” Sacoman said.

Albuquerque is one of the only cities in the country that still bans the sale of homemade food. Should Albuquerque lift its ban, it would create dozens, perhaps even hundreds of small businesses. After IJ sued, Minnesota eased its restrictions on cottage food sales in 2015, leading 3,000 cottage food producers to register with the state in just two years. Texas saw similar development after it expanded its cottage food laws. Albuquerque could similarly benefit from lifting its restrictions.

New Mexicans outside Albuquerque do not have it much better. The current law bans sales from the home, which are allowed in virtually every other state. The law also bans online sales, which have been increasingly popular in other states during the pandemic. Instead, sellers can only sell at farmers markets, roadside stands and special events. The bill would fix these restrictions.

Current state law also requires would-be cottage food producers to go through a burdensome application process to get a permit, just to sell safe and shelf-stable foods like cupcakes or bread. The permit application includes pages of paperwork, a $100 fee, a kitchen inspection, a food safety course, and unnecessary requirements for home kitchens that sometimes require thousands of dollars in upgrades, such as installing extra sinks. In addition, cottage food producers must provide health inspectors with each of their recipes, and keep samples of all their sold products. This is in contrast to other states, that allow cottage food producers to start selling without a permit or inspection or meeting other burdensome requirements. The bill would remove these barriers.

“Home bakers throughout New Mexico just want to do what people throughout the country have been safely doing for years: sell shelf-stable goods like cookies to support themselves and their families,” said IJ Activism Assistant Ellen Hamlett

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women living in rural areas. Even a small amount of extra income from a cottage food business can be helpful to lower-income Albuquerque households struggling during the pandemic.

The hearing on HB 177 will be in front of the House Agriculture and Water Resources Committee. The bill is sponsored by Rep. Zach Cook.

Maine Parents Appeal School Choice Case To U.S. Supreme Court

Arlington, Virginia—May states bar parents from participating in a student-aid program because they send their children to schools that provide religious instruction, or does that violate the Constitution?  That is the question the Institute for Justice (IJ) has asked the U.S. Supreme Court to resolve as it appeals a federal court ruling that discriminates against parents who select such schools.

In 2020, the Institute for Justice earned a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. The Court held that discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.

Despite that ruling, the 1st U.S. Circuit Court of Appeals, in October 2020, upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, which was created in 1873, the state pays for students who live in towns that do not maintain a public school to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Until a flawed legal opinion by the state’s attorney general in 1980, parents were free to exercise their independent choice to select religious schools as one of their options. Now, however, the school that parents select for their child must be “nonsectarian,” which the state interprets to mean a school that does not provide religious instruction.

According to the 1st Circuit’s decision upholding this exclusion, the exclusion turns not on the religious “status” of the excluded schools, but rather on the religious “use” to which a student’s aid would be put—that is, procuring an education that includes religious instruction. In other words, the court held that although Espinoza prohibits Maine from excluding schools because they are religious, it can prohibit parents from choosing schools that do religious things.

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Institute for Justice Senior Attorney Michael Bindas. “Parents deserve the right to choose the school that is best for their children, whether it’s a school that focuses on STEM instruction, offers language immersion, or provides robust instruction in the arts. Maine correctly allows parents to choose such schools—or virtually any other school they think will best serve their kids. But the state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”

“Religious discrimination is religious discrimination,” Bindas said. “By allowing nominally religious schools to participate but excluding schools that actually provide a religious curriculum, Maine is making governmental decisions about how religious is too religious. Government should not have that power. It violates the Religion Clauses and Equal Protection Clause of the U.S. Constitution.”

“In student-aid programs like Maine’s, parents—not the government—choose the schools their children will attend,” said IJ Attorney Arif Panju. “If parents believe a school that provides religious instruction is best for their child, the state should not be allowed to deny them that choice.”

There is a significant split of authority among courts across the nation on this issue. The 6th and 10th U.S. Circuit Courts of Appeals have held that government may not bar families participating in student-aid programs from choosing schools that provide religious instruction. The Vermont Supreme Court and now the 1st U.S. Circuit Court of Appeals, however, have upheld such religious exclusions.

“The Court should grant this case and resolve this issue once and for all,” Bindas said. “Whether there is a constitutionally significant difference between discrimination based on ‘religious status’ and discrimination based on ‘religious use’ is a profoundly important question, especially in the context of student-aid programs—programs that operate on the private choice of individuals. In such programs, any religious use of a benefit should be attributable to the individual recipient—the parent—and not to the government. States should not be permitted to withhold an otherwise available education benefit simply because a student would make the private and independent choice to use that benefit to procure an education that includes religious instruction.”

Maine’s exclusion of religious schools harms families like the Carsons and the Nelsons. Both families live in a school district that neither operates a public secondary school nor contracts with a particular secondary school for the education of its resident secondary students. Accordingly, the Carsons and Nelsons are entitled to the tuition assistance benefit. Because of the exclusion of religious schools, however, neither family can use the benefit at the school they believe is best for their child.

Amy and Dave Carson send their daughter to Bangor Christian Schools, a private, nonprofit school in Maine. They selected Bangor Christian because the school’s worldview aligns with their sincerely held religious beliefs and because of the school’s high academic standards.

The Maine Department of Education Department classifies Bangor Christian, which is fully accredited by the New England Association of Schools and Colleges, as a “private school approved for attendance purposes” and, thus, in satisfaction of Maine’s compulsory attendance laws. But because the school is “sectarian,” “instilling a Biblical worldview in its students” and “intertwin[ing]” religious instruction with its curriculum, it cannot be approved for tuition assistance. Consequently, the Carsons must pay their daughter’s tuition out-of-pocket.

Angela and Troy Nelson send their children to Erskine Academy, a secular private high school that is approved for tuition assistance purposes. However, they would prefer to send them to Temple Academy, a school that aligns with their sincerely held religious beliefs. Temple, like Bangor Christian, is fully accredited, but because it is “sectarian,” Maine excludes it from the state’s tuition assistance program. Because the Nelsons cannot afford tuition for their children to attend Temple, they remain at Erskine Academy, despite their firm belief that Temple would better meet their educational needs.

Meanwhile, schools that are only nominally religious are perfectly free to participate in the tuition assistance program. For example, Cardigan Mountain School—a private school in New Hampshire that purports to teach “universal . . . spiritual values,” both “in and out of the classroom” and at its required weekly chapel meetings—was approved to participate in the program. Yet a student cannot attend a Jewish, Catholic or Islamic school with her tuition assistance benefit.

Lea Patterson, an attorney with First Liberty Institute, which serves as co-counsel with the Institute for Justice in this case, said, “For 40 years, Maine has rejected parental choice in education and allowed religious discrimination to persist. The Supreme Court should act now so yet another generation of schoolchildren is not deprived of desperately needed educational opportunity and the right to freely exercise their religion.”

“The Supreme Court taking this case and ruling in favor of the parents will ensure that educational choice programs can provide a wide range of school options—whether public or private, religious or non-religious—that enable parents to find a school that best meets their children’s individual needs,” said Institute for Justice President and General Counsel Scott Bullock. “Now more than ever, it’s time to expand educational opportunities for all families.”

#  #  #

(For a full discussion of this U.S. Supreme Court appeal with IJ Senior Attorney Michael Bindas and IJ Maine school choice client Amy Carson, click here: https://www.youtube.com/watch?v=TeMoGkTibdU)

For more information on this case, visit https://ij.org/case/maine-school-choice-3/ or contact John E. Kramer, vice president for communications at jkramer@ij.org or call (703) 682-9323 ext. 205.

Tennessee Supreme Court to Hear Parents’ Appeal Defending School Choice Program

Monday afternoon, the Tennessee Supreme Court announced that it will hear the appeal from Natu Bah and Builguissa Diallo, two parents who partnered with the Institute for Justice (IJ) to defend the Tennessee Education Savings Account Pilot Program from a constitutional challenge levied against it in February. Bah and Diallo planned to use the ESAs to send their children to better-performing schools.

“Parents will vindicate their right to choose the best education for their children at the Tennessee Supreme Court,” said IJ Senior Attorney Arif Panju. “The Home Rule Amendment does not allow local governments to extinguish Tennesseans’ educational options.”

In the September ruling against the program, the appeals court ruled that the pilot program was unconstitutional under the Home Rule Amendment of the Tennessee Constitution. This provision prohibits the legislature from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.” But the program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. The law simply empowers low- and middle-income families with children assigned to some of Tennessee’s worst-performing schools, and does so by allowing them to receive their education benefit in an ESA so that they can afford private educational options that meet their needs. The parents filing today’s appeal are asking the Tennessee Supreme Court to reverse the appellate court and restore Tennessee’s Education Savings Account Pilot Program.

The ESA program was passed in 2019 by the Tennessee Legislature. The program can offer a lifeline to families that would like to leave underperforming school districts that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying low- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

Oral argument will be scheduled following the completion of briefing.

Oklahoma Eyebrow Threaders File Lawsuit Against Irrational Licensing Requirement

Oklahoma City, Okla.—Should Oklahoma entrepreneurs be forced to spend thousands of dollars and at least 600 hours on esthetician coursework that does not even teach their trade?

That question has led two Oklahoma eyebrow threading business owners, Shazia Ittiq and Seema Panjwani, to join forces with the Institute for Justice (IJ) to challenge the constitutionality of the licensing requirement that the Oklahoma Board of Cosmetology imposes on eyebrow threaders. The Board requires all threaders to hold at least an esthetician license. And last week, the Board ordered Shazia to shut down her business immediately for employing threaders without an esthetician license. She is filing for a temporary restraining order to block enforcement of the unconstitutional licensing requirement as litigation proceeds.

The lawsuit, filed late yesterday, challenges this licensing requirement as violating the Oklahoma Constitution’s due process clause and its inherent rights clause. Like Oklahoma, Texas previously mandated that eyebrow threaders hold at least an esthetics license. Then, following a lawsuit from eight eyebrow threaders who partnered with IJ, the Texas Supreme Court in 2015 reaffirmed its state constitution’s protections for Texans to work in the occupation of their choice without unreasonable government interference. The Oklahoma Constitution offers the same kind of protections to Oklahomans.

“Threaders don’t need a license to do their jobs across the border in Texas. And they shouldn’t need one in Oklahoma, either,” said IJ Attorney Marie Miller. “Threaders in Oklahoma have been providing high-quality, safe services to customers for years. They shouldn’t be put out of work because the Cosmetology Board demands they learn and prove competency in unrelated skills.”

Eyebrow threading is an ancient grooming technique common in South Asian and Middle Eastern countries, and has been passed down for generations. The threader makes a loop in a strand of cotton thread by twisting the strand around itself multiple times, then slides and traps unwanted hairs in the loop and lifts them from their follicles. The technique is often learned at a young age from family or friends, and it uses no chemicals, heat or sharp objects.

The experienced threaders in Oklahoma have become highly skilled in the technique, and requiring them to spend in some cases over $10,000 to obtain a license for services they will never provide, all to obtain permission to do the job they have already mastered, makes no sense. And because Oklahoma’s esthetician coursework does not teach threading and the esthetician exams do not test threading, licensed estheticians—who are permitted to thread commercially—do not necessarily know how to thread. As a result, threading salon owners like Shazia and Seema cannot employ enough licensed threaders to sustain a successful business. That, in turn, limits consumers’ access to eyebrow threading services.

“Threaders do not need to learn unrelated skills to become threaders. They have been doing it to each other for generations,” said Shazia Ittiq, owner of Brows & More, a threading salon in Oklahoma City. “Without this license requirement, I can serve more clients, and women can support their families without going off to school for a skill they know.”

The threading salon owners, with IJ, contend that applying the esthetics licensing requirements to threaders violates the Oklahoma Constitution’s due process clause because the regulations force threaders to complete onerous licensing requirements that bear no relation to their jobs, and they treat threaders the same as people who provide very different services. The state constitution’s inherent rights clause reinforces this right to earn an honest living free from unreasonable government regulation, because it recognizes that Oklahomans have an inherent right to the “enjoyment of the gains of their own industry.”

“Forcing eyebrow threaders to undergo fifteen weeks of irrelevant training is not just wrong: it violates the Oklahoma Constitution,” said IJ Senior Attorney Wesley Hottot. “The Oklahoma licensing requirements don’t protect the public; they just put skilled threaders out of a job.”

In addition to its 2015 victory on behalf of eyebrow threaders in Texas, IJ has also sued Arizona and Louisiana over their licensing requirements for eyebrow threaders, leading those states to allow threaders to operate without a license.

The threaders have applied for a temporary restraining order, and a hearing is expected in the next two weeks.

MEDIA ADVISORY

EVENT:

REMINDER OF THIS COURT ARGUMENT RESCHEDULED FROM JANUARY
Indiana Supreme Court Hears Timbs Excessive Fines Argument, for Third Time,
After U.S. Supreme Court Unanimously Overturns Earlier Ruling
& Trial Court Awards Timbs His Vehicle

DATE/TIME:
Thursday, February 4, 2021 / 9 a.m. EST

PLACE:
Indiana Supreme Court
Livestreamed on the court’s website:
https://mycourts.in.gov/arguments/default.aspx?court=sup

The livestream, which was originally scheduled for January, will begin two minutes prior to the argument. If you are unable to watch live, you can still view the argument at this link two hours after its conclusion.

PARTICIPANT:
Sam Gedge, Attorney, Institute for Justice

CONTACT:
John Kramer, IJ VP for Communications, (703) 682-9323 ext. 205

SUMMARY:
Will the third time before the Indiana Supreme Court finally be the charm for Tyson Timbs to resolve once and for all the legal case over the government’s seizure of his vehicle? Indiana’s lower courts have repeatedly ruled that taking Timbs’ vehicle for a low-level drug offense violates the Eighth Amendment’s Excessive Fines Clause. In 2019, the case also prompted the U.S. Supreme Court to rule definitively that the Excessive Fines Clause applies not just to the federal government, but to the states as well. Since then, the trial court in Grant County, Indiana, has once again ruled that the state’s forfeiture campaign against Timbs amounts to an unconstitutional excessive fine. The State of Indiana, once again, has appealed.

At the hearing at 9 a.m. on Thursday, February 4, 2021, Sam Gedge, an attorney for the Institute for Justice, which represents Timbs, will argue that the lower court got it right. Timbs’ misconduct was relatively minor: while struggling with addiction, he was induced by undercover officers to sell drugs—to them, and to them alone. And since pleading guilty in 2015, Timbs has turned his life around, holding down jobs, participating in treatment and caring for a sick aunt. But throughout, the government has made his recovery immeasurably harder by trying to strip him of his car. Following last year’s trial-court ruling, the state finally returned Tyson’s vehicle to him. But the case isn’t over; the state has again appealed, reprising an extreme argument that it debuted before the U.S. Supreme Court in 2018: the government should be allowed to impose any forfeiture—no matter how punitive—for any crime, no matter how minor.

Before the trial court, the Institute for Justice successfully argued that the forfeiture imposed on Timbs violates the Excessive Fines Clause. It will be defending that ruling on appeal.

Attorney Gedge said, “Incredibly, the State of Indiana has devoted nearly a decade to trying to confiscate a vehicle from a low-income recovering addict. No one should have to spend eight years fighting the government just to get back their car.”

Watch the argument live at:
https://mycourts.in.gov/arguments/default.aspx?court=sup

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Veteran Beaten by Police in Unprovoked Assault at VA Hospital Appeals Case to U.S. Supreme Court

“It was three against one, and they had guns. I knew better than to resist.”

5th Circuit Rules Federal Officers Can’t Be Sued
Even If Qualified Immunity Doesn’t Apply to Them

Arlington, Virginia—José Oliva survived the bloodiest year in Vietnam, but he most feared for his life when he was brutally beaten in an unprovoked attack by federal officers in a Veterans Affairs hospital in his hometown of El Paso, Texas that left him with several injuries, two of which required surgery. On January 29, 2021, the Institute for Justice filed an appeal to the U.S. Supreme Court asking it to reverse the 5th Circuit decision that ruled federal officers—such as those in a VA hospital—may act with impunity and not be held accountable for their actions, no matter how unconstitutional.

“I feared for my life,” José said. “I survived the bloodiest year in Vietnam, and here I was fearing for my life as these officers beat and choked me in a VA hospital in my own hometown. It was three against one, and they had guns. I knew better than to resist.”

José is a native of El Paso, Texas and a Vietnam War vet, who served nearly three decades in law enforcement, and advocated on behalf of veterans in his hometown and nationwide.

In February 2016, federal police working as security at an El Paso VA hospital assaulted José as he was entering the hospital for a dentist appointment. As a result of the assault, José suffered an injured shoulder and neck, each of which required surgery, along with a ruptured ear drum. The officers charged José with disorderly conduct—a charge that was dismissed.

When José sued the officers, a predictable thing happened. The officers invoked qualified immunity—a controversial doctrine that the Supreme Court invented in 1982 to protect government workers from being sued for unconstitutional conduct. The district court denied the officers qualified immunity. The 5th Circuit, however, agreed with the officers and reversed the district court, holding that even if qualified immunity were not available, José still can’t sue because he was assaulted by federal—and not state—officers.

“This decision is wrong,” said IJ Attorney Anya Bidwell. “Federal officials are not above the Constitution. The 5th Circuit’s decision disregards Supreme Court precedent and departs from the consensus of other courts of appeals that have considered this same issue. As a result, Texas, Louisiana and Mississippi are now constitution-free zones, as far as federal police are concerned. And there are more than 17,000 federal police who work within the jurisdiction of the 5th Circuit.”

The Institute for Justice is asking the Supreme Court to reverse the 5th Circuit’s decision and let the case proceed to trial.

“If the Fourth Amendment doesn’t protect a 70-year-old veteran beaten by federal police inside a veterans’ hospital for no reason, it doesn’t protect anyone,” said Patrick Jaicomo, an attorney with the Institute for Justice, which represents José.

IJ President Scott Bullock said, “IJ, through our Project on Immunity and Accountability, seeks to ensure that the Constitution serves to limit the government in fact, not just in theory, and that promises enshrined in its Bill of Rights are not empty words but enforced guarantees.”

Jaicomo said, “The Supreme Court will have to decide which court was right in José Oliva’s case: the trial court that ruled the officers should have known they couldn’t beat and choke a veteran in an unprovoked attack, or the 5th Circuit, that ruled that it didn’t matter and the officers cannot be held to account for their actions, thus fully immunizing the federal officers. For the sake of every veteran who goes into a VA facility, José hopes the Supreme Court accepts his case and finds in his favor.”

José’s petition further asks the Court to call for the view of the U.S. Solicitor General. With the new administration in office, it will be important for the Court, as well as the rest of the nation, to know where the chief appellate lawyer for the federal government stands on the issue of accountability for federal police.

As a former law enforcement officer, José’s goal in bringing this lawsuit is to ensure that other law enforcement officers respect the Constitution. When rogue law enforcement agents are allowed to violate the Constitution without consequence, the reputations of good law enforcement officers suffer.

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For more information on this case, visit https://ij.org/case/oliva-v-nivar/ or contact John E. Kramer, vice president for communications at jkramer@ij.org or call (703) 682-9323 ext. 205.

South Padre Island Continues to Enforce Food Truck Laws Declared Unconstitutional by Texas Court

Brownsville, Tex.—Just six weeks ago, Judge Arturo Cisneros Nelson struck down South Padre Island’s anti-competitive food truck permit cap and restaurant-permission scheme. The district court ruled that the city violated the Texas Constitution when it forced food truck owners to get permission from local restaurant owners before being eligible for a food truck permit, and by making it illegal for more than 12 food trucks to open for business on the island.

Astonishingly, South Padre Island’s city government continues to enforce both unconstitutional restrictions despite the ruling. Despite its public statements, the city has not appealed the court’s ruling declaring the permit cap and restaurant-permission scheme unconstitutional; it appealed only a separate ruling rejecting its meritless argument that Texas cities are immune from the Texas Constitution. Nor has the city asked any Texas court to suspend Judge Nelson’s judgment. Today, the Institute for Justice (IJ), which represents food truck owners, filed a motion in the Thirteenth Court of Appeals (Corpus Christi–Edinburg, Texas), asking the court to prohibit the city of South Padre Island from enforcing the two restrictions that Judge Nelson declared unconstitutional and permanently enjoined.

“The city’s disregard of its own citizen’s constitutional rights and its lack of transparency should concern everyone,” said Arif Panju, Managing Attorney of IJ’s Texas Office. “It is astonishing that we had to ask the court of appeals to order what the district court already made clear: the city’s food truck permit cap and restaurant-permission scheme are unconstitutional and therefore unenforceable. By continuing to enforce both restrictions, the city and its officials are violating a court order while flouting the authority of Texas courts and the Texas Constitution.”

In February 2019, IJ challenged the city of South Padre Island’s anti-competitive restrictions on behalf of food truck owner SurfVive, a local nonprofit spearheaded by Erica Lerma, and the Brownsville-based Chile de Árbol food truck operated by brothers Anubis and Adonai Avalos. Both food trucks were forced to the sidelines and could not operate under the city’s permitting scheme. They won in the district court after proving that the two restrictions do not protect health and safety, but rather only the profits of local restaurant owners who helped write the ordinance.

Victory for Charlottesville Writers: City’s Tax on Freelance Authors Declared Unconstitutional

Charlottesville, Va.—Today, Judge Claude Worrell of the 16th Judicial Circuit of Virginia declared Charlottesville’s business license tax, as selectively applied to freelance authors, unconstitutional. For the past few years, Charlottesville and surrounding Albemarle County assessed freelance authors a business license tax, even if they did not run a business or a storefront of any kind. The city and county business codes cover dozens of occupations but don’t mention writers, who therefore had no notice that they would be taxed. What’s more, other kinds of media like newspapers and magazines are specifically exempted. This selective taxation violates the First and Fourteenth Amendments to the U.S. Constitution. In response, novelists Corban Addison and John Hart partnered with the Institute for Justice (IJ) to challenge Charlottesville and Albemarle County’s respective taxes. Last month, Judge Worrell rejected Addison’s First Amendment claim at a hearing but ruled today on the Fourteenth Amendment claim. 

“Charlottesville’s business-license code allowed tax collectors to target anyone in the name of raising revenue, whether they were actually covered by the tax or not. Today’s decision means that when Charlottesville taxes its residents, it must do so constitutionally,” IJ Attorney Renée Flaherty said.  

Business license taxes are supposed to defray the cost of infrastructure that businesses and their customers use. But while writers like Corban and John put no burden on city or county infrastructure, the city and county saw them as an untapped source of revenue. Charlottesville argued that Addison, even though all he does is sit in a room and write stories, is running a full-fledged business. 

Judge Worrell wrote that “The City has argued that [Mr. Addison] provides a service or business to his publisher. The Court disagrees. The Court finds the argument that [Mr. Addison] provides a service to this publisher to be forced, strained, or contrary to reason.” 

“Today’s decision mandates that Charlottesville’s creative class will no longer be subjected to an arbitrary, unconstitutional tax,” said IJ Attorney Keith Neely. Taxes must be certain and applied evenhandedly.” 

“The court’s ruling today affirms the instinct I had when I first read the City’s business license code: Authors are nowhere to be found in it,” Corban Addison said. “I have always paid my lawful taxes. But to be taxed under an ambiguous catch-all provision in the City Code at the sole behest of the Commissioner of the Revenue is manifestly unfair. I am gratified that the court agrees. 

While Corban’s lawsuit against Charlottesville’s levying of business license taxes against freelance authors is over, John’s case against the county is still active. However, with today’s decision, it is only a matter of time before the county’s tax is declared unconstitutional as well. 

 

 

Massachusetts Exempts Hair Braiders from Occupational Licensing

Massachusetts became the to eliminate licensing for natural hair braiders, thanks to a bonding bill signed late Thursday by Gov. Charlie Baker. With a rich heritage spanning millennia, natural hair braiding is a beauty practice common in many African American and African immigrant communities. Unlike cosmetologists, braiders do not cut hair or use any harsh chemicals or dyes in their work.

Yet Massachusetts was one of just seven states nationwide (and the only state in New England) that forced natural hair braiders to become licensed cosmetologists or hairstylists before they could work legally. In Massachusetts, a hairdresser license takes at least 1,000 hours of classes–an enormous burden, especially since many hairdressing schools don’t teach African-style braiding techniques. But now with the governor’s signature, braiding hair is finally exempt from the Bay State’s hairdressing regulations.

“The government has no business licensing something as safe and common as braiding hair. This is a great win for entrepreneurship, economic liberty, and just plain common sense,” said IJ Legislative Counsel Jessica Gandy, who lobbied on behalf of the braiders.  “Thanks to the advocacy of Sens. Nick Collins, Eric Lesser, and Ryan Fattman braiders across Massachusetts are no longer tangled in unnecessary red tape.”

Since its founding, the Institute for Justice has filed over a dozen lawsuits on behalf of natural hair braiders and is currently challenging a specialty braiding licensing in Louisiana. The Institute for Justice has also published a study, Barriers to Braiding: How Job-Killing Licensing Laws Tangle Natural Hair Care in Needless Red Tape, which found that braiders received very few complaints and that strict licensing laws stifle economic opportunity. A separate IJ study found that Massachusetts had the “10th most burdensome licensing laws” in the country, with the average license requiring 513 days of coursework and experience.

“I am thankful to the Institute for Justice and our legislators for recognizing the importance of this issue. We are now able to hire more braiders and continue to support our families and our communities,” said Coumba Diagana, who owns a braiding shop in Boston and organized in favor of the bill.

DC Day Care Providers Announce Plans to Appeal College Degree Requirement to DC Circuit Court

Late Wednesday, the United States District Court for the District of Columbia dismissed a lawsuit filed by two day care providers and a D.C. parent alongside the Institute for Justice (IJ) challenging a requirement by Washington, D.C. regulators in the Office of the State Superintendent of Education (OSSE) that day care providers obtain a college degree or look for another job.

When OSSE enacted the regulations in 2016, it did not cite any specific research to support its college requirement, but an OSSE official said the regulations were inspired by a 2015 report by the National Academies. That report actually stated that there is no empirical support for requiring day care providers to get college degrees and that there are many negative consequences in doing so. For example, the requirement threatens to put many lower-income women, often immigrants, out of work unless they upend their lives to obtain a college degree that adds nothing to their ability to care for children.

The district court opinion did not say that the degree requirement makes sense. Instead, the court concluded only that the plaintiffs failed to “establish that there is not ‘any reasonable conceivable state of facts that could’” support the degree requirement, further noting that the court “offers no evaluation of the real burdens it imposes on workers that may lose their jobs or on parents who are likely to pay more for childcare as a result.” But requiring college training when it’s been shown not to provide the skills those workers need (and in facts harms them) establishes the lack of any justification for the degree requirement.

“These regulations only serve to drive up the cost of child care in the District, when it’s already the most expensive in the country,” said IJ Attorney Renée Flaherty. “The degree requirement is not just a bad idea. The District’s arbitrary and irrational requirement violates day care providers’ right to earn an honest living guaranteed by the 5th Amendment to the U.S. Constitution. We will be appealing the district court’s decision to the U.S. Court of Appeals for the D.C. Circuit.”

Landmark D.C. Law Removes Occupational Licensing Barriers for Ex-Offenders

Washington, D.C. Mayor Muriel Bowser signed a bill that will make it much easier for people with criminal records to become licensed in their chosen field. Previously, the District had below-average protections for ex-offenders seeking licenses to work, receiving a C- in a recent report by the Institute for Justice, Barred from Working. But thanks to the bill signed this week, that grade will soar to an A-, with the District’s laws the best in the nation, second only to Indiana.

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Activism Policy Manager Chad Reese, who submitted testimony in favor of the bill. “This bill will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Americans looking for a fresh start.”

After adopting many of the suggestions IJ offered in its testimony, the Removing Barriers to Occupational Licensing for Returning Citizens Amendment Act will:

  • Block boards from denying licenses based on criminal convictions, unless there is “clear and convincing evidence” that the offenses are “directly related” to the license sought. This uniform standard will replace a byzantine patchwork of rules that varied dramatically based on the type of the license sought;
  • Prevent boards from using arrests that didn’t result in a conviction as well as sealed, expunged, or vacated records;
  • Repeal vague and arbitrary “good character” requirements found in multiple licenses (including for accountants, dental hygienists, and interior designers);
  • Enact new reporting requirements to track the number of applicants and licenses issued and denied to people with criminal records.

The bill will also create a petition process so that ex-offenders can see if their criminal record would be disqualifying, before they invest in any potentially expensive or time-consuming training or coursework. By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility and prisoner reentry. For instance, according to a separate report by the Institute for Justice, the average license for lower- and middle-income occupations in the District requires paying $400 in fees, finishing 261 days of training and experience, and passing one exam.

Washington, D.C. now joins a growing, nationwide movement. Since 2015, 34 states have removed licensing barriers for ex-offenders. This year alone, governors in Michigan and Ohio have already signed critical collateral-consequences reforms.

Ohio Governor Signs New Law That Lets Ex-Offenders Obtain Licenses to Work

Gov. Mike DeWine signed legislation Saturday (HB 263) that will make it much easier for Ohioans with criminal records to become licensed in their chosen field. Previously, the Buckeye State had scant protections for ex-offenders seeking licenses to work, receiving a D- in a recent report by the Institute for Justice, Barred from Working. Now that grade will soar to an A-.

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Legislative Analyst and Barred from Working author Nick Sibilla, who submitted testimony in favor of the bill. “This bill will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Americans looking for a fresh start.”

Apart from a small number of health care facility credentials, HB 263 will apply to more than 300 different licenses across 37 different agencies, boards, commissions, and departments.  Among its many reforms, the new law will:

  • Block boards from denying licenses based on criminal convictions, unless the board can prove that the offenses are “directly related” to the license sought;
  • Prevent boards from using criminal charges that didn’t result in a conviction as well as convictions older than five years, unless the latter involves sexual, violent, or fiduciary crimes;
  • Ban boards from using vague and arbitrary standards like “moral turpitude” or lack of “good character” to disqualify applicants; and
  • Enact new reporting requirements to track the number of applicants and licenses issued and denied to people with criminal records.

HB 263 builds off of previous reforms. In 2019, Ohio created a petition process that lets ex-offenders know if their criminal record would be disqualifying, before they invest in any potentially expensive or time-consuming training or coursework. This reform has now been adopted by 16 other states and was recently endorsed by the Trump Administration.

By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility. Those burdens add up to: According to the Institute for Justice, occupational licensing restrictions cost the state more than $6 billion each year, resulting in nearly 68,000 fewer jobs.

Supreme Court Declines to Review Navigable Waters Case

Arlington, Virginia—Today, the U.S. Supreme Court denied review in the decade-long lawsuit brought by brothers/entrepreneurs Jim and Cliff Courtney, who sought to provide boat service on Lake Chelan in Washington state.  The denial lets stand a 2020 decision of the 9th U.S. Circuit Court of Appeals dismissing the Courtneys’ lawsuit.

Since 1997, the Courtneys have tried to provide transportation—even just for customers of their family’s own businesses—along the 55-mile-long lake, a federally designated navigable water of the United States.  After years of being consistently thwarted by an anticompetitive state licensing law known as a “public convenience and necessity” (“PCN”) requirement, they teamed up with the Institute for Justice (“IJ”) to challenge the law.

The lawsuit alleged that the PCN requirement abridged the Courtneys’ “right to use the navigable waters of the United States,” which the U.S. Supreme Court, in the notorious Slaughter-House Cases of 1873, expressly recognized as protected by the Privileges or Immunities Clause of the Fourteenth Amendment.  In an opinion that otherwise largely gutted the clause, the Court in Slaughter-House recognized a handful of rights of national citizenship that the clause does, in fact protect, and among them was the right to use the navigable waters of the United States.

Slaughter-House was a terrible opinion, but it was correct in recognizing that inherent in the citizenship of every American is the right to use the nation’s navigable waters,” said Michael Bindas, IJ Senior Attorney and lead counsel for the Courtneys.  “Unfortunately, the Supreme Court refused to enforce that right today.  Nevertheless, the Institute for Justice remains steadfastly committed to revitalizing the Privileges or Immunities Clause—to restoring it to its rightful place as the cornerstone of the Fourteenth Amendment and the primary constitutional bulwark of economic liberty.”

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.  More information on the case is available at:  https://ij.org/case/lake-chelan-ferries/.]

Michigan Reforms Licensing Laws to Help People with Criminal Records Find Work

Michigan Gov. Gretchen Whitmer signed a package of bills Monday that will make it much easier for people with criminal records to become licensed in their chosen field. By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility and prisoner reentry. For instance, the average license for lower- and middle-income occupations in Michigan requires paying $242 in fees, finishing 255 days of training and experience, and passing two exams.

The bill package (HB 4488-4492) targets Michigan’s requirement that applicants must have “good moral character” in order to obtain occupational licenses–an often vague and arbitrary standard. Under the reform, licensing boards will only be able to disqualify applicants for lacking good moral character if they have been convicted of a felony that has a “direct and specific relationship” to the license sought or poses a “demonstrable risk to public safety.” Boards will also be required to consider an applicant’s evidence of rehabilitation, their employment history, any testimonials on their behalf, as well as the time elapsed since the crime was committed.

Previously, Michigan had mediocre protections for ex-offenders seeking licenses to work, receiving a C in a recent report by the Institute for Justice, Barred from Working. But thanks to the newly signed bills, that grade will rise to a B-, placing Michigan’s laws among the top 10 in the nation. (Neighboring Indiana ranks as the best overall, earning the report’s only A grade.) With this reform, Michigan joins 33 other states that have eased licensing barriers for ex-offenders since 2015.

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Legislative Analyst Nick Sibilla, who authored the report. “These bills will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Michiganders looking for a fresh start.”

Texas Doctor to Appeal Ruling Upholding Protectionist Ban on Doctor Dispensing

Austin, Texas—Yesterday, the Travis County District Court upheld Texas’s ban on doctor dispensing. Forty-four states and the District of Columbia allow doctors to dispense medicine to patients in their offices and to recover their costs. But in Texas, doctors could lose their licenses for doing so. The court’s ruling leaves that ban in place. The Institute for Justice (IJ) will appeal the decision.

The lawsuit was filed in 2019 by Dr. Michael Garrett, a family physician in Austin who wants to dispense basic drugs like antibiotics and allergy medicine. He is not interested in dispensing controlled substances or dispensing for profit. Rather, he simply wants to offer patients more convenient access to routine medications.

“This decision is disappointing for doctors and patients throughout Texas,” said Dr. Garrett. “As a licensed physician, I’m more than qualified to dispense patients the medicine I prescribe. This law just makes it harder for me to do my job, which can’t be constitutional. I’m ready for the next step in this fight.”

Texas’s ban isn’t about protecting patients. Indeed, the vast majority of states, the American Medical Association and the Texas Medical Association embrace the practice of doctor dispensing, and research confirms that doctors and pharmacies are equally safe when dispensing. Instead, the law simply protects pharmacies from competition.

Because the Texas Constitution requires that laws like the dispensing ban must meaningfully benefit the public, rather than favored market groups, Dr. Garrett’s lawsuit seeks to have the ban declared unconstitutional. With help from IJ, Dr. Garrett will appeal the decision.

“Government power should be used to benefit the public. A law that prevents doctors from helping their patients just to protect pharmacies’ bottom lines violates that basic principle,” said IJ Attorney Josh Windham, lead counsel on the case. “We expect the court to recognize that on appeal.”

Minnesota Supreme Court Eases CLE Rules

The Minnesota Supreme Court on Tuesday granted a petition that will ease regulatory burdens on lawyers. Every three years, attorneys in Minnesota need to finish 45 credit hours of continuing legal education (CLE) courses to maintain their licenses. Even though on-demand CLEs are more convenient, relevant, affordable and numerous than in-person CLEs and live-webcast CLEs, the justices capped on-demand CLE courses at 15 hours.

Although the petition was first filed by the Institute for Justice and lawyers from four other firms in August 2019, as the Minnesota Supreme Court noted, “access to legal programming and legal services has changed substantially,” with the cap suspended amidst the Covid-19 pandemic. Under Tuesday’s order, the CLE cap will be doubled to 30 credit hours starting with lawyers (CLE Cycle 1) whose reporting period starts on July 1, 2021, and will be fully scrapped with those same lawyers starting on July 1, in 2024.

Recognizing the technological advancements, the court saw “no reason to expect a decline in the state of Minnesota CLE’s system simply because 100 percent of credit hours can be secured in one format–on demand programming-rather than another format, i.e., live programming.”

“The court’s decision eventually will allow all Minnesota attorneys, particularly those working in out-state Minnesota, more flexibility in how they earn CLE credits,” said Institute for Justice Attorney Jaimie Cavanaugh, who argued for the petition last January. “Over the last nine months, most of the legal profession has been forced to meet the demands on their clients by working remotely. It’s fitting that attorneys finally will be allowed to meet all their CLE credits online and on-demand too.”

Final Victory for Pleasant Ridge Residents

CHARLESTOWN, Ind.—Christmas came early this year for residents of the Pleasant Ridge neighborhood in Charlestown, Indiana, after Judge Jason Mount signed an order barring the city from using its property maintenance code to force people out of their homes. The order formalizes a settlement agreement between the city and neighborhood and—after nearly four years—brings the neighborhood’s lawsuit against the city to a close.

As part of the settlement and order, the city has agreed to three things: First, it will give homeowners a reasonable opportunity to fix their homes before the city levies any fines. Second, it will not target the Pleasant Ridge neighborhood with code enforcement more than any other neighborhood in Charlestown. Last, it will not penalize anyone if they demand a warrant before the city performs an inspection of rental property. The order comes after Charlestown’s previous mayor Bob Hall, who lost his 2019 reelection bid, led an effort that imposed millions of dollars in daily accruing fines to force Pleasant Ridge property owners to sell to a private developer for just $10,000 per home.

“Four years ago, when things seemed darkest for the homeowners, IJ client Ellen Keith vowed that when the fight was over, she and her husband David would still be in their home and she was right,” said Institute for Justice Senior Attorney Anthony Sanders. “With this settlement and order, the city has agreed to never again use its power to levy fines to force residents out of their homes.”

The saga in Charlestown started in 2014 when then-Mayor Bob Hall decided that the working-class neighborhood of Pleasant Ridge had to go. That initial plan was thwarted when the city council refused to go along. After a November 2015 election, which Bob Hall won along with a slate of pro-redevelopment council members, the plan to eradicate Pleasant Ridge commenced. Under his direction, the Charlestown Redevelopment Commission came up with a scheme to replace the affordable houses of Pleasant Ridge with a planned “village-style” neighborhood, consisting of upscale housing and retail. The plans intended to replace all of the WWII-era Pleasant Ridge homes—whether owner-occupied or rentals—with new homes that the current residents couldn’t hope to afford. Working behind the scenes with a private developer, the city weaponized its property code and targeted owners for immediate, daily fines for rental properties.

The city initially focused on landlords and their rental units, including fines for minor or trivial property code violations—like a torn screen, chipped paint or a downed tree limb. The citations stated that the owner owed $50 per violation, per day, and multiple citations were issued per property, which meant that a single home accumulated hundreds of dollars in fines per day. Within weeks, Pleasant Ridge property owners had racked up millions of dollars in fines. Then the city made an offer that many property owners, faced with crippling fines, could not afford to refuse. If the owners agreed to sell their homes to the private developer for $10,000, the city would waive the fines.

The plan was as diabolical as it was unconstitutional. And it wasn’t limited to landlords. Various city planning documents, internal correspondence, text messages and a city council resolution made clear that homeowners were targeted as well. There were also internal discussions about using eminent domain to force homeowners out. The city and its developer envisioned an entirely new neighborhood with new and wealthier residents.

Pleasant Ridge residents partnered with the Institute for Justice and sued in January 2017. In December 2018, after a hearing in which former Mayor Hall testified that he would not promise to let homeowners keep their homes, Judge Mount issued a preliminary injunction against the city. The city appealed and lost. Those victories for the homeowners prevented the city from issuing any new fines, but didn’t completely derail the mayor’s plan. By then, hundreds of homes had been sold to the developer and, after months of sitting vacant, they were eventually razed. Finally, in 2019 the mayor lost reelection to Treva Hodges—who had campaigned on saving Pleasant Ridge—and settlement discussions began.

“No one should have to go through what we’ve gone through,” said Pleasant Ridge resident Tina Barnes, who was a plaintiff in the case. “What the city did to our neighborhood wasn’t just immoral, it was unconstitutional. Thankfully, with the help of IJ, we were able to stop the city’s illegal land grab. Now, with that in our past, it is time to focus on the future and rebuild our community.”

Supreme Court Appeal & Amicus Briefs Make Case for the Right of All Americans To Use the Nation’s Navigable Waters
  • Courtney brothers have tried for 23 years to transport passengers to their family’s businesses, only to be blocked by government every step of the way.
  • Infamous Slaughter-House Cases stripped Americans of most economic liberties, but explicitly protected right to use waters. If precedent means anything, the Courtney brothers should win.

Arlington, Virginia—Imagine Jim and Cliff Courtney’s frustration in spending 23 years trying to travel 55 miles by boat, but never reaching their destination.

The brothers from Washington State petitioned the U.S. Supreme Court in September to hear their challenge to a state law that has barred them from pursuing a livelihood on Washington’s 55-mile-long Lake Chelan.  On Friday, they filed their final brief with the Court before the justices are scheduled to hold a January 8, 2021 conference to decide whether to take up the appeal. Earlier this term, the Courtneys received significant support, as some of the nation’s leading historians and legal scholars, as well as a national nonprofit committed to the ideas, principles and policies of a free and open society, submitted amicus curiae (or “friend of the court”) briefs urging the Court to review the case.

Since 1997, the Courtneys have been fighting for their right to use Lake Chelan—a federally designated navigable water of the United States—in pursuit of a living. That right can be traced all the way back to Magna Carta and is protected by the Privileges or Immunities Clause of the U.S. Constitution’s 14th Amendment. In the landmark Slaughter-House Cases—decided in 1873, just five years after the 14th Amendment was ratified—the U.S. Supreme Court held that the “right to use the navigable waters of the United States” is one of the “privileges or immunities,” or rights, of national citizenship that no state may abridge. For the last 23 years, however, the state of Washington has used a century-old licensing of public ferries to prevent the Courtneys from even shuttling customers of their family’s own businesses at the far end of the lake.

The Courtneys challenged Washington’s law, but in April of this year, following nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. According to the 9th Circuit, the right to use the navigable waters of the United States is essentially meaningless. The court severely curtailed the scope of the right, holding that it protects only uses that “involve interstate or foreign commerce”—not “intrastate boat transportation” like that which the Courtneys wish to provide. The right, in other words, is a mere redundancy of the right to engage in interstate or foreign commerce.

And the 9th Circuit did not stop there. Not content with gutting this one particular right protected by the Privileges or Immunities Clause, it effectively gutted the clause itself. To support its holding that “intrastate” uses of the navigable waters are not protected, the court held that the clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.”

“The Courtneys’ petition raises fundamental questions regarding the constitutional provision that was supposed to be the cornerstone of the 14th Amendment, and it concerns a right that the U.S. Supreme Court has held every American possesses by virtue of their national citizenship,” said Michael Bindas, IJ senior attorney and counsel for the Courtneys.  “The 9th Circuit’s decision, if allowed to stand, will reduce that right to meaninglessness, and the Supreme Court should not let that happen.”

In three briefs, a group of historians, a coalition of law professors, and Americans for Prosperity Foundation highlighted the errors of the 9th Circuit’s decision and urged the Supreme Court to review it.

  • A group of eminent historians whose research and scholarly interests focus on African-American history, particularly in the antebellum South, submitted a brief providing historical context to inform the original understanding of what it meant to “use” the “navigable waters of the United States” around the time of the Fourteenth Amendment’s ratification. The historians—Jeffrey Bolster (University of New Hampshire, emeritus), Melvin Patrick Ely (College of William & Mary), and Michael Schoeppner (University of Maine, Farmington)—document the importance of the navigable waters to free blacks and slaves in the period leading up to the Civil War, as well as the widespread efforts by southern governments to restrict their use of those waters in both interstate and intrastate pursuits. The historical evidence, the brief notes, “undercuts the Ninth Circuit’s holding that the Privileges or Immunities Clause protects only against infringements on interstate uses of the navigable waters.”
  • A group of distinguished law professors—Richard Aynes (University of Akron School of Law, emeritus), James Ely (Vanderbilt University Law School, emeritus), Richard Epstein (New York University School of Law), Christopher Green (University of Mississippi School of Law), Michael Lawrence (Michigan State University College of Law), and Rebecca Zietlow (University of Toledo College of Law)—submitted a brief making clear that when the Privileges or Immunities Clause declares that “No State . . . shall abridge the privileges or immunities of citizens of the United States,” it actually means “No State,” including one’s own. The 9th Circuit’s contrary conclusion—which, the brief demonstrates, flies in the face of U.S. Supreme Court precedent, history, and the unanimous consensus of legal scholars—“has cudgeled the Privileges or Immunities Clause of the Fourteenth Amendment to within an inch of its life.”
  • Americans for Prosperity Foundation submitted a brief tracing the historical origins of the right to use the navigable waters, examining the basis for its protection as a right of national, rather than state, citizenship, and dispelling the 9th Circuit’s view that the Commerce Clause constrains the scope of the right. The brief urges the Supreme Court to review the lower court’s decision in order to “protect the right of the people to use the nations’ navigable waterways and unwind the conflation of limits on congressional power and protection of individual rights wrought by the Ninth Circuit.”

“The Slaughter-House Cases set a horrible precedent, but one thing it got right was that the Privileges or Immunities Clause protects every American’s right to use the navigable waters of the United States. Yet, now, the 9th Circuit has taken that away, too,” said Scott Bullock, president and general counsel for the Institute for Justice. “We urge the Court to take up the Courtneys’ case and restore this important right to all Americans.”

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.  More information on the case is available at:  https://ij.org/case/lake-chelan-ferries/.]

Federal Court Finds Doraville’s Addiction to Fines & Fees Constitutional

ATLANTA, Ga.—Yesterday a federal judge ruled against four Georgia residents who had sued the city of Doraville over its practice of heavily relying on fines and fees to balance its budget. The city fined them—two homeowners and two drivers—over extremely minor violations, including a cracked driveway and improperly stacked wood, as part of its policy of using fines and fees to make up anywhere between 34% and 17% of its budget. While ruling for the city, the judge nevertheless found the high percentage concerning, and noted that Doraville was included in a recent report by the U.S. Commission on Civil Rights as the sixth worst city nationwide in reliance on fines and fees—higher even than Ferguson, Missouri.

The plaintiffs, represented by the Institute for Justice (IJ), argued that the city’s reliance on speeding tickets, minor code enforcement violations and unnecessary fees tacked onto court sentences, violated their due process rights. This was because, as they argued, the tickets were issued not to protect public health and safety, but to raise revenue. However, federal District Judge Richard Story ruled for Doraville because of what seemed to be a lack of pressure on the city’s municipal judge, and its prosecutor and police, from the city council.

“The role of the police and municipal courts should be to serve and protect, not ticket to collect,” said IJ Attorney Joshua House. “There is substantial evidence of a connection between the council’s desire to raise revenue and pressure on the city’s municipal court, prosecutor and police to issue fines and fees. We look forward to making our case to the U.S. Court of Appeals.”

One of the plaintiffs, Hilda Brucker, was fined by Doraville for a cracked driveway. For that extremely minor infraction she was given a misdemeanor conviction and a sentence of six months probation.

“I’m disappointed in today’s ruling but looking forward to continuing the fight on appeal,” said Hilda. “It was a hopeful sign that the judge called out, in his written decision, how an over-reliance on fines and fees distorts the justice system and creates faulty incentives. I’m ready for the next step, and I’m glad to have the Institute for Justice in my corner.”

The Institute for Justice recently issued a report on the nationwide problem of fines and fees. The report highlighted the abuses in Doraville, and rated Georgia as the worst state in the country on the issue, considering its heavy reliance on municipal courts, lack of procedural protections and free hand given to cities to pad their budgets through fining ordinary people for minor offenses.

D.C. City Council Passes Sweeping Licensing Reform to Help People with Criminal Records Find Work

The Council of the District of Columbia unanimously passed a bill Tuesday that will make it much easier for people with criminal records to become licensed in their chosen field. Previously, the District had below-average protections for ex-offenders seeking licenses to work, receiving a C- in a recent report by the Institute for Justice, Barred from Working. But thanks to the bill passed this week, that grade will soar to an A-, with the District’s laws the best in the nation, second only to Indiana. 

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Activism Policy Manager Chad Reese, who submitted testimony in favor of the bill. “This bill will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Americans looking for a fresh start.”

After adopting many of the suggestions IJ offered in its testimony, the Removing Barriers to Occupational Licensing for Returning Citizens Amendment Act will: 

  • Block boards from denying licenses based on criminal convictions, unless they are “directly related” to the license sought; 
  • Prevent boards from using arrests that didn’t result in a conviction as well as sealed, expunged, or vacated records;  
  • Repeal vague and arbitrary “good moral character” requirements found in multiple licenses (including for accountants, dental hygienists, and interior designers); 
  • Enact new reporting requirements to track the number of applicants and licenses issued and denied to people with criminal records. 

The bill will also create a petition process so that ex-offenders can see if their criminal record would be disqualifying, before they invest in any potentially expensive or time-consuming training or coursework. By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility and prisoner reentry. For instance, according to a report by the Institute for Justice, the average license for lower- and middle-income occupations in the District requires paying $400 in fees, finishing 261 days of training and experience, and passing one exam. 

Since 2015, 33 states have eased licensing barriers for ex-offenders.

Innovative Mississippi Analytics Firm Free to Expand Its Business

Arlington, Va.— Today, the real estate analytics firm Vizaline is free to legally operate in Mississippi following the approval of a consent agreement by a Mississippi state court. Vizaline is a technology start-up located in Mississippi that uses public data to draw lines on satellite photos showing property boundaries. This information is used by banks to better understand their property portfolios. Less uncertainty means safer loans, safer banks and safer customers. In 2017, the Mississippi Board of Licensure for Professional Engineers and Surveyors sued Vizaline for “unlicensed surveying.” In response, Vizaline sued the Board for violating its First Amendment rights, because using existing information to create new information is protected speech. The consent agreement was reached following a ruling from the 5th U.S. Circuit Court of Appeals saying that occupational licensing regimes are not exempt from First Amendment protections. Because the consent agreement recognizes that the services Vizaline is providing are legal, Vizaline has agreed to drop its First Amendment lawsuit.

“I am pleased that the lawsuit is over and that we can get back to providing our services to our Mississippi clients without threats from the Board,” said Vizaline’s CEO and co-founder Brent Melton. “The information that we provide has proven very useful to banks and their customers, and now we can continue to grow our business here and regionally.”

The consent agreement recognizes that what Vizaline does—use public data to draw property descriptions on satellite photos—is not the practice of surveying and does not require a surveyor license. Vizaline’s technology is similar to services featured in Google Maps and Zillow.

“Using public data to draw lines on satellite photos is not surveying, it’s free speech,” said IJ Senior Attorney Paul Avelar. “You don’t need the government’s permission to use information to create new information and sell it to willing customers. The consent agreement means that Vizaline can continue to do what it has always done, free from threats from the Board.”

In February 2020, the 5th Circuit unanimously ruled in the case that “Mississippi’s surveyor requirements are not wholly exempt from First Amendment scrutiny simply because they are part of an occupational-licensing regime.” That decision turned on a major 2018 ruling by the U.S. Supreme Court in NIFLA v. Becerra, which ruled that “professional speech”—speech subject to licensing requirements—is not exempt from the protection of the First Amendment. The 5th Circuit confirmed that the NIFLA decision overruled prior 5th Circuit case law instituting a problematic “professional speech doctrine,” which exempted professional speech from First Amendment protection. The 5th Circuit’s decision in Vizaline has since been used to protect the free speech rights of a Texas veterinarian, Dr. Ronald Hines, in his lawsuit against the Texas State Board of Veterinary Medical Examiners.

The agreement has three key components:

  • The Board acknowledges that Vizaline has not held itself out as surveyor service.
  • The Board recognizes that Vizaline’s reports are not authoritative surveys.
  • The Board agrees that using descriptions from property deeds to draw lines on a satellite images representing property boundaries is not surveying as defined by law.

“Mississippi’s occupational licensing laws—especially in the hands of self-interested regulatory boards—threaten technological innovation and the rights to free speech and to earn an honest living,” said Melton.

“Too often, established industries try to use government power to squash competition,” said IJ Attorney Kirby Thomas West. “Mississippi, and other states, should resist these efforts and instead encourage innovative business ventures.”

New Report Finds Civil Forfeiture Rakes in Billions Each Year, Does Not Fight Crime

ARLINGTON, Va.Nationwide, civil forfeiture laws put innocent property owners at risk and encourage law enforcement to police for profit, with billions of dollars forfeited each year. So finds the latest edition of Policing for Profit: The Abuse of Civil Asset Forfeiture, released today by the Institute for Justice (IJ) 

This third edition of Policing for Profit presents the largest ever collection of state and federal forfeiture data17 million data points covering 45 states, the District of Columbia and the federal governmentThese data show forfeiture is a massive nationwide problemSince 2000, states and the federal government have forfeited at least $68.8 billion—that we know of. Not all states provided full data, so this figure drastically undercounts property taken from people through forfeiture. 

“The heart of the problem remains poor state and federal civil forfeiture laws, which are little improved since the previous edition of Policing for Profit was published in 2015,” said IJ Senior Director of Strategic Research and report co-author Lisa Knepper. “Most laws still stack the deck against property owners and give law enforcement perverse financial incentives to pursue property over justice.”  

Policing for Profit grades state and federal civil forfeiture laws based on the portion of proceeds directed to law enforcement coffers and the protections offered property owners. Thirty-five states and the federal government earn a D+ or worse. New Mexico earns the report’s only A, thanks to a 2015 reform that eliminated civil forfeiture and directed all forfeiture proceeds to the state’s general fund.  

Importantly, New Mexico’s reform has not compromised public safety, according to a new analysis published in the reportCompared to neighboring Texas and Colorado, New Mexico’s crime rates remained steady in the months and years following the reform, suggesting forfeiture does not deter crime and law enforcement are able to do their jobs without forfeiture proceeds. 

Indeed, new data published for the first time in Policing for Profit indicate forfeiture rarely targets big-time criminalsData from 21 states show half of all currency forfeitures are worth less than $1,300, hardly the stuff of vast criminal enterprises and far less than it would cost to hire an attorney to fight back. Moreover, Policing for Profit finds forfeiture proceeds mostly support law enforcement budgets, not crime victims or community programs. In 2018, agencies in 13 states with expenditure data spent almost no proceeds on victims and just 9% on community programs on average. 

“Despite its national prevalence and popularity with police and prosecutors, civil forfeiture simply doesn’t work,” said IJ Senior Research Analyst and report co-author Jennifer McDonald. “It doesn’t fight crime, it doesn’t target criminal kingpins, and it doesn’t support crime victims or community programs.” 

Policing for Profit also highlights a loophole that undercuts protections for property owners in states with better forfeiture laws: the federal equitable sharing program. Equitable sharing allows state and local law enforcement to seize property locally and turn it over to federal prosecutors for forfeiture under federal law—and get back up to 80% of the proceeds, regardless of state law.  

Not only does equitable sharing give state and local law enforcement agencies a leg up over property owners—the resources of the federal government and its convoluted forfeiture procedures—but it also enables agencies to get around state laws that make forfeiture more difficult or less profitable for them.  

This arrangement is very rewarding for law enforcement. Every year, the program pays out hundreds of millions of dollars to state and local law enforcement agencies—more than $8.8 billion from 2000 to 2019. Perhaps unsurprisingly, 70% of Americans oppose the loophole equitable sharing creates. 

No one should ever lose their property without first being convicted of a crime, but lawmakers should be especially concerned about forfeiture abuse now, as local governments face increased fiscal pressure amid the COVID-19 pandemic,” said KnepperResearch finds law enforcement agencies engage in more forfeiture when budgets are tight, suggesting the practice is even more ripe for abuse in the current economic climate 

Policing for Profit recommends that Congress and state legislatures protect all Americans’ property and due process rights by abolishing civil forfeiture and eliminating the perverse financial incentive it creates to police for profit. The report also recommends that Congress abolish equitable sharing and, until it does, that states prohibit their agencies from participating. 

New Mexico’s experience shows that strong forfeiture reform does not sacrifice public safety,” McDonald said. As states and Congress look for ways to create a fairer criminal justice system, one reform everyone should be able to agree on is ending civil forfeiture and the perverse profit incentive that fuels it. 

Institute for Justice Asks Supreme Court to Reject Dangerous “Misdemeanor Pursuit” Doctrine and Secure Our Constitutional Rights

Arlington, Virginia—In America, our homes are supposed to be our castles. But that security is in doubt. In California v. Lange, the U.S. Supreme Court will decide if the Fourth Amendment allows police to enter people’s homes without a warrant whenever an officer is pursuing anyone they think has committed any jailable misdemeanor. The Institute for Justice (IJ) submitted a friend-of-the-court brief asking the Court to reject that approach as contrary to the fundamental constitutional command that Americans should be safe and secure in their persons and property.

The Fourth Amendment forbids government from conducting “unreasonable” searches and seizures. But how is a court to decide what is or is not “reasonable”? Here, the California Court of Appeals held that police could enter Arthur Lange’s home late at night without a warrant just because the officer believed Lange had been honking his horn and playing music too loudly while driving. In that court’s view, it is always reasonable for officers who are pursuing someone for a jailable offense to enter that person’s home—no matter how harmless the offense or how much time they have to get a warrant.

That cannot be right.

The Fourth Amendment starts by declaring “the right of the people to be secure,” and history makes clear that the Amendment was designed to protect us from threats to our persons and property. It is this right—the right to be secure from government officers’ unchecked power to search and seize—that should serve as the Court’s compass when evaluating the reasonableness of police conduct. In the past, the Court has allowed police to enter homes without a warrant (or consent) only when the facts show a dangerous situation requiring immediate action. The Court should do the same here and reject the lower court’s fact-free approach that would weaken all Americans’ right to be secure in their homes.

In October, the Court agreed to hear the case.

“The Fourth Amendment protects our right to be secure in our property, which means both safe and free from fear that the police will enter without warning or authorization,” said Joshua Windham, IJ attorney and lead author of IJ’s brief in Lange. “A rule that allows police to burst into your home whenever they think they saw you commit a harmless offense turns that right on its head. We call on the Court to correct the lower court’s error and clarify that only true emergencies rooted in actual facts can justify warrantless home entries.”

“The Founders wrote the Fourth Amendment to make us secure in our persons and property,” explained IJ Senior Attorney Robert Frommer, who heads up IJ’s Fourth Amendment work.  “But the lower court’s decision treats our security as little more than a speed bump for law enforcement.”

“The Supreme Court should reverse this terrible decision and instruct lower courts that their top priority is to secure peoples’ constitutional rights, not merely to rubberstamp whatever actions the government has taken in the name of convenience for law enforcement.” said Scott Bullock, president and general counsel for the Institute for Justice.

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.]

U.S. Supreme Court Rules Unanimously You May Sue Government Agents for Damages When They Violate Your Individual Rights

Arlington, Va.—In a unanimous opinion issued today by the U.S. Supreme Court, and authored by Associate Justice Clarence Thomas, the Court ruled in Tanzin v. Tanvir that individuals may seek damages as a remedy when federal officers violate their rights. The opinion closely tracks an amicus brief submitted by the Institute for Justice.

The case involved FBI agents who retaliated against Muslim-Americans and green-card holders who followed the dictates of their faith and refused to cooperate with the FBI by spying on their own communities. As a result of their refusal to cooperate, these individuals were placed on the No Fly List, which caused significant hardship, such as the inability to travel to visit family or for work. Luckily, Congress provided a statutory authorization to sue for violations of religious rights, allowing a plaintiff to receive “appropriate relief against the government.”

Not surprisingly, in the lawsuit against the FBI agents, the government argued that the words “appropriate relief” do not include damages. According to the government, damages might be an appropriate remedy against private actors, but damages should not be allowed if the person who violated your rights happens to work for the government.

The Institute for Justice filed an amicus brief arguing against this radical notion. IJ’s brief outlined how suits for damages against government officials are the historical cornerstone of government accountability, how damages are often the only way to vindicate constitutional rights, and how none of the government’s policy justifications against damages have a basis in reality. IJ further explained that matters of policy should be left to Congress, not courts.

In a unanimous opinion, the Supreme Court agreed.

According to the Court, “in the context of suits against Government officials, damages have long been awarded as appropriate relief.” And that has been true not only for state and local officials, but also federal officials, like those employed by the FBI. Moreover, the Court highlighted that damages are important because they are often the only remedy available. For example, for one of the plaintiffs, Muhammad Tanvir, who lost his job because of his placement on the No Fly List, it is damages or nothing. Finally, in response to the government’s argument that policy favors denying a damages remedy against government officials, Justice Thomas, just like Justice Story two centuries before him, emphasized that it is the job of Congress to engage in policy making: “[T]here are no constitutional reasons why we must do so in its stead.”

“The Court today has provided its full-throated endorsement of damages as a necessary and historic mechanism for constitutional accountability,” said Scott Bullock, IJ’s president and general counsel. “In doing so, the Court also reiterated its support for the foundational principles of this country, such as that damages can be awarded to check the government’s power and that it is Congress’ job to engage in policy making. The Court’s job is to interpret the law, not to do policy.”

IJ’s support for the individuals who sued the government in this case is part of its Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then the government must follow the Constitution. IJ’s recent U.S. Supreme Court case Brownback v. King is also a part of this Project. It similarly asks the Court to stay true to this nation’s original promise by allowing James King—an innocent college student who was brutally beaten by police—his day in court, to hold accountable the government workers who violated his constitutional rights and to seek damages for the harm they caused him.


Every Contribution Helps IJ Fight for Americans’ Rights

The Institute for Justice protects the constitutional rights of all Americans. IJ defends ordinary people who want to earn an honest living, own and enjoy their property, speak freely, and give their children a good education but find that the government is standing in their way—and we win 75% of our cases.

Victory for Food Freedom In North Dakota: Homemade Food Producers Restore Food Freedom to North Dakota

Today, North Dakota Judge Cynthia M. Feland ruled that the North Dakota Department of Health broke the law when it passed regulations in December 2019 crippling the Cottage Food Act starting in January 2020. The Cottage Food Act was passed by the North Dakota Legislature and signed into law by Gov. Doug Burgum in 2017 and allows North Dakotans to buy or sell nearly any homemade food or meal to informed consumers. But that changed when the Department of Health passed regulations banning the sale of all homemade meals, almost all perishable foods, cut produce and many types of canned foods. Now, thanks to a lawsuit brought by five North Dakota homemade food producers throughout the state along with the Institute for Justice (IJ), North Dakotans will be able to start selling these homemade foods again.

“This victory means that more North Dakotans will be able to support their families and their farms by selling homemade foods” said IJ Senior Attorney Erica Smith. “It also means that North Dakotans will have more options to buy fresh and local food. This is exactly what the Legislature intended when it passed the Cottage Food Law three years ago.”

The North Dakota Health Department opposed the Cottage Food Law, however, and repeatedly tried to convince the Legislature to limit its scope. When the Legislature refused, the Department passed rules severely restricting the law. “Although the Department claims that it has the general authority to enact rules governing food safety, the agency cannot adopt rules that contradict or conflict with an unambiguous act of the Legislature,” wrote Judge Feland in an order declaring that the Health Department’s restrictions to the Cottage Food Act are “invalid and enjoined from enforcement.”

The plaintiffs in the lawsuit are Danielle Mickelson, Lydia Gessele, Lonnie Thompson, Summer Joy Peterson and Naina Agarwal. They come from different parts of North Dakota and look forward to resume selling all different types of foods, all of which they were able to sell under the Cottage Food Act but which were made illegal by the Department.

“I’m excited for the future of my business and what these freedoms mean for its growth,” said Danielle Mickelson, a Rolla farmer and mother of six. “I am thrilled to be part of something that can help current and future cottage food producers in North Dakota.”

“North Dakotans benefit from a straightforward way to make money from home,” said IJ Attorney Tatiana Pino. “The restoration of the Cottage Food Act means hundreds of new jobs and a boost to the local economy. That should be a welcome holiday treat to all North Dakotans.”

It is unknown if the Department will appeal the decision. In the meantime, North Dakota now can rejoin the states of Wyoming and Utah as having the most expansive laws allowing the sale of homemade food in the country.

Mental Health Professional Sues D.C. for the Right to Teleconference with Clients

WASHINGTON—As the COVID-19 pandemic fell on the greater Washington, D.C., area, professional counselor Elizabeth Brokamp quickly shifted her practice online. Yet she ran into a problem: When potential clients living in the District of Columbia contacted her to begin counseling, she was forced to turn them away because she is licensed in Virginia, but not the District.

If not for the pandemic, clients in the District could easily drive to meet with Elizabeth in person in the Virginia suburbs. Elizabeth is licensed in Virginia, and it would be entirely legal for her to see District residents face-to-face. But when Elizabeth asked District regulators if she could see new clients via teletherapy, regulators told her she would be cited if she tried. Now, Elizabeth is teaming up with the Institute for Justice (IJ) to sue the District for her right to counsel new clients by teletherapy.

“Counselors use words—they talk to people about their emotions and help them feel better,” said IJ Senior Attorney Rob Johnson. “Literally all Elizabeth wants to do in D.C. is talk over the internet. And under the First Amendment, the government cannot prohibit unauthorized talking.”

The demand for teletherapy has greatly increased during the pandemic, with many Americans looking for a safe way to cope with stress related to sickness, lockdowns and economic hardship. And while Zoom and other video conferencing services have allowed many employees to continue working from home, a patchwork of regulations confronts professionals wishing to practice teletherapy and telemedicine.

Elizabeth Brokamp has worked as a professional counselor for over twenty years, and she holds a master’s degree in Counseling Psychology from Columbia University. She is currently working toward a doctorate and holds certifications in several counseling specialties, including teletherapy. A temporary waiver allows Elizabeth to see clients with whom she has an existing relationship, but that waiver is only temporary and does not allow Elizabeth to take on new clients in the District.

“It is painful for me to have to tell people in D.C. that I am not allowed to help them right now,” said Elizabeth. “People should be able to engage with the counselor who can best meet their needs wherever they live and continue seeing that counselor if they move across the country. I hope my case can start removing senseless boundaries to teletherapy.”

Elizabeth’s legal claim is simple: Counselors talk to people about how to deal with problems in their lives, and, under the First Amendment, the government cannot cite counselors for talking. The District’s licensing law requires a professional counseling license for anyone who speaks with another person to “achieve long-term effective mental, emotional, physical, spiritual, social, educational, or career development and adjustment.” That law is staggeringly broad; read literally, it would sweep up friends, family members, pastors, self-help gurus and life coaches.

In practice, only professionals like Elizabeth are subject to the restriction on their speech. If Elizabeth had no training, she could provide her services as an unlicensed “life coach.” It is precisely because of Elizabeth’s qualifications and experience—the very reasons clients want her help—that the District bars her from talking. The District cannot constitutionally prohibit all unlicensed counseling, as such a restriction would sweep too broadly, and it cannot constitutionally prohibit Elizabeth’s speech just because she is effective at her job.

“Elizabeth has spent countless hours training to help people, and there are people in D.C. who are asking her for help,” said IJ Constitutional Law Fellow John Wrench. “Teletherapy makes it possible for Elizabeth to provide that help even during a pandemic. Now the D.C. government needs to get out of the way.”

This case is part of IJ’s broader initiative to protect occupational speech. In 2010, IJ successfully challenged the District’s licensing requirement for tour guides as a violation of the First Amendment, and IJ successfully represented a psychologist who was prosecuted by Kentucky’s psychology licensing board for distributing a newspaper advice column in the state without a license. IJ is also currently challenging a Texas law forbidding licensed veterinarians from giving online advice, as well as Arizona’s attempt to prohibit a trained engineer from truthfully describing himself as an “engineer.”

South Padre Island Food Truck Laws Declared Unconstitutional

Brownsville, Tex.—In a sweeping victory for economic liberty, Judge Arturo Cisneros Nelson of the Cameron County District Court struck down South Padre Island’s anti-competitive food truck permit cap and restaurant-permission scheme. The district court ruled that the city violated the Texas Constitution when it forced food truck owners to get permission from local restaurant owners before being eligible for a food truck permit, and by making it illegal for more than twelve food trucks to open for business on the island.

The Institute for Justice (“IJ”) challenged both anti-competitive restrictions on behalf of food truck owner SurfVive, a local nonprofit spearheaded by Erica Lerma, and the Brownsville-based Chile de Árbol food truck operated by brothers Anubis and Adonai Avalos. Both food trucks were forced to the sidelines and could not operate under the city’s permitting scheme.

“This is a victory under the Texas Constitution for entrepreneurs across Texas,” said Arif Panju, Managing Attorney of IJ’s Texas Office. “The government cannot pass laws to protect politically connected insiders from competition— operating a small business in the current climate is challenging enough without the government picking winners and losers.”

Until 2016, the city of South Padre Island banned food trucks from opening for business on the island. When the city finally allowed food truck entrepreneurs in, evidence showed that local restaurant owners lobbied the city council to cap the number of available food truck permits—and also require applicants to first obtain a signature from their brick-and-mortar competitors to qualify for a permit. The district court rejected this economic protectionism as a violation of the Texas Constitution.

“SurfVive will finally be able to pursue our goal of providing healthy, sustainable food for our community,” said Erica Lerma. “This victory also means that other new entrepreneurs can pursue their dreams of opening businesses on South Padre Island without being restricted by laws that serve no purpose other than limiting competition.”

This case continues IJ’s National Street Vending Initiative, which protects vendors’ rights coast to coast. For example, IJ lawsuits in San Antonio, El Paso and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors.

Eagle Families Fight Back Against Out of Control Fines and Fees

WAUKESHA, Wis.—The Town of Eagle in Waukesha County, Wisconsin, looks like many other places in the Badger State, with its modest homes and small farms. But Eagle is not the idyllic town it appears to be. If residents get on the wrong side of the town board, they can find themselves with tens of thousands of dollars in fines and fees for residential code violations. The town’s attorney, a private law firm, has even asked a judge to threaten jailtime if residents cannot pay up.

Annalyse and Joseph Victor and Erica and Zach Mallory both saw their dreams of rural freedom come crashing down when code enforcers targeted their homes. But the Town of Eagle cannot use code enforcement to punish its critics and to enrich a private law firm. That is why the Mallorys and the Victors are teaming up with the Institute for Justice (IJ) to take the fight for their rights to Wisconsin’s state courts.

“Code enforcement in the Town of Eagle is out of control in so many ways,” said IJ Attorney Kirby West. “Codes exist to protect public safety, but in Eagle citations are handed out selectively and in amounts that are unconstitutionally excessive. Given that the power to assess violations has been farmed out to a private law firm—paid by the hour—it is sadly not surprising that enforcement seems to prioritize profit, not public safety.”

Eagle imposed $87,900 in fines and fee on Annalyse and Joseph Victor for a variety of violations related to a few trucks that were parked on their nearly 10 acres of rural property. Joseph is a semi-truck driver, and the couple bought the property in part because the previous owner parked his trucks there. After being notified of violations by a letter, they spent months trying to work it out with the town.

When the town’s attorney filed the fines in county court, the Victors never received notice of the hearing. At that hearing, the judge signed off on the fines and fees but struck out a provision sought by the town that would have threatened Annalyse with six months in jail if the couple could not immediately pay. It was only later that the Victors first found out how much the town was demanding from them and that the court had ruled for the town. They are now asking the judge to roll back that ruling so that they can contest their fines.

“The Town of Eagle is trying to ruin us with fines on top of fines for things we didn’t even know were wrong,” said Joseph Victor. “When we searched for a home, we looked for a rural property where we could park trucks without bothering our neighbors. Eagle didn’t turn out to be the place we thought it would be, but this fine makes it impossible for us to sell our home and leave.”

Erica and Zach Mallory thought they had found their little slice of heaven in Eagle. In 2016, they purchased nearly four acres of land where they raise chickens and lambs, grow fruits and vegetables, and maintain beehives. But Erica found out the town had a dark side when she started regularly attending council meetings. And after Erica spoke out in support of neighbors, her small Mallory Meadows Farm was inspected.

The town threw the book at them for minor violations like an unpermitted flower planter, tall grass and the location of a barn that was on the property when they purchased the land. They are now being threatened with more than $20,000 in fines and fees. When Erica asked one of the board members about the board’s decision to pursue the Mallorys for ordinance violations, she was told that she had “ticked off all the board members with [her] meeting comments and on [F]acebook,” and so “the board members voted with emotion.”

“Local codes have to be enforced fairly and without favoritism, not because town officials don’t like what you have to say at meetings,” said IJ Attorney Alexa Gervasi. “Targeting someone for their political speech is a grave violation of the First Amendment and equal protection. Governments cannot go out of their way to punish you because you have criticized them.”

IJ is representing the Victors and Mallorys in separate legal actions with the same goal: stopping fines and fees that were unconstitutionally assessed and that violate the Constitution’s limits on excessive fines. In a 2019 IJ case, Timbs v. Indiana, the U.S. Supreme Court established that states and cities are subject to the 8th Amendment’s limits on excessive fines.

“The Constitution requires that punishment cannot be so harsh that it doesn’t reflect the seriousness of the offense, but the Town of Eagle issues ruinous fines for minor infractions,” said IJ Attorney Marie Miller. “Taxation by citation may help cities pad their bottom line, but it’s residents who suffer from cities’ greedy, and often unconstitutional, practices.”

IJ has represented homeowners in Indio, California, whose code citations came along with expensive bills they owed to the private law firm that prosecuted them. In Doraville, Georgia, and Pagedale, Missouri, IJ clients were fined for petty violations like improperly stacked firewood or mismatched curtains. And in Dunedin, Florida, IJ is defending a homeowner threatened with foreclosure over fines for having long grass.

Victory for Free Speech: Texas Veterinarian Wins First Amendment Appeal about Giving Pet Advice Online

AUSTIN, Texas—Today, the 5th U.S. Circuit Court of Appeals recognized that restricting the online pet advice of Brownsville, Texas, veterinarian Dr. Ron Hines implicated his First Amendment rights, reversing a lower court ruling that occupational speech is not protected by the First Amendment. Dr. Hines now has the opportunity to go back down to the trial court and prove the First Amendment violation. Today’s decision has broad implications for other professionals who want to meet virtually with clients, especially in the midst of COVID-19.

Dr. Hines gave online advice to pet owners all across the world from 2002 to 2012, until the Texas State Board of Veterinary Medical Examiners said his advice was illegal—not because it harmed an animal or was inaccurate, but because Texas prohibits veterinarians from sharing their expertise with pet owners without first examining their pets in person. Dr. Hines teamed up with the Institute for Justice (IJ) in 2013 to challenge that restriction but the 5th U.S. Circuit Court of Appeals ruled in 2015 that his advice was regulated by occupational licensure and hence not protected by the First Amendment. After a landmark 2018 Supreme Court decision (NIFLA v. Becerra) rejected the so-called “professional speech doctrine,” which excluded occupational speech from the First Amendment, Dr. Hines again partnered with IJ in 2018 to vindicate his right to free speech. Today’s ruling enshrines constitutional protection to Americans who want to give advice online without being punished for it.

IJ Senior Attorney Jeff Rowes said: “Today’s decision is the latest in a unanimous string of federal appellate decisions ruling that the First Amendment protects the occupational speech of workers just as it protects other kinds of speech. Spurred by the pandemic, more and more people are serving their clients online and their ability to give advice may be hampered by occupational licensing laws. Just as Dr. Hines’ speech with pet owners is protected by the First Amendment, so too is the speech of others like doctors and psychologists.”

“The viability of tele-practice in many occupations depends on First Amendment protection for speech. Dr. Hines’ win is a victory for all Americans who want to seek or give advice online,” said IJ Attorney Andrew Ward, who also represents Dr. Hines. “It is also a win for literally billions of people around the world who, through the internet, have a cheap and simple way to get advice from an American professional that may be entirely unavailable in their own countries.”

After a disability made physical practice too difficult, Dr. Hines spent a decade of his retirement giving online advice to pet owners around the world. For most pet owners he advised, traditional veterinary clinics were not a realistic option. Dr. Hines charged little to nothing, and there was no evidence that animals were anything other than benefitted. Nonetheless, the Texas veterinary board suspended Dr. Hines’ license, fined him and forced him to stop giving life-saving advice. The 5th Circuit then ruled against him in his initial lawsuit. Since then, however, major developments in First Amendment law prompted Dr. Hines to renew his lawsuit.

“This is less a decision about me than it is a decision about the future of all the much younger veterinarians out there who need the freedom to connect with pet owners and their pets in new, better, less expensive ways. That freedom to share good ideas is what the First Amendment is all about,” said Dr. Hines.

Case Appealed to U.S. Supreme Court Seeks to Ensure Prompt Hearings After Property Seizures
  • At America’s Founding, laws directed courts to “hear and determine” forfeiture cases after a mere 14-day delay. Today, property owners must wait months or years for their day in court.
  • Law enforcement has a direct financial incentive to abuse the system, as agencies sell property that they seize and use the proceeds to fund their budgets.
  • Law enforcement frequently uses delay to extract settlements from property owners. Many, unable to wait for a hearing, simply give up.

Arlington, Va.—Does due process require a prompt hearing after the government seizes a vehicle through civil forfeiture?  That is the question the justices of the U.S. Supreme Court will consider addressing in Serrano v. Customs and Border Patrol, a lawsuit appealed by the Institute for Justice (IJ) on behalf of its client, Gerardo Serrano, who had his new truck taken from him at the Mexican border in 2015.

Customs and Border Protection (CBP) didn’t like that Gerardo took photos at the border, which he planned to share on social media with relatives in Mexico to let them know he would see them soon.  Two agents objected and, after stopping Gerardo’s truck, physically removed him from it, took possession of his phone, and repeatedly demanded the password.  Gerardo, a staunch believer in civil liberties who has run for elected office on a platform of respect for constitutional rights, suggested that the agents obtain a warrant.  The border agents responded by telling Gerardo they were “sick of hearing about [ ] rights.”  In retaliation, they went through his new Ford pickup with a fine-tooth comb searching for any excuse to seize his vehicle.  They found five low-caliber bullets, which they absurdly called “munitions of war,” and used them as an excuse to take his vehicle.  (There was no gun in the vehicle.)  For the next two years, despite Gerardo’s repeated requests, the government never gave him his day in court to prove his vehicle’s innocence or to force the government to justify its actions before a judge.

Shortly after Gerardo filed a class-action lawsuit against the CBP (Serrano v. Customs and Border Patrol), the agency tried to moot Gerardo’s case by returning the vehicle.  But the trial court held that the case was not moot—as Gerardo could move forward with class-action claims on behalf of all U.S. citizens who have had vehicles seized at the border—and the 5th U.S. Circuit Court of Appeals agreed.  Still, having rejected the government’s attempt to moot the case, both courts held that due process does not require government to provide a prompt post-seizure hearing after seizing automobiles.  That ruling is now on appeal to the U.S. Supreme Court.

“In the criminal context, after the government arrests you, it must hold a probable cause hearing shortly after the arrest—even if the criminal trial follows later,” said Rob Johnson, an IJ attorney.  “We are saying the government must provide the same kind of prompt hearing after it takes your property.”

Gerardo said, “It’s bad enough that civil forfeiture forces you to prove your property is innocent; it’s worse when the government doesn’t even give you your day in court to state your case.  I understand these kinds of abuses by government authorities can happen in other countries, but not here in America where government power is supposed to be limited by the Constitution.”

At the Founding, forfeiture laws directed courts to “hear and decide” forfeiture cases after just a 14-day delay.  Gerardo’s inability to get his day in court after over two years stems from the explosive use of forfeiture, especially over the past 40 years, and the desire of law enforcement to game the system so it is as difficult as possible for those seeking to get their property back to succeed.  Government can use lengthy delays to extract settlements, and most property owners give up long before their case reaches a judge.

Johnson said, “There is no reason a hearing can’t be held in a matter of two weeks rather than the endless delays property owners now experience.”

“Imagine being detained at an airport checkpoint because you innocently forgot to take a tube of toothpaste out of your luggage,” said Anya Bidwell, an IJ attorney.  “Rather than asking you to throw it out or put it in your checked bag, the TSA seized all your luggage, including the toothpaste tube.  That is basically what Border Patrol agents did to Gerardo.  Then, worse than that, they held onto his vehicle for two years, never giving him a chance to defend himself before a judge or hold those officers accountable for their actions.”

“In any other area of the law, outside of civil forfeiture, the Supreme Court has stated you’re entitled to a swift hearing before or immediately after the government takes your property,” said Scott Bullock, president and general counsel for the Institute for Justice.  “A car should be no different, and yet car and truck owners face years of delay before they can fight in court to get their property back.”

Vehicles often represent a person’s livelihood and their ability to get to work; that just underscores the importance of a swift hearing, to ensure that the loss of a vehicle doesn’t cascade into the loss of someone’s job or worse.

Every year, local, state and federal law enforcement agencies across the United States seize and keep billions of dollars in cash, cars, homes and other property using a legal tool called civil forfeiture.  To better understand the issue, the Institute for Justice released a report titled Forfeiture Transparency & Accountability that examines forfeiture reporting requirements and practices for all 50 states, as well as the District of Columbia and the U.S. departments of Justice and the Treasury.  It finds that forfeiture programs nationwide suffer from a lack of transparency and accountability.

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.  More information on the case is available at:  https://ij.org/case/eagle-pass-civil-forfeiture/.]

Tennessee Parents Appeal School Choice Program to Tennessee Supreme Court

Arlington, Va.—This afternoon, two Tennessee parents appealed to the Tennessee Supreme Court a September decision from an appellate court that declared the Tennessee Education Savings Account Pilot Program in violation of the Tennessee Constitution. The parents planned to use the Education Savings Accounts (ESAs) authorized by the law to remove their children from chronically underperforming school districts and enroll them at schools that meet their needs.

These parents partnered with the Institute for Justice (IJ) to defend the program from a constitutional challenge levied against it in February, and they are jointly defending the program alongside another set of parents represented by the Beacon Center of Tennessee.

In the September ruling against the program, the appeals court ruled that the pilot program was unconstitutional under the Home Rule Amendment of the Tennessee Constitution. This provision prohibits the legislature from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.” But the program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. The law simply empowers low- and middle-income families with children assigned to some of Tennessee’s worst-performing schools, and does so by allowing them to receive their state education benefit in an ESA so that they can afford private educational options that meet their needs. The parents filing today’s appeal are asking the Tennessee Supreme Court to reverse the appellate court and restore Tennessee’s Education Savings Account Pilot Program.

“Today, parents are asking the Tennessee Supreme Court to protect educational choice in Tennessee, and to remind Shelby County and Metro that they exist to serve Tennesseans, not the other way around,” said IJ managing attorney Arif Panju. “Shelby County and Metro launched a legal challenge to extinguish educational options that benefit Tennessee children—their own constituents.”

The ESA program was passed in 2019 by the Tennessee Legislature. The program can offer a lifeline to families that would like to leave underperforming school districts that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying low- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

ShopInPlaceChi.com Ready to Help Windy City Shoppers Connect With Local Small Businesses

CHICAGO—With Small Business Saturday just a few days away and the holiday shopping season already in full swing, Chicagoans should know that there is an easy way for them to find small, local businesses ready to serve them safely. Launched this spring, www.ShopInPlaceChi.com helps consumers search for small businesses by category and neighborhood.

The website is free to the public courtesy of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago (IJ Clinic). The IJ Clinic provides free legal assistance, support and advocacy for low-income entrepreneurs in Chicago.

“This holiday season we’re encouraging Chicagoans to make their gift shopping even more meaningful by supporting a local small business,” said IJ Clinic Director Beth Kregor. “ShopInPlaceChi.com has grown rapidly in the past few months, making it a really useful tool for finding almost anything holiday shoppers are seeking.”

Thanks to a partnership with United Airlines, the number of businesses listed on the website recently expanded. United Airlines volunteers helped add 600 additional listings and provided marketing support to let flyers know that the website is a great way to support Chicago businesses whether they are visiting or call the Windy City home.

The website continues to welcome new submissions from Chicago small businesses selling products in categories such as bath and cleaning products, books, educational supplies, games and toys, food, apparel and more. Businesses interested in being listed on the website should visit shopinplacechi.com/submit-your-business/ and fill out a short form with information about the products they offer, their neighborhood locations, and how consumers can safely purchase their products through delivery or curbside pickup. Listings will be added after a review by IJ Clinic staff and volunteers.

IJ Clinic Director Beth Kregor is available for interviews via phone or video conference. Contact Andrew Wimer, IJ Assistant Communications Director, at awimer@ij.org or (703) 298-5938 to arrange.

Roseau County Landowners Demand Watershed District Disavow Eminent Domain, Receive No Guarantee Their Property Is Safe

The Roseau County Landowners Coalition attended a Roseau Lake project work session earlier this month to demand that the Roseau River Watershed District (RRWD) abandon its plans to force farmers to install flood easements on or sell their productive, multi-generational farmland.

The RRWD’s unnecessary and costly flood mitigation project requires the acquisition of property that is owned by farmers and landowners who do not want to sell. If the RRWD wants to build its current vision, they will have to use eminent domain to acquire easements, against the will of the property owners. An “easement” is a taking of property, and will render the farmers’ taken property useless.

Property owners were hopeful that the RRWD would disavow taking their land, but unfortunately they left the work session with renewed clarity: the threat of losing their land for this project remains. The RRWD Board Chairman refused to go on record against using eminent domain.

“The Roseau County Landowners Coalition’s position is simple: we will not support a project that takes private property away from unwilling sellers. Easements are takings, and these easements would render much of these farmers’ land unfarmable,” said Melanie Benit, an activism associate with the Institute for Justice (IJ), which is assisting the Landowners Coalition. “We are grateful for the support of individual board members who committed to respecting Roseau landowners’ property rights, but it is disappointing that the board as a whole could not. This should outrage farmers throughout the region.”

This “lake rehabilitation” project proposes a combination of embankments and flood control gates. predominantly on private land, to keep excess water in the historic basin. In order to either acquire the land outright or force an easement on these private lands, the RRWD would have to take unwilling sellers to court through eminent domain proceedings. Taking the land outright or by easement makes no difference to the farmers, as either is a loss of farmable property.

All this for a project with little to no benefit. Coalition members have been farming this land for decades, installing their own culverts and control systems to manage flooding. This has allowed them to let enough water on their land to fertilize it, then drain any excess water when necessary. This current system will be undone by the proposed project, turning the usually dry basin into a semi-permanent marsh.

The project will:
• Produce minimal flood reduction, and will do nothing for major flooding events.
• Exacerbate flooding on private property near the basin.
• Swap one wildlife habitat (deer and other upland game frequent the area now) for another.
• Cost at minimum $15 million.

Farmers and landowners have been fighting this project for years, scared to lose what they have worked so hard to own, for good reason. These are real families that have a connection to their farms lasting for generations, with the intention of lasting for generations more. Consider Mitch Magnusson, who grew up on his Roseau farm and has worked his own land since the 1980s; his great grandfather put down roots there in 1895. Now, Mitch’s children carry on the family tradition, farming wheat, soybean, sunflowers and more.

It’s time for the RRWD Board to give the people they represent peace of mind and assure everyone that their work in and around the Roseau Lake basin will not use government force to acquire property.

The Roseau County Landowners Coalition has created a Facebook page, https://www.facebook.com/StopRoseauFarmsLandgrab/, and a website, http://roseaulandgrab.com, to educate and garner support for families like Mitch’s.

About the Institute for Justice
Through strategic litigation, training, communication, activism and research, the Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of society. IJ litigates to secure economic liberty, educational choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.

Tampa Woman Will Finally Get Her $43,167 Back from the Federal Government

TAMPA, Fla.—Stacy Jones’s $43,167 will be returned to her after the Drug Enforcement Administration (DEA) wrongfully seized it as she was flying home to Tampa from the Wilmington International Airport in May of this year. Without offering any explanation or apology for the harm caused by confiscating her money, the DEA informed the Institute for Justice (IJ) via letter that it would transfer the money back to Stacy.

Stacy had flown with large amounts of cash in the past and did not expect it would be a problem when she did so earlier this year. After cutting short a planned trip to a North Carolina casino, she packed money that she had intended to gamble in her carry-on bag. At the airport, Transportation Security Administration (TSA) screeners saw the cash on their X-ray and held onto her bag, even though there was no indication that Stacy or her luggage posed a threat to transportation security. Sheriff’s deputies and DEA agents interrogated her about the source of the money. She explained the legal sources of her money, but the DEA agents seized it—without any allegation of criminality. In July, Stacy teamed up with IJ to fight for her money and to end these unconstitutional and unlawful practices by the DEA and the TSA.

“Getting my money back is a big relief, but DEA never should have taken it in the first place,” said Stacy. “In going through this nightmare, I found out that I’m not the only innocent American who has been treated this way. I hope that my continuing lawsuit will end the government’s practice of treating people flying with cash like criminals.”

IJ’s federal class action lawsuit aims to stop TSA’s and DEA’s unconstitutional and unlawful airport cash seizure practices. First, the suit claims that TSA exceeds its statutory authority by seizing travelers and their luggage simply for traveling with a “large” amount of cash, which poses no threat to transportation security—the agency’s sole mission. Second, the suit claims that this TSA practice also violates the Fourth Amendment rights of flyers. Third, the suit claims that the DEA violates the Fourth Amendment rights of flyers by seizing them based solely on the belief or knowledge that they are traveling with a large amount of cash, and by seizing their money for civil forfeiture without probable cause, based solely on its amount.

“We are glad that Stacy will get her money back, but it is shameful that federal agents keep targeting innocent flyers at our nation’s airports,” said IJ Senior Attorney Dan Alban. “We are going to keep fighting to end TSA’s and DEA’s unconstitutional and unlawful practices of seizing people and their cash without reasonable suspicion or probable cause.”

Stacy’s case is emblematic of the upside-down world of civil forfeiture, where the government brings charges against property instead of people. The government does not have to convict or even charge people with a crime in order to take and keep their property. Property owners are not entitled to legal representation, and the standard of proof needed for the government to keep the property is lower than in a criminal case. More information on federal and state civil forfeiture practices is available at: https://ij.org/report/policing-for-profit/.

Theft of Seized Funds Demonstrates Deep Need for Civil Forfeiture Reform in South Carolina

ARLINGTON, Va.—The Institute for Justice (IJ), which will soon argue before the South Carolina Supreme Court that it should end the controversial practice of civil forfeiture, calls attention to the sentencing of Blair Shaffer, the former police chief of Manning, South Carolina. Yesterday, a federal court sentenced Shaffer to a year and a day in prison for his theft of nearly $80,000 in cash seized by his office during a traffic stop. Shaffer’s sentencing is part of a series of high-profile prosecutions that demonstrate the need to end “policing for profit” in the Palmetto State.

Shaffer’s theft was discovered after a state court ordered that some of the seized money be returned to the property owners, and the money was sent to their attorneys in the form of checks drawn from Shaffer’s personal bank account. The U.S. Department of Justice brought federal charges after an FBI investigation. That a South Carolina officer had the opportunity to commit such a crime shows how the profit motive inherent in civil forfeiture distorts law enforcement priorities.

“South Carolinians’ property rights deserve to be treated with respect, but it is not surprising to see that another former law enforcement official has been convicted for misusing seized funds since the legal practice of civil forfeiture lets law enforcement treat citizens like ATMs,” said Robert Frommer, a senior attorney at the Institute for Justice. “Moving seized funds into a personal bank account is a crime. Yet it is legal for officers to seize cash without charging the owner with a crime—let alone securing a conviction—and then use that cash as a slush fund for their agency. The South Carolina Supreme Court should end civil forfeiture’s profit incentive, which too often turn cops into robbers.”

Under South Carolina’s forfeiture system, prevailing police and prosecutors get to sell the owner’s property and keep at least 95% of the proceeds for their agencies. As a report by the Institute for Justice demonstrates, the financial incentive posed by civil forfeiture lures officials away from the impartial pursuit of justice and toward policing for profit.

South Carolina’s forfeiture laws also lack accountability. The law requires that forfeiture proceeds be put into accounts dedicated exclusively to seizing and forfeiting agencies. Those agencies typically do not have to ask anyone for permission before they spend the money in those accounts. And since agencies do not need to report how much they have spent in forfeiture proceeds, or on what, the true scale of South Carolina’s “policing for profit” problem is impossible to measure.

Maine Parents Challenging Law Excluding Religious Schools from State’s Tuition Program Will Appeal to Supreme Court

Arlington, Va.—A panel of the 1st U.S. Circuit Court of Appeals today issued a ruling upholding a Maine law that excludes religious schools as an option for parents and students from the state’s high school tuitioning program. The ruling comes despite the recent U.S. Supreme Court decision in Espinoza v. Montana¸ which struck down similar restrictions in a school choice program. The parents challenging the law and their attorneys at the Institute for Justice (IJ) and the First Liberty Institute (FLI) will appeal today’s decision to the U.S. Supreme Court.

“Today’s decision allows the state of Maine to continue discriminating against families and students seeking to attend religious schools and we will immediately appeal to the U.S. Supreme Court,” said IJ Senior Attorney Tim Keller. “The Supreme Court’s recent decision in Espinoza prohibits religious discrimination in educational choice programs. Today’s decision is disappointing for families across Maine, but we are confident the Supreme Court will ultimately put a stop to it.”

Maine is home to the nation’s second-oldest school choice program. Since 1873, Maine’s “tuitioning” system has paid for parents in towns too small to maintain public schools to send their children to the school of their choice—public or private, in-state or out-of-state. Until a flawed 1980 legal opinion, parents were free to exercise their independent choice to select religious schools.

“The U.S. Constitution does not allow the government to discriminate against religious educational options,” said IJ Senior Attorney Arif Panju. “The state of Maine has done so for 40 years, and we will ask the U.S. Supreme Court to finally put an end to it.”

The three plaintiff families reside in small towns—Orrington, Glenburn and Palermo—where the local school districts pay tuition for resident high school students to attend the public or private schools of their choice in lieu of maintaining their own public high schools.

Court Says Lincoln Home Baker’s Lawsuit Challenging City’s Unnecessary Regulations May Proceed

OMAHA, Neb.—Yesterday, the Lancaster County District Court denied the city of Lincoln’s motion to dismiss, permitting home baker Cindy Harper’s lawsuit against the city to move forward. Cindy’s lawsuit, brought by the Institute for Justice (IJ) in partnership with Husch Blackwell LLP, challenges Lincoln’s decision to bring back regulations at the local level that were repealed by the state legislature. 

In 2019, the Nebraska legislature passed LB 304 to exempt home bakers from having to satisfy unnecessary permitting and inspection requirements. But in January 2020, Lincoln went rogue, unveiling new regulations designed to reimpose the same permitting and inspection requirements that the legislature deemed unnecessary. 

“I’m happy to be moving forward in this process,” said Cindy Harper. It’s good to be one step closer to the elimination of the unfair and inequitable regulations that Lincoln is imposing on its residents.” 

“Lincoln’s ordinance is an affront to local home bakers,” said IJ attorney Keith Neely. “Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska and the legislature intended to give home bakers the same opportunity to sell their goods whether they live in Lincoln, or Omaha, or Bellevue.” 

In denying the city’s motion to dismiss, the court appeared to agree. “There seems to be some tension” between LB 304 and Lincoln’s ordinances, the court explained. “[I]t is enough to say that the Plaintiff has plausibly alleged that the statute and ordinances are not consistent.” 

This case is part of IJ’s National Food Freedom Initiative. IJ is currently challenging similar regulations in North Dakota and has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home-canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including Kentucky, Maryland, Nebraska, West Virginia and Wyoming.  

Members of Congress, Scholars & Advocates Urge High Court Not to Create Loophole for Government Officials Seeking to Escape Accountability

Arlington, Va.Brownback v. King, a case in which the government is seeking to create a huge new loophole through which government workers can escape accountability when they violate someone’s constitutional rights, will be argued before the U.S. Supreme Court on Monday, November 9, 2020. In anticipation of that argument, scholars, public interest advocates and members of Congress have submitted friend-of-the-court briefs urging the justices to reject the government’s effort to prevent those whose rights have been violated from ever having their day in court.

The case centers on James King, an innocent college student unreasonably misidentified as a non-violent fugitive by plainclothes members of a joint state-federal task force and then mercilessly beaten, choked unconscious and hospitalized for his injuries. Six years after the beating, the government continues to prevent James from ever having his case against the officers argued in a court of law.

At the heart of the dispute is the U.S. Solicitor General’s assertion that because James brought two sets of claims in the trial court—one for constitutional violations by the officers and another against the United States as the employer of these officers—his constitutional claims cannot be pursued against the officers because the claims against the government were dismissed by the court. This radical interpretation of the Federal Tort Claims Act (FTCA) is especially galling when one considers that the FTCA was enacted to make it easier—not more difficult—for plaintiffs to recover for violations of their rights. But the Solicitor General now seeks to weaponize the FTCA against people like James, thus ensuring rogue officers like those who beat James can escape accountability.

In addition to the Institute for Justice’s brief filed on behalf of James, several amicus briefs have also been filed by leading members of Congress, legal scholars and public interest advocates on James’ behalf. These include:

  • A brief on behalf of members of Congress argues that Congress passed the Federal Tort Claims Act to allow individuals to sue the United States as means for recovering for violations of constitutional rights by its employees. The government’s interpretation of the Federal Tort Claims Act would circumvent this foundational principle and the very reason for the passage of the act.
  • A brief on behalf of the Law Enforcement Action Partnership, a nonprofit organization whose members include police, prosecutors, judges, corrections officers and other law enforcement officials, argues that the government’s interpretation of the Federal Tort Claims Act is inconsistent with common law. Furthermore, according to the brief, the government’s interpretation would further undermine trust between law enforcement and the public—the last thing we need in these unsettling times.
  • A brief that crosses philosophical boundaries on behalf of Cato and the National Police Accountability Project argues that a two-track system of accountability for federal versus state officials already exists—it is much more difficult to hold federal officials accountable for violations of constitutional rights. The government’s interpretation of the Federal Tort Claims Act would further widen the gap between the two regimes and cause an even greater proliferation of federal-state task forces, which is a mechanism invented to allow state officers to take advantage of the more permissive federal regime.
  • Briefs by the ACLU and the Public Citizen provide outstanding textual analyses of the Federal Tort Claims Act’s relevant provisions, as well as trace these provisions’ roots to the common law. The briefs are clear: Both the text of the Federal Tort Claims Act and its reliance on the common law principle of res judicata support James’s argument that he should be allowed his day in court.
  • A brief by Professors James E. Pfander, Gregory C. Sisk and Zachary D. Clopton—leading experts on the Federal Tort Claims Act—provides the Court with a sophisticated analysis of text, history and context of the Federal Tort Claims Act and argues that all three weigh heavily in favor of James King and against the government’s position.

“We are grateful for the support of all these outstanding groups and individuals,” said President and General Counsel of the Institute for Justice Scott Bullock. “Their briefs make it clear that the government is taking an extreme position in this case, and its unorthodox reading of the Federal Tort Claims Act should be rejected. James must be allowed his day in court.”

James King shared his story in this brief video produced by the Institute for Justice.

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information on the case is available at:  https://ij.org/case/brownback-v-king/.]

Pennsylvania Judge Orders Pottstown to Hand Over Records In Pottstown Residents’ Lawsuit Over Unconstitutional Home Inspections

Wednesday afternoon, Judge Richard P. Haaz for the Court of Common Pleas of Montgomery County, Pennsylvania, denied the borough of Pottstown’s motion for a protective order in a lawsuit over its rental inspection law that forces landlords and tenants to open their properties and homes to intrusive inspections. Pottstown renters, a landlord, and residents of a non-rental home the borough attempted to search partnered with the Institute for Justice (IJ) to challenge the inspections in 2017. They challenged the inspections for violating Article I, Section 8 of the Pennsylvania Constitution’s right to privacy in the home. Wednesday’s order ensures that Pottstown residents will have a full record of how these inspections are actually conducted—and what inspectors actually do once they are inside peoples’ homes. 

On June 23, 2020, the court ordered Pottstown to produce “all requested documents.” Pottstown chose to defy this order and instead filed for a protective order in the Court of Common Pleas, asking for the quantity of documents it had to produce to be severely limited and for the right to withhold all electronically stored information.  

And that’s not all—Pottstown claimedfor the first time in the three years of this litigation, that producing these documents was so burdensome that the plaintiffs challenging the constitutionality of the rental ordinance should pay for what the court had ordered. The plaintiffs in the lawsuit, in reaction to Pottstown’s obstinate unwillingness to satisfy its discovery obligations, asked the court to allow the plaintiffs to appoint a computer forensics expert trained in data recovery to retrieve the borough’s files. Judge Haaz granted this request in Wednesday’s order. 

“Pottstown’s attempts to keep its unconstitutional inspections hidden from public view were always meritless, and we’re pleased to see the court recognize it as such,” IJ Attorney Robert Peccola said. “With these records, we will be one step closer to vindicating Pottstown residents’ constitutional rights.” 

IJ to Wisconsin Supreme Court: Dane County Order Closing Private Schools is Unconstitutional Protectionism

Arlington, Va.—The Institute for Justice, a non-profit public interest law firm that advocates for educational choice and economic liberty, filed an amicus brief with the Wisconsin Supreme Court in support of parents challenging a Dane County, Wisconsin, order closing private (and public) schools for grades 3-12. While Dane County allows childcare and educational camps at these facilities, it has completely banned in-person instruction at the behest of private schools’ competitors—teachers’ unions. In its brief, IJ reminds the Wisconsin Supreme Court that this protectionism is an illegitimate purpose under the Wisconsin Constitution.

“The Wisconsin Constitution forbids politicians from protecting special interests from competition,” said IJ Attorney Milad Emam. “In closing schools for their competitors’ benefit, Dane County has violated parents’ right to direct their children’s schooling.”

After Dane County first closed schools in August, a group of families and private schools petitioned the Wisconsin Supreme Court to review the County’s order. Last month, the Court temporarily enjoined the order for being beyond the County’s authority. While legal counsel for the families and schools has focused its arguments on whether the order complies with state law and whether it violates religious-liberty protections, the IJ brief reminds the Court that the order also fails constitutional scrutiny because it is purely protectionist.

IJ has successfully challenged several protectionist restrictions on economic liberty in three Wisconsin cases. In the past decade, IJ has won constitutional challenges to Wisconsin’s ban on selling home-baked goods, Milwaukee’s cap on taxi permits and a Door County town’s ban on food trucks.

Since its founding over a quarter-century ago, IJ has also successfully defended school choice programs across the country, including three times at the U.S. Supreme Court. IJ is currently representing families in Tennessee seeking to protect a newly established scholarship program and challenging discriminatory scholarship programs in Maine, Vermont and New Hampshire.

Federal Court Approves Settlement, Restores Constitutional Rights to Victims of NYPD’s No-Fault Eviction Campaign

Arlington, Va.—On Monday, October 5, 2020, Judge Andrew L. Carter, Jr. of the U.S. District Court for the Southern District of New York approved a settlement order providing systemic relief to thousands of New Yorkers whom the city had targeted for no-fault evictions in years past. For decades, the city used its no-fault eviction program to coerce residents and businesses to enter into settlements waiving their constitutional rights. Under this week’s settlement order, the city will be barred from enforcing those no-fault settlements across the board.

“This week’s settlement order has been a long time coming,” said IJ Attorney Sam Gedge. “For years, New York City used the threat of eviction to break up families, forcing leaseholders to kick out children, spouses and siblings—many of whom were never charged with a crime. Other times, the city would force businesses to consent to warrantless searches and video monitoring. Monday’s settlement order delivers justice to the countless New Yorkers who were stripped of their constitutional rights in these ways.”

Through a program dating back to the 1990s, the New York Police Department often threatened to evict businesses and residents when somebody—even a total stranger—committed a crime at or near their property. Once eviction proceedings were underway, New York City’s prosecutors would then bully the businesses and residents into signing away their constitutional rights in order to avoid eviction. Parents would have to agree to bar their children from their homes. Businesses would have to agree to warrantless searches. Others would have to agree to waive judicial oversight of future sanctions imposed by the NYPD.

READ THE STIPULATION AND ORDER OF SETTLEMENT 

Laundromat owner Sung Cho learned about these practices the hard way. After undercover police officers came to Sung’s laundromat and offered to sell stolen electronics to his customers, the NYPD threatened to evict him from his business. The city said it would let him stay if he agreed to three demands: waive his Fourth Amendment right against warrantless searches, grant police unlimited access to his security camera system, and allow the NYPD to impose sanctions for alleged criminal offenses even without any opportunity for a hearing before a judge. Faced with eviction, he reluctantly settled on the city’s terms.

After Cho—along with co-plaintiffs David Diaz and Jameelah El-Shabazz—teamed up with the Institute for Justice (IJ) to challenge settlements like these, the city overhauled its no-fault eviction practices in May 2017. But thousands of New Yorkers remained bound by unconstitutional settlements that the city had extracted in the past. In changing its law, the city left them behind.

Monday’s settlement order grants relief to those thousands of New Yorkers. Going forward, the city has agreed that the NYPD “shall not enforce or seek to enforce the terms of any Stipulation of Settlement” secured in any pre-May 2017 no-fault eviction cases. The city also agreed to send notice of the settlement to the trial courts of the five boroughs, to the NYPD’s Civil Enforcement Unit, and to properties targeted for no-fault evictions going back to January 2014.

“This week’s settlement is a victory not just for me, but for everyone like me,” said Cho. “The city’s no-fault eviction program treated me like a criminal when I did nothing wrong. Many other New Yorkers faced the same treatment, and the settlement ensures that their rights will be respected going forward.”

“This lawsuit has sought to vindicate a simple principle,” said IJ Senior Attorney Rob Johnson. “The government shouldn’t be using the threat of eviction to force people to waive their constitutional rights. The settlement entered this week secures the rights of thousands of New Yorkers who were targeted by the city’s no-fault eviction program.”

The Institute for Justice is a nonprofit, public interest law firm that fights for property rights nationwide. In a class action against the City of Philadelphia and its law-enforcement agencies, IJ ended a similar practice by the Philadelphia District Attorney’s Office in coercing property owners to waive constitutional rights. Currently, IJ is also challenging a compulsory-eviction program in Granite City, Illinois. IJ was joined in Sung Cho v. New York City as local counsel by Ana-Claudia Roderick of Kilpatrick Townsend & Stockton LLP.

North Carolina Shelter Sues for Right to Offer Private Charity on Private Property

When the Catherine H. Barber Memorial Shelter applied for a zoning permit to open at a new facility in North Wilkesboro, its board of directors was confident that the town would grant the permit. After all, the building is in an ideal location, near businesses and public transit but far from residential areas, and it meets the town’s requirements for homeless shelters. They assumed they would get the permit and could then shift to renovating the space to meet their needs. But one thing they didn’t expect was the town Board of Adjustment to break its own rules—as well as state law and the Constitution—to find a reason to deny the permit.

Citing the shelter’s supposed lack of “harmony” with the community, among other reasons, on September 9, 2020, the Board of Adjustment rejected the shelter’s application. Now, with the help of the Institute for Justice, the Barber Shelter is fighting back. Today it filed a lawsuit to the challenge the Board’s denial and stand up for the shelter’s right to use private property for private charity.

“There is not a ‘harmony exception’ to the Constitution’s protection of private property,” said Diana Simpson, an attorney at the Institute for Justice, which represents the Barber Shelter. “The Supreme Court has made it clear that when the government limits people’s property rights, it must follow the rules and have a rational reason for imposing those limitations. The Town of North Wilkesboro and its Board of Adjustment could not point to a single good reason to reject the Barber Shelter, but they denied the permit anyway. From their actions, it is clear that they just don’t want a homeless shelter anywhere.”

The Catherine H. Barber Memorial Shelter opened its doors more than three decades ago. As the only shelter in all of Wilkes County, N.C., most clients are experiencing temporary homelessness due to acute economic distress, domestic abuse, or a family breakdown. Its goal is to transition people as quickly as possible to more long-term arrangements, working with local social services agencies to help people access resources and get back on their feet.

In search of new space, the Barber Shelter was relieved when a local dentist offered to donate his 3,000 square foot office building. It is in an ideal location—in the Highway Business district, just as the zoning code requires; its immediate neighbors are a mix of non-residential uses, such as a cell-phone store and gym; it is near public transit; and the state just built new sidewalks along the road. In other words, the property completely satisfies the town’s zoning requirements.

But that is not enough for the Town of North Wilkesboro, which has taken steps in recent years to remove people in need from visibility. Until 2018, shelters were allowed without a special permit. But after getting wind that a nonprofit from a neighboring county was considering building a shelter in North Wilkesboro, the town amended its zoning code to add specific requirements for homeless shelters, including that they obtain a conditional-use permit from the town’s Board of Adjustment.

The Barber Shelter’s conditional-use permit application objectively satisfied the zoning code’s homeless shelter ordinance. Even the Board of Adjustment agreed: “[T]he issue here is that it meets the zoning requirements, but that doesn’t mean it belongs there,” said Board of Adjustment Chair Lisa Casey. So the Board of Adjustment came up with irrational reasons to deny the permit. One such reason? The supposed danger of the proximity of the Barber Shelter to the road and sidewalks, despite the fact that the zoning code requires shelters be next to busy roads with sidewalks.

“All we want to do is serve our clients and our community,” said Barber Shelter Chair Elizabeth Huffman. “It isn’t right that the town is making up reasons to keep us out.”

The lawsuit asks the court to hold that the Barber Shelter’s constitutional rights are violated by the town requiring that homeless shelters obtain a conditional-use permit, even though similar uses, like drug rehabilitation facilities, don’t need one. It also argues that the Board of Adjustment violated the U.S. Constitution in denying the Barber Shelter a conditional-use permit based on irrational reasons not supported by evidence.

“The principles of this case affect Americans everywhere,” said IJ Attorney Alexa Gervasi. “Allowing the Board’s decision here to stand paves the way for zoning boards to invent irrational reasons to deny any applicant their permit, regardless of their proposed use.”

In recent years, the Institute for Justice has particularly focused on the abuse of zoning laws through excessive fines and fees to deny freedom and opportunity to those of modest means. This case expands on that work.

“In such difficult times, it is more important than ever that officials and courts respect the basic rights to equal protection and property ownership that have enabled so many to escape poverty and chart their own courses,” added IJ Senior Attorney Jeff Rowes.

Six South Side Businesses Selected for Finals in Pitch Showcase

CHICAGO—Six South Side businesses will compete November 5 in the finals of the seventh annual South Side Pitch. The pitch showcase is transforming for this year, highlighting existing businesses that are taking on the challenges of 2020 in new and unique ways. The contest is going online this year to keep contestants, judges and the audience safe. The six finalists below will compete to win several prizes, including a total of $20,000 in cash prizes—nearly double the amount awarded last year.

  • Kido – Children’s shop focused on representation and inclusivity in the South Loop.
  • Lemonade Land – Pop-up market for micro Black-owned businesses in the South Shore, Greater Grand Crossing, and Woodlawn areas.
  • Maestri Tutoring – Bilingual tutoring center for working-class families in Pilsen.
  • New Magnolia Garden Center – A U-pick farm and garden center located in Back of the Yards.
  • TheBlackMall.com – A marketplace of Black-owned businesses that includes an online business directory and a brick-and-mortar shop in Chatham. (This business earned its spot by winning the most votes from the public in the semi-final round.)
  • Wesley’s Shoes – Sit-and-fit family shoe store serving customers since 1970 in Hyde Park.

“Entrepreneurship is the way to reclaim our communities and be the leaders our children need,” said Keewa Nurullah, owner of Kido. “South Side families deserve bright, colorful spaces and shop owners who treat them with respect.”

“Small businesses are the heart of South Side communities and we need to come together to see them through these tough times,” said Amy Hermalik, the associate director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago. “South Side Pitch has long shined a spotlight on entrepreneurs looking to take their first steps into the business world, but this year we thought it was critical to recognize how existing business are showing entrepreneurial spirit in tackling the unique challenges of 2020. We have a great group of finalists and we can’t wait to hear their pitches.”

South Side Pitch allows incredible entrepreneurs to share their success stories and the impacts their businesses have in a “Shark Tank”-style contest. Prior winners have used their prizes to expand their businesses and create new jobs. Last year’s first-place winner, Dinobi Detergent, used its prize money to increase its marketing efforts and invest more in its product. Since winning, Dinobi Detergent has expanded to more retailers and several online platforms.

South Side Pitch is hosted by the Institute for Justice Clinic on Entrepreneurship. The contest is sponsored by the Polsky Center for Entrepreneurship and Innovation and the University of Chicago Office of Civic Engagement. To learn more, visit www.southsidepitch.com.

Case Appealed to Supreme Court Seeks to Prevent Widespread Harassment Of Nonprofit Donors

America’s Tradition of Donor Privacy in Jeopardy

Arlington, Va.—Can the government demand to know your name and home address merely because you’ve contributed to an organization you believe in? Unless the U.S. Supreme Court accepts and overturns the case of Americans for Prosperity Foundation v. Becerra, that is exactly what will take place in California—opening the way for other states to do likewise, and putting the safety of donors and the financial footing of nonprofits at risk.

The threat to donor safety and the financial wellbeing of nonprofits is not theoretical.

The U.S. Supreme Court has long held that the First Amendment protects the privacy of charitable donors. In the 1950s, the Court rejected an attempt by the State of Alabama to force the NAACP to turn over the names of its donors, recognizing that the risk of donors being harassed or threatened would undermine the civil rights organization’s base of financial support. But in September 2018, the 9th U.S. Circuit Court of Appeals upheld a similar disclosure requirement in the Americans for Prosperity (AFP) case.

“Multiple people associated with Americans for Prosperity have received death threats or otherwise been harassed,” said Paul Sherman, a senior attorney with the Institute for Justice, which filed a friend of the court brief on behalf of AFP urging the Court to take up the case. “At the same time, California has done a terrible job of keeping the nonprofit records it receives confidential; Americans for Prosperity’s expert witness was easily able to access all 350,000 of the supposedly ‘confidential’ documents stored on the Attorney General’s website.”

The 9th Circuit downplayed concerns that AFP donors might face harassment if their identities were known, citing the fact that the state does not intentionally disclose that information to the public.

Sherman said, “A fundamental purpose of privacy of association is to protect citizens from what government might do with that information. At a time when trust in government is near historic lows, charitable donors have every reason to want to keep their identities private. If the government thinks that information is necessary to investigate violations of the law, it can do what the government is supposed to do: get a warrant.”

Sherman added, “The 9th Circuit’s ruling sets a dangerous precedent. It expands the Supreme Court’s precedent on disclosure for political campaigns to cover all charitable groups, regardless of whether they comment on political candidates or ballot issues. It covers not only 501(c)4 organizations, but 501(c)3’s as well. But under the First Amendment, privacy is the rule when it comes to freedom of association, and compelled disclosure is the exception—not the other way around.”

Said Sherman, “Imagine being a supporter of Planned Parenthood and living in the Bible Belt, or the NRA and living in San Francisco. If the government can collect your name and home address and potentially expose that information to the world, you’re going to think twice about supporting such groups.”

“Disclosure is supposed to be about keeping tabs on government, not keeping tabs on private citizens,” said IJ’s President and General Counsel Scott Bullock. “Transparency is important for the government so the public can assess the actions of its lawmakers. But privacy for the individual—in their freedom of speech and freedom of association—is an essential American value, going as far back as the anonymous authorship of the Federalist Papers. Those anonymous documents laid the foundation for the very Constitution that should be debated before the U.S. Supreme Court in Americans for Prosperity v. Becerra.”

The Supreme Court has requested that the U.S. Solicitor General file a brief expressing the federal government’s views on the case, and has relisted the case for consideration multiple times—both considered strong signals that the Court is considering granting review in the case. A ruling on whether to take the case is expected early in the October 2020 Supreme Court term.

California Eases Restrictions on Nurse Practitioners

Late Tuesday, California Gov. Gavin Newsom signed a bill that will significantly ease restrictions on nurse practitioners (NPs), nurses with advanced degrees who can diagnose symptoms, treat patients and prescribe medicine. Prior to reform, California was one of 22 states that barred NPs from working, or even volunteering in hospitals, unless they were supervised by or collaborated with a physician. 

But under the newly signed AB 890, NPs who have been in practice for at least three years, will finally be able to operate independently, without physician supervision. Once the new law takes effect in 2023, California will become the 16th state to grant NPs with full practice authority following a transition period. Another 13 states let NPs practice independently immediately after becoming licensed. 

“Physician supervision requirements are completely unnecessary and are hurting states’ efforts to respond to Covid-19,” said Institute for Justice Senior Attorney Erica Smith, who submitted testimony in favor of the bill. “Nurse practitioners want to be able to volunteer now, but they are getting caught in red tape.”

Nurse practitioners across the country have struggled to find supervising physicians, either because of limitations in their medical malpractice insurance, or an unwillingness to take on additional responsibilities during this chaotic time. In addition, NPs must often pay physicians thousands of dollars for supervision.

Yet research from numerous organizations across the political spectrum, including the Brookings Institution and the American Enterprise Institute, have found that empowering NPs could have significant benefits for health care efficiency without sacrificing quality of care. Instead, the evidence suggests that restrictions on nurse practitioners serve only to raise prices and protect doctors from competition. 

With many hospitals in desperate need of medical personnel during the Covid-19 pandemic, it may also cost lives. For this reason, multiple organizations and individuals, including the U.S. Secretary of Health and Human Services, have called on states to lift restrictions on NPs during the pandemic.

Tennessee Parents Vow to Appeal Court Ruling Against School Choice Program

Arlington, Va.This afternoon, The Court of Appeals of Tennessee at Nashville ruled that the Tennessee Education Savings Account Pilot Program Act, enacted in 2019 to give thousands of Tennessee families greater school choice, is unconstitutional under the Home Rule Amendment of the Tennessee Constitution. Natu Bah and Builguissa Diallo, two Tennessee parents who planned to use the ESA, partnered with the Institute for Justice (IJ) to defend the program from a constitutional challenge levied against it in February. They have vowed to appeal this ruling to the Tennessee Supreme Court.

“Today’s ruling treats Tennessee children as mere conduits for channeling money into school district budgets,” said IJ managing attorney Arif Panju, “and it ignores that the Tennessee Constitution requires government to serve the people, not extinguish their educational options. We will immediately appeal to the Tennessee Supreme Court.”

The ESA Program was passed in 2019 by the Tennessee Legislature. The program offers a lifeline to families that would like to leave public schools that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying lower- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

Second California Man Joins Suit for the Right to EMT Certification

SACRAMENTO, Calif.—Fernando Herrera served in one of California’s inmate fire camps. He credits the experience with helping him turn his life around. Even so, Fernando is unable to get certified as a first responder because of his record. Now, Fernando is joining an existing lawsuit from the Institute for Justice (IJ) that challenges California’s ban on EMT certification for people with felony convictions.

“I made mistakes as a teenager and I regret the things I did,” said Fernando. “But serving in the fire camps showed me that I can give back to my community. Unfortunately, California says I can never get certified as an EMT, even though I was good enough to be a first responder while in prison.”

Fernando grew up in Marysville, California, and got involved with what he calls the “street lifestyle” when he was 14. While in detention, Fernando and his friends attacked another boy they had previously assaulted. Prosecutors threatened a host of charges related to the fight and previous incidents, prompting Fernando to take a plea deal that admitted to two adult felonies.

Following his time in custody, Fernando served with the California Conservation Corps, a state program that provides development for young adults through work in fire protection, land maintenance and other conservation work. Serving in the Corps, Fernando helped battle the 2018 Camp Fire, the deadliest wildfire in California history.

California categorically bans anyone with two or more felonies from ever applying for an EMT certification. EMTs are not paramedics and the certification does not grant one the right to drive ambulances or enter homes. Instead, it is a basic certification proving that an individual can administer non-invasive lifesaving techniques such as CPR. More than 60,000 Californians are certified EMTs and they work in a diverse variety of careers.

“California wants to exclude Fernando for the rest of his life because of things he did when he was 14 and 15,” said IJ Attorney Andrew Ward. “Fernando served his time and now he wants to serve the public. California should let him.”

California recently created a new law to let people apply to expunge their records if they served in the prison fire camps, A.B. 2147. However, the new law is limited. Most people with felony convictions still cannot apply for an EMT certification, regardless of rehabilitation.

“California took a step in the right direction by allowing at least some people who served in inmate fire camps to get into firefighting careers,” said IJ Attorney Joshua House. “However, the irrational EMT ban remains in place, so our lawsuit will continue, now with an additional client.”

Fernando and current plaintiff Dario Gurrola were two of the thousands of inmates that California annually employs at fire camps across the state. Non-violent, minimal-custody inmates are trained to work on fire lines and perform conservation and community service projects that reduce the threat of fires and flooding. Volunteers at the camps receive the same training as seasonal firefighters and do much of the same work.

After Being Arrested for Speaking Out, a Texas Woman Sues to Hold Gov. Officials Accountable

Last year, Sylvia Gonzalez—a 72-year-old retiree—was elected to the Castle Hills, Texas city council on the promise that she’d work to make the city more responsive to citizens’ needs. But Gonzalez’s reform agenda did not sit well with the incumbents—representing the city’s entrenched interests—including the mayor and city manager, who residents complained did little to address their concerns. Rather than listening to her concerns, officials abused their power to retaliate against Gonzalez.

Within weeks of winning her election, the harassment began. First, the city attorney, who was aligned with the mayor and the city manager, claimed she wasn’t properly sworn in and replaced Gonzalez on the city council with the woman she’d just beaten. When a judge reinstated Gonzalez, the city officials didn’t give up.

In fact, that was only the beginning. In the midst of their attempt to unseat her, the mayor and police chief used bogus charges and a rarely-used law to have Gonzalez arrested, booked, and thrown in jail—but Gonzalez had done nothing wrong. Once the county prosecutor got involved, he dropped the case against her.

Finally, after beating back the city twice, a group of citizens aligned with the mayor filed a lawsuit claiming Sylvia was incompetent. Sylvia stood her ground and won—but by then the damage had been done. Sylvia’s mugshot had been splashed across the news and her reputation dragged through the mud. Exhausted—with tens of thousands of dollars in legal bills—she stopped the fight to reclaim her seat.

Sylvia may have given up on her seat, but she hasn’t given up on her ultimate mission to hold the city officials accountable. Today she partnered with the Institute for Justice (IJ), a national public interest law firm, to file a lawsuit against the city officials who abused their power and violated Sylvia’s First Amendment right to speak out against the government.

“Castle Hills officials seem to believe that they are above the law because they are the law,” said Anya Bidwell, an attorney at the Institute for Justice, which represents Sylvia. “But criticism isn’t criminal, it is a constitutional right. And it is patently unconstitutional for an official to use the police to stifle speech and retaliate against political opponents.”

From the upper echelons of the federal government through state bureaucrats and inspectors to local police and prosecutors, Americans are becoming increasingly aware of the role courts play in holding officials accountable for illegal or unconstitutional actions. Unfortunately, in many circumstances, courts have held that government officials are immune, but that is beginning to change. In November, the Institute for Justice will argue a case at the Supreme Court that seeks to hold government officials accountable for beating an innocent college student because they unreasonably misidentified him as a fugitive.  And a growing number of federal appeals courts have ruled that official immunity is not absolute: When officials flagrantly violate citizens’ rights—as they did in Castle Hills—they can be held accountable in court.

“When the government officials who are charged with upholding the law break it, they have to be held accountable,” said IJ attorney Patrick Jaicomo. “What good are rights without legal remedies? The courts are a necessary check on government power. This lawsuit seeks to give Sylvia an opportunity to have her day in court and stand up for her constitutional rights.”

“I was arrested and thrown in jail because city officials didn’t like that I criticized them,” said Sylvia Gonzalez, the plaintiff in this lawsuit. “But being able to disagree with the government is at the heart of our democracy, and I’m here to stand up and make sure others are not silenced the way I was.”

Bidwell added: “A hallmark of the American experiment is that the average citizens can step up and run for local elective office. In many ways, Sylvia is a model citizen. She doesn’t have so much as a speeding ticket on her record, and yet she was arrested and thrown in jail for standing up to the powerful and speaking her mind. This is not Putin’s Russia, where critics are silenced, this is America. We’re confident the courts will see this for what it is: a flagrant abuse of power that must be checked.”

The lawsuit asks the court to hold that Sylvia’s constitutional rights were violated when the government arrested her in retaliation for her speech, as well as unspecified damages to cover the money Sylvia spent to defend herself against the onslaught by the city. The lawsuit is part of IJ’s Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then government officials must follow the Constitution.

South Side Pitch Competition Transforms to Help Businesses Confronting the Challenges of 2020

CHICAGO—Small businesses across the South Side of Chicago are finding creative solutions to confront the economic challenges of 2020. For a seventh year running, the South Side Pitch business competition will highlight inspirational individuals determined to improve their lives and their community. However, unlike the past, this year the competition will focus on existing small businesses that make their neighborhoods great. Also, for the first time in the competition’s history, the public is being invited to pick one of the finalists among the 23 semi-finalists.

Voting is open today at the Institute for Justice Clinic on Entrepreneurship’s Facebook page and South Side Pitch’s YouTube page. Pitching videos from all of the semi-finalists are available at these pages, and Facebook and YouTube users can vote for their favorites by liking videos. The video with the most total likes will automatically qualify for the finals. You can also learn more about each semi-finalist by visiting: https://southsidepitch.com/2020-semi-finalists/.

“While 2020 has been a challenging time to run or launch a business, we know that there are many entrepreneurial South Siders who are creating opportunities out of challenges,” said Amy Hermalik, the associate director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago. “We do not want to miss the opportunity to shine a light on the incredible contributions they make every day and we want all of Chicago to be able to participate. We hope that by going online this year, even more people across Chicago and around the world can see the dynamism and strength of the South Side on display.”

South Side Pitch allows incredible entrepreneurs to share their success stories and the impacts their businesses have in a “Shark Tank” style contest, with the final contestants presenting their pitches during an online event on November 5. Applicants compete to win several great prizes, including a total of $20,000 in cash prizes, nearly double the amount awarded last year.

This year, South Side Pitch welcomed entrepreneurs past the idea stage—established businesses with a track record of serving customers —to apply. Finalists will have the opportunity to present online in November.

Prior winners have used their prizes to expand their businesses and create new jobs. Last year’s first-place winner, Dinobi Detergent, used its prize money to increase its marketing efforts and invest more in its product. Since winning, Dinobi Detergent has landed in stores and several online platforms. Dinobi Detergent owners Augustine and Sylvia Emuwa said, “The Southside pitch funds helped to solidify our direction as a startup. We went from a concept to a business that continues to grow and gain exposure. We are so happy to have been a part of this amazing community impact effort.”

South Side Pitch is hosted by the Institute for Justice Clinic on Entrepreneurship. The contest is sponsored by the Polsky Center for Entrepreneurship and Innovation and the University of Chicago Office of Civic Engagement. To learn more, visit www.southsidepitch.com. 

The Institute for Justice Clinic on Entrepreneurship provides free legal assistance, access to resources and advocacy for low-income Chicago entrepreneurs. To learn more about the IJ Clinic, visit www.ij.org/clinic.

After a Judge Overturned Wilmington’s Vacation Rental Regulations, City Asks Court If It Can Continue to Break the Law While It Appeals

Wilmington, N.C.—Wilmington’s vacation rental owners will have to wait a little longer to celebrate their right to rent their home. Following a decisive win on Tuesday, yesterday the city announced it would appeal the decision and asked the court to suspend enforcement of the order until the appeals process is complete. The city argued that compliance with the ruling would impose a host of administrative headaches and the court agreed.

“It shouldn’t be an administrative headache to not fine or prosecute a homeowner who wants to exercise their right to rent their property,” said Institute for Justice Attorney Ari Bargil. “It is unfortunate and frustrating that the city refuses to accept that its law was illegal, but we won a decisive victory on Tuesday and we’re confident that the appeals court will agree and put an end to Wilmington’s illegal law once and for all.”

The Institute for Justice (“IJ”) represents Peg and David Schroeder in their challenge against the city’s ordinance that established a lottery system for vacation rentals in Wilmington. The Schroeders lost their right to rent their property when the lottery awarded that right to one of their neighbors. Under the ordinance, two property owners within 400 feet of one another could not both rent at the same time. The Schroeders challenged the city’s ordinance, arguing that it was unconstitutional and violated state law. On Tuesday, Judge Harrell entered an order siding with the Schroeders and finding that state law preempted the city’s ordinance.

“It is terribly unfortunate for all of the people who were so relieved to learn on Wednesday they could again resume earning income from their vacation rentals only to learn a day later that they had again been deprived of that right,” said Peg Schroeder. “We are hopeful that the city will use this time efficiently to restore citizens’ rights. If not, we will not give up.”

“Obtaining a stay pending appeal is fairly commonplace in cases like this,” continued Bargil. “As frustrating as it is that the city refuses to recognize that it was breaking the law, we will continue to standby the Schroeders and all of Wilmington’s homeowners until this ordinance is invalidated.”

Police Used an Unconstitutional Law to Arrest a Citizen-Journalist, and a Texas Court Let Them Off the Hook

Arlington, Va.—Police officers swear to uphold the U.S. Constitution, but can they be held accountable when they blatantly violate that oath? The 5th U.S. Circuit Court of Appeals will soon consider whether a citizen-journalist in Texas can seek justice after a retaliatory arrest and prosecution. The Institute for Justice (IJ), as part of its recently launched Project on Immunity and Accountability, has filed an amicus brief in Villarreal v. Laredo urging the court to hold officers responsible for violating First Amendment rights.

Since 2015, Priscilla Villarreal has operated as a one-woman news outlet. She cruises around her hometown of Laredo, Texas in her blue pick-up truck, seeking out crime scenes, traffic accidents, and immigration raids. Once she arrives, she livestreams the events to her Facebook page as they unfold, along with commentary that is sometimes critical of local law enforcement. She calls herself “Lagordiloca,” an endearing term that means “the big crazy lady” in Spanish, and she is arguably the most high-profile journalist on the streets of Laredo.

But though she is something of a folk hero in Laredo, her criticisms made her unpopular with the police. They began harassing and intimidating her, and ultimately issued a warrant for her arrest based on an obscure state law against “misuse of official information.” Essentially, they twisted the law to criminalize Villarreal’s routine newsgathering techniques. They cited two instances where she had asked a police officer to confirm information that she had already collected on her own. Pulitzer Prize-winning reporters do the same thing every day.

The law is rarely used to prosecute anyone and a judge tossed her criminal case three months later, ruling that the law was unconstitutionally vague.

But when Villarreal filed a civil lawsuit to remedy the retaliatory, premeditated violations of her constitutional rights, the federal trial court ruled against her relying on a doctrine called “qualified immunity.” Even though the law the police used to arrest her was clearly unconstitutional, the court let the officers off the hook.

Qualified immunity is a judge-made rule, invented by the Supreme Court in 1982. The doctrine shields bad actors from personal responsibility by holding government officials liable only if their specific actions had already been held unconstitutional in an earlier court case.

“Proponents of qualified immunity defend the doctrine by arguing that second-guessing police could have a chilling effect, causing officers to hesitate in life-or-death situations. But that reasoning, although dubious, doesn’t apply here,” said IJ constitutional law fellow Caroline Grace Brothers. “This was not a split-second decision. This was planned. Laredo law enforcement specifically targeted Villarreal for retaliation.”

Throughout the 19th and early 20th centuries, before the doctrine of qualified immunity was created, courts held government officials liable for violating constitutional rights, even when they were enforcing an unconstitutional law. Today, many federal appellate courts have embraced an exception to modern qualified immunity doctrine that echoes that historical rule: if a law is patently unconstitutional, then government officials are not entitled to qualified immunity for enforcing that law.

“No government official should need a federal court to tell them that arresting someone for asking a police officer to corroborate newsworthy information violates the First Amendment,” said IJ attorney Jaba Tsitsuashvili. “If ignorance of the law is no excuse for ordinary people, then officers of the law should be held accountable for violating basic constitutional principles.”

In addition to letting the police violate Villarreal’s constitutional rights without consequences, the trial court’s holding also rested on the premise that if a person asks for and receives newsworthy information from a government official who is not the government’s designated spokesperson, she can be arrested and prosecuted—even if the only thing she did was ask for and receive facts.

“That reasoning is dangerous to a free society because it permits the government to make itself the gatekeeper and arbiter of newsworthiness,” said IJ attorney Anya Bidwell. “It threatens to chill core First Amendment activity and make us all less knowledgeable about government actions. In the brief we filed today, IJ urges the Court of Appeals to repudiate that holding.”

The Institute for Justice’s Project on Immunity and Accountability is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, the government must follow the Constitution. In addition to filing amicus briefs, like this one, IJ has also filed petitions with the Supreme Court on behalf of Americans whose rights were violated by police but were barred from seeking redress due to governmental immunity. One of those cases, Brownback v. King, is scheduled for oral argument in November.

IJ Will Appeal Texas Border Forfeiture Case to U.S. Supreme Court

Today, a federal appeals court ruled that law enforcement agencies can seize and keep Americans’ cars indefinitely without giving the owners an opportunity to plead their case in front of a judge. The decision from the Fifth Circuit Court of Appeals is a blow to the constitutional rights of car-owners in Texas, Mississippi and Louisiana, including Gerardo Serrano, who brought the case with the help of attorneys at the Institute for Justice.

Gerardo’s case started in 2015, when he was traveling to Mexico to visit family in his brand-new F-250. As he was crossing the border, Customs and Border Protection officers searched his truck, where they found five low-caliber bullets he had forgotten in the bottom of his center console. Calling the bullets “munitions of war,” the agents seized his truck. Five forgotten bullets are all it took for the government to argue that Gerardo was an international arms smuggler, rob him of his property and refuse to take the matter before a judge for years. The truck sat in a government impound lot until 2017, when IJ got involved in Gerardo’s case. In all of that time, Gerardo never had an opportunity to plead his case before a judge.

“When the government takes someone’s property, the owners should have an opportunity to challenge the seizure in court immediately, not wait days, months, or, as in Gerardo’s case, even years for the ability to plead their case in court,” said Anya Bidwell, an attorney at the Institute for Justice, which represents Gerardo. “The Supreme Court has already said that there must be a prompt hearing when you’re arrested. It also requires pre-seizure hearings for real estate. It makes no sense for the Fifth Circuit to hold that a car is somehow different and you are not entitled to quickly see a judge and contest its seizure.”

While today’s decision is disappointing, Gerardo is not done fighting. He and the Institute for Justice will now ask the United States Supreme Court to take up the case. In a similar case, a separate federal appeals court determined that property owners do, in fact, have a right to quickly challenge a seizure in court. Writing for the court, then-Appeals Court Judge Sonia Sotomayor held that these so-called “prompt post-seizure hearings” are required by the Constitution.

“I’m doing this for my children,” said Gerardo about his decision to go to the United States Supreme Court. “No one should have to go through what I’ve gone through. I just wanted to have my day in court, not wait for years to get my truck back. This is America. We’re a country of laws and the government cannot take someone’s property forever just because they want to. That’s what the Constitution says. I just hope the Supreme Court takes up my case.”

“Civil forfeiture often occurs outside the courts, as property owners simply cannot wait months or years to see a judge,” said IJ Senior Attorney Rob Johnson. “The result is