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

Story of Phoenix airport traveler who had $39,500 seized without criminal charges demonstrates what is at stake

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 “1entral 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.”

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(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 4888-4492) 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 Sonya 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 a shadowy system, where government abuses are unseen and unchecked. Our goal in this case is to drag all of those cases out of the shadows and put them before a real judge.”

For more than a decade, IJ has challenged law enforcement officers’ use of civil forfeiture to take and keep Americans’ property. IJ is currently litigating cases challenging the use of civil forfeiture in Texas, Pennsylvania, South Carolina, and Indiana, where it secured a unanimous Supreme Court decision forcing states to abide by the Bill of Rights protection against levying excessive fines.

Judge Rules Wilmington’s Vacation Rental Law Is Illegal

Wilmington, N.C.—Today, North Carolina Superior Court Judge Richard K. Harrell ruled that Wilmington’s vacation rental law violates a North Carolina statewide law prohibiting municipalities from requiring rental permits. The decision is a win for Peg and David Schroeder, who filed the lawsuit challenging Wilmington’s ordinance imposing a 2% overall cap on vacation-rental properties and requiring a 400-foot separation between vacation rentals. To decide who could rent their properties under these restrictions, the city forced property owners to enter into a lottery that raffled off the owners’ lifetime right to rent. The winners were able to rent their properties, while the losers—including the Schroeders—were stripped of their right to do so—even if they had been renting their properties without incident for years.

“Today’s decision marks an important victory for property owners and property rights in North Carolina,” said Ari Bargil, an attorney at the Institute for Justice (IJ), which represents the Schroeders. “The decision makes it crystal clear that North Carolina cities cannot impose unnecessary permitting or registration requirements on vacation rentals.”

For the Schroeders, the decision means that they will be able to keep the property they purchased in part because they wanted to offer it as a vacation rental.

“What a relief,” said David Schroeder. “We bought our home with the intent of occasionally renting it. When we lost the lottery, our only remaining options were to sell our home or file a lawsuit. We sued because we knew that Wilmington’s law was clearly illegal.”

“We lived our entire adult lives in Wilmington before retiring to the mountains,” said Peg Schroeder. “We built businesses here, and raised our kids here, and we bought this house in Wilmington because we wanted to maintain roots here. But we could not afford a second home unless we would be able to rent it when we’re not using it. If not for this decision, we would have had to sell our house.”

In recent years, cities nationwide have tried to confront the issue of how to regulate vacation-rentals. In response, the North Carolina General Assembly passed a law providing that cities could require permits or registrations from owners whose properties proved problematic in some way. Everyone else, the General Assembly instructed, should be left alone.

“We were very conscientious about how we rented and who we rented to,” continued David Schroeder. “We only rented to mature adults, we didn’t allow more than four people at a time, and we had the consent of our neighbors. As a result, we never had a complaint. There was no reason for the city to take away our right to rent out our very own property.”

“According to the trial court’s ruling, the city exceeded the scope of its authority by requiring registration with the city before anyone could offer their property as a vacation rental,” said IJ Constitutional Law Fellow Adam Griffin. “This ruling affirms that there is a check on local governments that stops them from imposing onerous regulations on law-abiding property owners like the Schroeders.”

New Lawsuit Challenges Unconstitutional Oklahoma Labeling Law that Tries to Herd Vegan Food Companies Out of the State

OKLAHOMA CITY—All of the food Upton’s Naturals sells is proudly labeled as “100% vegan.” Even though it is already obvious that Upton’s Natural’s foods do not contain meat, a new law in Oklahoma demands that the company include a disclaimer on its label as large and prominent as the product’s name stating that the food is plant-based. But such required disclaimers are typically reserved for potentially harmful products such as cigarettes and alcohol, not completely healthy and safe vegan products.

Oklahoma’s law has nothing to do with health and safety and everything to do with protecting the meat industry from competition. A small company like Upton’s Naturals can’t afford to change its labels to satisfy their competitors’ demands, and they shouldn’t have to because their labels are speech protected by the U.S. Constitution. Today, Upton’s Naturals and the Plant Based Foods Association (PBFA) teamed up with the Institute for Justice (IJ) to file a federal lawsuit challenging the law as a violation of the First Amendment.

“Oklahoma is treating safe and healthy plant-based meat alternatives like they are cigarettes,” said IJ Attorney Milad Emam. “This new law won’t tell consumers anything they don’t already know, but it will have a devastating effect on vegan and vegetarian food companies, since their perfectly honest and understandable labels will now be illegal in Oklahoma. This law, which was passed to prevent competition with the meat industry, clearly violates the First Amendment.”

Upton’s Naturals, of Chicago, Illinois, is a small, independently owned producer of vegan foods founded by Daniel Staackmann in 2006. The company is focused on meat alternatives using innovative ingredients such as wheat-based seitan and jackfruit. Upton’s Naturals sells its foods across the United States and around the world. Its vegan chorizo seitan, vegan mac and cheese and other foods can be found on shelves at Whole Foods in Oklahoma City and other grocery stores across the state. Upton’s Naturals is also a founding board member of PBFA.

“Our labels are perfectly clear that our food is 100% vegan,” said Staackmann. “But now our meat industry competitors in Oklahoma want to force us to redesign our labels as if our safe, healthy products were potentially harmful. It’s not the first time we’ve had to fight a state law created by our competitors, and we look forward again to defending our First Amendment right to clearly communicate with our customers.”

The Plant Based Foods Association is the nation’s only membership association for plant-based food companies. PBFA has more than 150 companies that make a variety of plant-based alternatives, including meat alternatives, a category that is fast growing in retail stores and restaurants.

“The plant-based meat category is on fire right now, with consumers demanding healthier and more sustainable options as alternatives to animal products,” said Michele Simon, PBFA’s executive director. “Oklahoma’s law, along with similar laws in several other states, is the meat lobby’s anti-competitive response to the increased consumer demand for plant-based options. Whatever happened to free-market competition? We are proud to stand with Upton’s Naturals and the Institute for Justice to protect PBFA members’ First Amendment rights to clearly communicate to consumers.”

The Oklahoma Meat Consumer Protection Act, which takes effect on November 1, 2020, was drafted by the Oklahoma Cattlemen’s Association and introduced in the Oklahoma Legislature by one of the association’s cattle ranchers. While other states such as Mississippi, Missouri and Arkansas have sought to make it illegal for vegan foods to use terms such as “burgers” or “bacon,” the Oklahoma law attempts to make current labels illegal by micromanaging their content in a manner not seen anywhere else in the nation: Requiring font size as large as the product’s name for qualifying terms such as “vegan” or “plant-based.”

“Oklahoma already had a law prohibiting misleading labels,” said IJ Senior Attorney Justin Pearson. “But since the meat industry couldn’t use that law to thwart honest competition, they encouraged the Legislature to pass a new law. The First Amendment does not allow the government to compel speech just to protect special interest groups from competition.”

Upton’s Naturals and PBFA previously teamed up with IJ to challenge the 2019 Mississippi law that made it a crime for plant-based foods to use common meat terms on their labels. Shortly after their federal lawsuit was filed, the Mississippi Department of Agriculture completely reversed itself and proposed a new regulation that allowed plant-based foods to continue using their honest labels. Legal challenges to the laws in Missouri and Arkansas continue to be litigated in federal court.

Today’s case is part of IJ’s National Food Freedom Initiative. This nationwide campaign brings property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. IJ previously successfully fought a state labeling law in Florida, which required producers of all-natural skim milk to label their product “imitation skim milk” because it did not contain artificial vitamin additives. Following a later challenge by a Maryland farmer to a similar FDA rule, the FDA agreed not to enforce its regulation against any dairy farmers and will no longer require states to enforce the regulation either.

Case Appealed to U.S. Supreme Court Asks: Can the 9th Circuit Gut a Right and the Constitutional Clause that Protects It?

Arlington, Virginia—Jim and Cliff Courtney have spent 23 years trying to travel 55 miles by boat—and they have yet to reach their destination. With the petition they filed yesterday asking the U.S. Supreme Court to review their case, the brothers hope their next stop will be before the nation’s High Court.

Since 1997, the brothers from Washington state have been fighting for their right to use the nation’s waters in pursuit of a livelihood. But rather than allow Jim and Cliff to pursue a living on the 55-mile-long Lake Chelan in the northern Cascades, the State of Washington has instead used a century-old public ferry licensing law to prevent them from even shuttling customers of their family’s own businesses at the far end of the lake. The Courtneys challenged the state’s bar on their use of Lake Chelan, and after nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. But now the Courtneys are teaming with the Institute for Justice to ask the U.S. Supreme Court to review that decision.

Jim and Cliff’s case hinges on the interpretation of a constitutional provision and a landmark precedent that are well-known to constitutional scholars: the Privileges or Immunities Clause of the Constitution’s 14th Amendment and the Slaughter-House Cases, an 1873 decision in which the U.S. Supreme Court upheld the power of states to create monopolies in certain industries. But, interestingly, in that case, the justices held that among the rights (known then as “privileges or immunities”) that states have to respect is the “right to use the navigable waters of the United States”—the very right at the heart of Jim and Cliff’s case and their private boat service.

According to the State of Washington and the 9th Circuit, however, that right is essentially meaningless. Washington has applied its so-called “public convenience and necessity” requirement to block the Courtneys even from shuttling lodging customers to and from Cliff’s own ranch in Stehekin, at the far end of Lake Chelan. (The public convenience and necessity requirement is essentially a trial held by the state licensing board that allows existing service providers to veto potential competitors, saying no new service providers are “necessary”—the equivalent of allowing McDonald’s to veto the building of a Burger King in the same market.)

The 9th Circuit, for its part, upheld Washington’s application of the public and necessity requirement to block Jim and Cliff from operating on the lake. Severely curtailing the scope of the right to use the navigable waters that the Supreme Court recognized in Slaughter-House, the 9th Circuit held that it only protects uses that “involve interstate or foreign commerce”—not “intrastate boat transportation” like 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, it held that the clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.”

“The 9th Circuit’s decision renders meaningless a right that the U.S. Supreme Court has said all Americans possess by virtue of their national citizenship,” said Michael Bindas, senior attorney with the Institute for Justice. “Worse, it flouts the very constitutional provision that protects that right. When the Privileges or Immunities Clause says that ‘No state . . . shall abridge’ rights of national citizenship, it actually means ‘No state’—including one’s own.”

To defend the right of all Americans to use the navigable waters of the United States, and to restore the Privileges or Immunities Clause to its rightful place in protecting the rights of Americans, the Institute for Justice petitioned the U.S. Supreme Court to hear the Courtneys’ case.

 

IJ Continues to Urge Supreme Court: Hold Government Officials Accountable for Violating Constitutional Rights

Arlington, Va.—On October 6 of this year, the U.S. Supreme Court will hear argument over whether officials from the FBI and other government agencies can be held accountable for violating Americans’ constitutional rights. The case, which was originally scheduled to be heard in March, is a unique opportunity for the Court to send a clear message to the FBI and other government agencies that they cannot trample on constitutional rights with impunity.

“It is a bedrock principle of American law that government officials are not above the law,” IJ Attorney Anya Bidwell explained. “In the 19th century, when federal agents violated plaintiffs’ constitutional rights, they could bring a damages claim. To argue that damages are not ‘appropriate relief’ for the violation of individual rights ignores hundreds of years of American legal history.”

In the case of Tanzin v. Tanvir, the FBI approached Muhammad Tanvir in 2007 and asked him to spy on his religious community. When Tanvir declined, the FBI repeatedly questioned him, harassed him, confiscated his passport, and placed him on the No-Fly List. Despite the absence of evidence that he was a threat to air safety, the government kept Tanvir on the list for years. His inability to fly during that time cost him his job as a long-haul trucker and prevented him from visiting his family, including his wife, son, and parents, who live abroad.

In 2013, Tanvir and several other men, who were also placed on the No-Fly List by retaliating government officials, filed a lawsuit. The men alleged that their placement on the No-Fly List in retaliation for their refusal to spy on their religious communities burdened their right to freely exercise their religion.

On the eve of an important court hearing, however, the government informed the plaintiffs that they had been removed from the No-Fly List and could once again fly. The government then argued that because the men had been removed from the list (albeit years after the fact) the lawsuit should be dismissed. Although the relevant statute provided the plaintiffs “appropriate relief” for what the government and its officials did, the government argued  that money damages were not “appropriate relief” because somehow there should be a presumption against damages in suits against the government.

“This is ironic,” said IJ Attorney Keith Neely. “Historically, damages have been the go-to remedy for government’s violations of your rights. After all, it is much less intrusive for the courts to order a monetary redress than for the law to change or for the government activity to be halted altogether.”

The trial court agreed and dismissed the case, but the 2nd U.S. Circuit Court of Appeals reversed, holding that “appropriate relief” includes damages against government officials who violate individual rights.

The U.S. Supreme Court initially agreed to hear the case in March, but the Court delayed the argument to October in light of COVID-19.

The technical question in the case is whether an individual whose religious rights have been violated can recover damages from the government officials who violated those rights. But the broader issue is whether government officials can be held accountable at all.

Cases like this one are common, but few litigants have the opportunity to be heard by the U.S. Supreme Court. In June, the Supreme Court declined to hear about a dozen cases presenting questions involving government accountability, prompting Justice Clarence Thomas to write a dissent questioning the validity of one of the legal doctrines currently used to shield government officials: qualified immunity.

To ensure that government officials are held accountable to the Constitution and other laws, the Institute for Justice filed an amicus brief in this case, urging the U.S. Supreme Court to allow damages and explaining the historic role damages play in our constitutional system.

IJ’s involvement is part of its broader Project on Immunity and Accountability, which seeks to make constitutional rights enforceable against the government officials who violate them. As part of that project, IJ has brought suit or filed amicus briefs on behalf of numerous victims of government overreach, including an Idaho woman and a Colorado family whose homes were destroyed by the police, and an unarmed 15-year-old Mexican teenager who was shot and killed by a U.S. Border Patrol agent across the border.

Later this upcoming term, the U.S. Supreme Court will hear another IJ case involving government accountability. In the case of Brownback v. King, undercover state and federal agents mistook a Michigan college student for a wanted fugitive, savagely beating him and choking him unconscious. The government wants the Supreme Court to create a large loophole that would protect government agents from liability for their actions, but IJ stands ready to hold them accountable.

“Since the founding of this country, the role of our courts has been to decide whether a person’s rights were violated and, if so, award appropriate relief, which historically includes money damages,” explained IJ Attorney Patrick Jaicomo. “If the Supreme Court adopts the government’s position, government officials can violate the Constitution without consequence. They are effectively above the law.”

As part of IJ’s new Project on Immunity and Accountability, IJ seeks to ensure that individual rights are not a suggestion and that constitutional promises of property rights, free speech, due process, and other rights are actually enforceable.

Vermont Parents Sue State Over Unconstitutional School Choice Policy

Rutland, VT—Michael and Nancy Valente live in the small town of Mount Holly, Vermont where they are raising their son, Dominic, who is entering the tenth grade. Since Mount Holly is too rural to operate a high school, it instead participates in a state program that gives parents tuition to send students to the school of their choice, public or private. But there is a hitch. The state will not provide the tuition benefit to families who enroll their students in religious schools.

The Valentes are not eligible for the state stipend because Dominic attends Mount St. Joseph Academy, a Catholic school 17 miles from their home. Now, the Valentes and two other Vermont families are teaming up with the Institute for Justice (IJ) to file a lawsuit in federal court arguing that the state’s refusal to provide tuition to families choosing religious schools violates the U.S. Supreme Court’s recent decision holding that excluding religious educational options from educational choice programs violates the Free Exercise Clause of the U.S. Constitution.

“In June, the U.S. Supreme Court made it clear that states cannot exclude religious schools from educational choice programs—that includes Vermont’s town tuitioning program,” said IJ Senior Attorney Tim Keller. “The school the Valentes chose for their son meets every qualification except one—it is religious. According to the U.S. Supreme Court, that’s unconstitutional.”

This summer the U.S. Supreme Court handed down a decision in Espinoza v. Montana Department of Revenue, a case which IJ litigated on behalf of Montana parents. In the Court’s opinion, 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.”

“Vermont has some great public schools, but the ones available to us weren’t a great fit for our son,” said Michael Valente. “And I know we are not alone. Families across the state send their kids to private religious schools for a variety of reasons. The state should not discriminate against those families for doing what’s best for their kids.”

In Vermont, the state allows rural school districts that lack public schools for any grade level to pay students’ tuition at public or private schools of the parents’ choice. Over 80 Vermont towns participate in the program for at least some grade levels. But the state policy prohibits those school districts from paying tuition on behalf of families who choose otherwise qualified religious schools. Despite the recent Supreme Court decision, the Valentes’ school district has told them that the state continues to discriminate against private religious schools.

“States have to follow the U.S. Supreme Court’s lead and strike down the restrictions on the tuitioning program,” said IJ Attorney David Hodges. “Vermont is not the only state to exclude religious schools and the Institute for Justice will ensure that state educational choice programs abide by the Constitution.”

“The U.S. Supreme Court has made clear that states may not exclude religious options from educational choice programs just because of their religious character,” Keller added. “The guarantees of the U.S. Constitution apply to citizens in every state, and that includes Vermont.”

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 and New Hampshire’s town tuitioning programs. 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.

Sierra Vista Council Agrees to Let RV Owners Keep Their Homes in Place

Sierra Vista, Ariz.—Sierra Vista residents living in RVs in the Cloud 9 mobile home park will be allowed to keep their homes in place according to a letter from the city attorney sent late yesterday. Attorneys at the Institute for Justice (IJ), who were prepared to sue the city on behalf of the residents, were informed that the city intends to suspend enforcement of orders it sent demanding that owners move their RVs. The orders will remain suspended as the Sierra Vista Planning and Zoning Commission explores amendments to the city code that could allow the homes to permanently remain in place.

“It is a huge relief to property owners and tenants that they will not be forced to move their homes,” said IJ Senior Attorney Erica Smith. “The city’s attempt to kick people off their property was unjust and unconstitutional. The RVs in question were some of the most well-kept homes in the subdivision and we hope that the Zoning Commission does the sensible thing and allows them to stay permanently. If not, we’ll stand with the residents and protect their rights in court.”

Several residents living in RVs received a notice from the city in late July telling them they had to move within 30 days. After being contacted by residents, IJ wrote a letter to the city informing it that its actions were likely unconstitutional. Last week, IJ followed up with a second letter  informing the city that it would sue on behalf of residents if the city did not withdraw its removal orders. IJ will continue to monitor the city’s actions to ensure that residents’ rights are protected.

“This is such a relief.  This has been such a worry, and it feels really good knowing I can stay here for now,” said Georgia Myers, who is 72 and who has rented the land her RV sits on for six years. “I am overjoyed.” Georgia lives in her RV with her husband Randy, who is 73 and suffers from serious health problems. They cannot afford to live anywhere else.

“I’m grateful that I won’t be forced to move now, but this has been a very stressful time for me and my neighbors,” said Amanda Root, who has owned her property for 20 years and has lived in an RV for three years after her manufactured home burnt down. “I hope the Zoning Commission acts quickly to clear the way for me to live in peace. I simply can’t afford to move and if the city kicks me off my property, I would be homeless.”

The city claims that it worked “extensively” with Amanda three years ago to find a manufactured home for her. But Amanda says that all the city did was give her a couple of phone numbers for manufactured homes that she could not afford. This week, the city offered Amanda a manufactured home for free, but Amanda visited the home to find that it was not livable and would likely take thousands of dollars to fix. Amanda cannot afford to fix the home and wants to stay in her current home, which she loves. “It felt like a slap in the face. It feels like the city is just trying to make itself look good in the news without actually helping.”

She continued, “Me and all the other people living in RVs have beautiful homes. We don’t want to move. We love where we are at now.”

Virginia House Revives, Passes Landmark Bill Against Qualified Immunity

In a stunning revival, on Monday, the House of Delegates reconsidered and approved HB 5013, a bill that would let individuals sue law enforcement officers for violating their rights and eliminate “qualified immunity” as a legal defense. HB 5013, which died twice last week–first in committee and then on the House floor–will now head to the Senate, where a similar bill has already been rejected.  

Created by the Supreme Court in 1982, 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. 

“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 Patrick Jaicomo, 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.”

Long an obscure legal rule, qualified immunity—and calls for its removal or reform—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. On the federal level, the House of Representatives passed the George Floyd Justice in Policing Act which would end qualified immunity for federal, state, and local law enforcement officers nationwide; Virginia Sens. Mark Warner and Tim Kaine have co-sponsored the Senate version of the bill. 

“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, in courts and legislatures across the country, to ensure that they are.”

Can States Force Charities to Disclose Their Donors Thereby Exposing Them to Harassment?

Arlington, Va.—This term, the U.S. Supreme Court has an opportunity to hear a First Amendment case with profound implications for nonprofit groups throughout the country. The case, Americans for Prosperity Foundation v. Becerra (No. 19-251), concerns whether the California Attorney General can force nonprofit groups to reveal the names of their donors as a condition of raising money in the state. The 9th U.S. Circuit Court of Appeals upheld the disclosure requirement in September 2018.

The Institute for Justice (IJ), a nonprofit, public-interest law firm that litigates nationwide in defense of First Amendment rights, has filed a friend-of-the-court brief urging the Supreme Court to hear the case.

Under California law, charities that solicit tax-deductible contributions in the state must file an annual copy of IRS Form 990 with the California Attorney General. This filing must also include the charity’s Schedule B, an IRS form that lists the names and addresses of donors who give more than $5,000 in one year to the charity.

For more than a decade, Americans for Prosperity Foundation (AFP) was permitted to solicit contributions in California without filing a Schedule B. But in 2013, California’s Attorney General declared that AFP’s 2011 filing was incomplete. AFP filed a federal First Amendment lawsuit to protect its First Amendment right to raise charitable contributions while protecting its donors’ privacy.

IJ Senior Attorney Paul Sherman said, “The Supreme Court has recognized for decades that charitable solicitation is core First Amendment activity, and that charities have a strong interest in protecting their donors from compelled disclosure of their names and addresses.”

“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 will be debated before the U.S. Supreme Court in Americans for Prosperity v. Becerra.”

Although California is one of only three states—along with Florida and New York—that requires charities to disclose their donors’ identities, the 9th Circuit upheld the disclosure requirement as necessary to enforce the state’s charitable solicitation laws.

Sherman said, “The 9th Circuit’s ruling is wrong and dangerous. AFP’s founders have received death threats because of their political advocacy, and the State of California has never explained why it needs to know the names and addresses of AFP’s donors, when 47 states enforce their charitable solicitation laws without that information.”

“Charities should not have to show that their donors have been subject to the terroristic threats the NAACP suffered in the 1950s before they will be allowed to keep their donor lists private,” Sherman said. “By that time, the harm to private speech and association has already been done. But that is the standard the 9th Circuit’s ruling forces charities to meet if they want to protect their donors’ privacy.”

Sherman added, “This ruling sets a dangerous precedent. 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.”

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.

Class Action Scores First Round Win in Lawsuit Challenging New Orleans Ankle Monitoring Company

New Orleans, La.—This afternoon, Judge Carl J. Barbier of the United States District Court for the Eastern District of Louisiana denied a motion to dismiss a class action lawsuit against an ankle monitoring company, ETOH Monitoring, LLC (ETOH), for violating New Orleans defendants’ right to neutral adjudication.

In May, former New Orleans Criminal District Court defendants Marshall Sookram and Hakeem Meade partnered with the Institute for Justice (IJ) to challenge ETOH and Judge Paul A. Bonin for violating their constitutional rights by ordering them to pay for expensive pretrial ankle monitoring while unaware that Judge Bonin and ETOH shared a personal, political, and financial relationship: both of ETOH’s executives—one of whom is Judge Bonin’s former law partner—had together contributed over $9,600 to Judge Bonin’s judicial election campaigns and had even loaned money to the judge’s campaign.

In Judge Barbier’s ruling, he rejected ETOH’s argument that the company could not be subject to a civil rights lawsuit because it was a private entity. The judge found that ETOH was subject to civil rights laws because ankle monitoring is a government function that would be illegal if anyone were to perform it without the government’s authorization. This means that the federal court will consider whether the defendants appearing before Judge Bonin were deprived of the federal right to a fair and objective decision-maker. This is a win for New Orleanians and the Constitution.

“Today’s decision means that the case against ETOH will go forward and that our clients will be able to obtain evidence regarding the extent to which the connections between Judge Bonin and ETOH affected his judicial decision-making,” said Bill Maurer, a Senior Attorney with IJ. “With the numbers of private actors wielding government power in the criminal justice system increasing, it is imperative that they are held to the same level of objectivity and lack of bias as government actors.”

In August, Judge Bonin was dropped from the lawsuit following his announcement that he would be stepping down from the criminal court when his current term ends in December 2020. However, anyone who was subjected to Bonin’s unconstitutional practices between now and the end of his term remains covered by the class action lawsuit and is encouraged to reach out to the Institute for Justice.

“The legal system is supposed to function solely on objectivity and the interests of justice,” said IJ Attorney Jaba Tsitsuashvili. “Today’s ruling reminds private companies that they will face constitutional scrutiny under the Fourteenth Amendment if they exercise government functions not to serve the public, but to increase their revenue. This is especially crucial with the increasing use of ankle monitoring through private companies as an alternative to incarceration during the Covid-19 pandemic.”

The next step in the case will be for the plaintiffs to ask the federal district court to certify the case as a class action.

Virginia House Rejects Pathfinding Bill Against Qualified Immunity

On Friday, the Virginia House of Delegates narrowly rejected a bill that would have created a new way for individuals to sue, in state court, law enforcement officers who had violated their rights. Initially introduced by Del. Jeffrey Bourne, HB 5013 would have blocked officers from invoking “qualified immunity” as a 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. 

“Virginia’s failure to rectify qualified immunity is a disappointing blow that prevents victims from vindicating their constitutional rights,” said Institute for Justice Attorney Patrick Jaicomo, who submitted testimony in favor of the bill. “Any police reform bill is only meaningful if it includes reform to qualified immunity. Virginia just squandered a historic opportunity to end this injustice.”

Long an obscure legal rule, qualified immunity—and calls for its removal or reform—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. On the federal level, the House of Representatives passed the George Floyd Justice in Policing Act which would end qualified immunity for federal, state, and local law enforcement officers nationwide; Virginia Sens. Mark Warner and Tim Kaine have co-sponsored the Senate version of the bill. 

Meanwhile, the U.S. Supreme Court refused to hear eight separate cases that involved qualified immunity. Justice Clarence Thomas was the only justice who dissented from this refusal, writing that he has “strong doubts” about the doctrine.

“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.”

Victory for Food Trucks in Door County

Sturgeon Bay, Wis.—Yesterday afternoon, Judge Todd Ehlers of the Door County Circuit Court struck down the Town of Gibraltar’s vending ordinances as unconstitutional. When White Cottage Red Door owners Chris Hadraba, Jessica Hadraba, Lisa Howard, and Kevin Howard opened a food truck on their store’s parking lot in 2017, town officials launched a campaign to close them down. Ultimately, Gibraltar banned food trucks entirely in 2018. And once the Hadrabas and Howards teamed up with the Institute for Justice (IJ) to challenge the ban in state court, the town quickly tried to cover its tracks, replacing its total ban in 2019 with a new ordinance prohibiting food trucks from areas where brick-and-mortar restaurants operate. Even in the small pockets of town outside these areas, the new ordinance singled out food trucks for several burdens that do not apply to brick-and-mortar restaurants, like bans on outdoor seating and music.

Judge Ehlers ruled that both the 2018 and 2019 ordinances violated the Wisconsin Constitution because they “represented the use of public power to suppress competition from one entity for another special interest’s financial benefit.” According to Judge Ehlers, “both the 2018 Ordinance and the 2019 Ordinance were enacted by the Defendant’s Town Board in an effort to protect brick-and-mortar restaurants in the downtown Fish Creek area from competition from mobile food trucks or establishments.” As such, the ordinances were “nothing less than illegal and unconstitutional economic protectionism.”

That protectionism had a devastating effect on the Hadrabas and Howards’ business. It meant that White Cottage Red Door, a Door County shop known for “everything cherry,” could legally sell cherry pie indoors at its brick-and-mortar store, but not at its truck parked just a few feet away. Even though the truck met all of Wisconsin’s requirements for a safe restaurant—indeed, the state even classified the truck as a “mobile restaurant”—Gibraltar’s ordinances made it impossible for the two families to use their own property to grow their own business. This victory frees White Cottage Red Door to start vending once again, and more broadly protects Wisconsin entrepreneurs from actions by local officials who wish to use their public power to suppress competition for private gain.

“It is not the government’s job to pick winners and losers in the marketplace. Today’s decision striking down Gibraltar’s anticompetitive ordinances is a win for entrepreneurs, consumers and the Wisconsin Constitution,” said IJ Attorney Milad Emam.

“I’m so excited about this victory, which has been years in the making,” stated Chris Hadraba. “All I wanted to do was make burgers and barbecue to feed hungry customers. I’m so glad that the court’s decision to declare Gibraltar’s ordinances unconstitutional lets me do that again.”

“The Wisconsin Constitution forbids politicians from protecting certain preferred businesses from competition,” said Robert Frommer, IJ senior attorney and head of IJ’s National Street Vending Initiative. “But the Constitution is only as good as the judges willing to stand up for it. Judge Ehlers’s engaged opinion cut through the town’s arguments and sought the truth. His analysis is a model to follow for judges throughout Wisconsin.”

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. IJ continues to litigate against unconstitutional vending barriers in South Padre Island, Texas and Fort Pierce, Florida.

Will U.S. Supreme Court Create Large Loophole for Officers and Officials Seeking to Escape Accountability?

Arlington, VirginiaIn a case to be argued November 9, 2020, the U.S. Supreme Court will decide whether to create a huge loophole that would allow law enforcement officers and other government officials who violate the constitutional rights of Americans to escape accountability for their actions. The case pits the U.S. Solicitor General—the federal government’s top appellate lawyer—against attorneys from the Institute for Justice, which represents James King, an innocent college student who was brutally beaten and choked unconscious by plainclothes police.

In 2014, King was walking between two summer jobs when two men in scruffy street clothes stopped him, demanded to know his name, and forcibly took his wallet. James, thinking he was being mugged, did what anyone would do in that circumstance:  He ran. And when the two men caught up with him and beat him mercilessly, James fought for his life to escape before they choked him unconscious.

The two men who attacked James King that summer day were law enforcement officers. They had mistaken James for a nonviolent fugitive they sought (who was wanted for stealing soda cans and liquor from his former boss’s apartment) even though James bore no resemblance whatsoever to the suspect.

After the beating, police and local prosecutors didn’t arrest or charge the officers involved in the unjustified attack. Instead—in the first of many efforts to deny James King his day in court rather than hold the officers to account—the government filed multiple bogus felony charges against James in the hope that he would accept a plea deal, thus undermining any chance he would have to file a civil rights lawsuit against the officers or the government.

But James refused to give in. He turned down the plea deal the government offered, and a jury exonerated James, finding him not guilty on all charges.

Then James sought justice by filing a federal lawsuit.

But figuring out who to sue was complicated. The men who had brutally beaten James were part of a joint federal-state task force comprised of both local police and federal law enforcement officers.  Therefore, as part of the suit, James sought damages from the government under what is known as the Federal Tort Claims Act (FTCA) for harm inflicted by its employees—the officers. He also brought claims against the officers themselves for violating his constitutional rights. The trial court dismissed James’ claim against the government because it said Michigan’s government-immunity rules meant it did not have jurisdiction over the merits of his FTCA claim. The court also granted the officers “qualified immunity”—whereby they couldn’t be held individually liable for violating the Constitution.

On appeal, the 6th U.S. Circuit Court of Appeals reversed the trial court’s qualified immunity ruling and ordered James’ case to return to the trial court where he could collect and present evidence to a jury that the officers violated his constitutional rights.

But instead of returning to the trial court, the government appealed its case to the U.S. Supreme Court and now asserts an argument that would make it much harder for victims like James to hold government officials accountable for violating their constitutional rights. The Solicitor General now argues that because the district court lacked jurisdiction over James’ FTCA claims, James’ constitutional claims—filed as part of the same lawsuit—should also be dismissed.

Institute for Justice Attorney Patrick Jaicomo, who will argue James’ case, said, “The dangerous and ironic thing here is that the FTCA is a law that was supposed to provide a means for Americans to hold their government accountable when government employees violate their rights. Now, the government is trying to weaponize the FTCA and use it to prevent ordinary citizens from ever having their day in court, even for gross constitutional abuses of authority like those James endured.”

IJ Attorney Anya Bidwell, co-counsel in this case, added, “If the Supreme Court rules in favor of the government, it will create an enormous new loophole through which government officials can escape accountability because if someone’s FTCA claims against the government are dismissed at any point in their litigation—even if they are dismissed without consideration of their merits —then, the government argues, the constitutional claims against the individual government officers or officials must be dismissed as well. This goes against basic rules of procedure every law student learns in the first year of law school, yet this is the argument the government insists on making in order to further shield government officials from liability.”

Jaicomo added, “James has been battling for six years just to get his day in court. The law is supposed to give everyone a fair chance to make their case in court, but the government is asking the Supreme Court to take that chance away from James. The Court should strongly reject that request.”

James continues to suffer not only because of the attack on him but also because of the ensuing trumped-up felony charges brought against him.

“I still suffer to this day for what the officers did to me and also because of what the government did afterward to protect those officers from justice,” James said. “I had to drop out of college. I have panic attacks whenever I see a police officer, which I never had before. I have nightmares and trouble sleeping. And now, years later, I find it hard to improve my employment prospects and likewise on the social level because people will Google me and see I was charged with multiple felonies. It takes a lot of explaining to convince them I was totally innocent.”

“The government is asking the Court to provide another shell for its shell game that would make it harder for plaintiffs to bring claims against government officers and easier for officials to avoid accountability for their constitutional violations,” said Scott Bullock, president and general counsel at the Institute for Justice, which is representing James as part of its newly launched Project on Immunity and Accountability. “IJ will continue to do everything in our power to ensure there is justice for James King and all those who have suffered at the hands of rogue government officials who abuse our constitutional rights.”

Bullock concluded, “America is coming to realize that law-enforcement misconduct, on both state and federal levels, is a serious problem. And while Americans will have different views about how to address that problem, we should all be able to agree that the first step is making sure that officers who violate constitutional rights should be held accountable.”

New Hampshire Grandparents Sue State Over Unconstitutional Restriction on School “Tuitioning” Program

Concord, N.H.—Dennis and Cathy Griffin live in the small town of Croydon, New Hampshire and are raising their grandson Clayton, who is entering the seventh grade. Because Croydon is so small, it does not operate a middle school and instead pays students’ tuition at nearby private or public schools. But the Griffins are not eligible for that assistance, because the school they selected for their grandson is “sectarian” and the state prohibits so-called “tuitioning towns” from paying tuition to religious schools. Now, the Griffins are teaming up with the Institute for Justice (IJ) to sue in state court, claiming that the ban on religious options in the school choice program violates a recent U.S. Supreme Court decision.

“Earlier this summer, the U.S. Supreme Court made it clear that states cannot exclude religious schools from school choice programs—that includes New Hampshire’s town tuitioning program,” said IJ Senior Attorney Tim Keller. “The school the Griffins have chosen for their grandson is qualified to receive funds in every way except that it is religious. Under the recent precedent, that is a clear violation of the First Amendment.”

In June, the U.S. Supreme Court handed down a decision in Espinoza v. Montana Department of Revenue, a case which IJ litigated on behalf of a Montana mother. In the opinion, 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.” This lawsuit is the first educational choice case launched by IJ since that decision.

“We’ve chosen what we believe is the best school for our grandson,” said Dennis Griffin. “It’s not fair that we can’t receive the same support that other families in the town receive just because his school is religious. We hope that New Hampshire courts will follow the direction of the U.S. Supreme Court.”

In New Hampshire, towns that lack public schools for any grade level are permitted by statute to pay students’ tuition at public or private schools of the parents’ choice. However, a state law prohibits those towns from paying tuition on behalf of families who choose otherwise qualified religious schools.

Croydon operates a public school for children from kindergarten to fourth grade, after which time families can choose to use tuitioning dollars at area public and private schools.

In Espinoza v. Montana Department of Revenue the Court overruled the Montana Supreme Court’s decision striking down a tax-credit scholarship program. The state high court had ruled that the program—which enabled low-income families to send their children to private schools, including religious schools—violated the state constitution’s prohibition on directing state funds to “sectarian” schools. The U.S. Supreme Court found this state constitutional provision violated the First Amendment’s Free Exercise Clause because it impermissibly discriminated against religious schools.

“States have to follow the U.S. Supreme Court’s lead and strike down the restrictions on the tuitioning program,” said IJ Attorney Kirby West. “New Hampshire is not the only state to exclude religious options and the Institute for Justice will ensure that the Constitution is followed in every state that has established a school choice program.”

IJ, 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 school choice on behalf of parents in defense of Cleveland, Ohio’s and Arizona’s school choice programs.

After Homeowners Threaten Lawsuit, Seattle Backs Down From ‘Housing Affordability’ Fees

Almost two years ago, Andre and Erika Cherry bought their first home together. The home was a modest two-bedroom fixer-upper built in 1916. After a century of wear and tear, the home showed its age and needed a top-to-bottom renovation—but the Cherrys were up for the challenge. They had always dreamed of owning a home together, and this was a home within their budget.

Unfortunately, the Cherrys’ dream quickly turned into a nightmare when the Seattle Department of Construction & Inspections (SDCI) informed them that they needed to pay a whopping $11,000 fee in order to get a building permit to do the renovation. This fee was part of Seattle’s wildly inaccurately named “Mandatory Housing Affordability Law” (MHA).

According to the city, the Cherrys’ home renovation was creating a “new structure” because they were changing the exterior of their home “too much.” For more than a year, the Cherrys tried to adjust their plans and plead their case with the city to show that MHA did not apply to their home renovation and that the city’s demands made no sense.

Eventually, the Cherrys found the Institute for Justice (IJ). IJ wrote a letter to the city demanding it give the Cherrys their permit without the additional MHA fees and requirements. That letter explained, as the Cherrys had, that MHA did not apply to their home renovation and that the city’s demands made no sense. Moreover, IJ noted, SDCI’s $11,000 demand violated the Cherrys’ constitutional rights.

Three weeks later, the city relented without explanation. All they said was “SDCI is dropping the MHA requirement for this project, and the applicant contact has been informed.” The permit was issued today.

Although the Cherrys can now get their permit, Seattle’s threats have already taken their toll. The delay cost the Cherrys thousands of dollars, and it will continue to cost them thousands more.

“The amount of emotional and financial stress this ordeal has caused is immeasurable,” said homeowner Erika Cherry. “Seattle turned our dream of home ownership into a nightmare. Even though we can get our permit now, we should have gotten it more than a year ago. We had rental and storage costs while we waited for the permit and we still have them now. It is very frustrating that we had to get lawyers involved just to get our permit.”

“The government should not be coercing people to pay thousands of dollars in unrelated fees just so they can renovate their home,” explained William Maurer, Managing Attorney of the Institute for Justice’s Washington Office. “The MHA operates on the bizarre assumption that forcing people to pay exorbitant fees will somehow make housing more affordable. After news of our letter to SDCI broke, we were contacted by numerous people who had been subjected to these and other similar massive permit fees. It is sadly clear that many local governments in Washington are treating homeowners like ATMs.”

The Cherrys are not alone in fighting for their rights. Will you help the Institute for Justice fight for the Cherrys’ rights and others like them by making a tax-deductible contribution today?

Minnesota Wine Makers Win Right to Use Out-of-State Grapes

Minneapolis, Minn.—In a major victory for winemakers nationwide, yesterday afternoon a federal judge struck down a Minnesota law that prohibits wineries from making wine unless a majority of the grapes are grown in Minnesota—a restriction put in place to protect the state’s grape industry from economic competition. Minnesota’s law, versions of which are enforced in over a dozen other states, makes it difficult—if not nearly impossible—for Minnesota’s burgeoning wine industry to make wines that consumers are accustomed to drinking.

“This is a huge win for the future of the wine industry and small wineries in Minnesota,” said Nan Bailly, owner of Alexis Bailly Vineyard. “We are finally free to make the wines we want to make, not the wine dictated by the state legislature.”

The victory is the first ruling to find a law like this unconstitutional. Given the number of states that use the same protectionist barriers, it has major implications across the country. Those states—including New York, Pennsylvania, Illinois and others—may now have to face similar challenges to the one here. And given how clear the Minnesota judge’s ruling was, those states will be hard-pressed to continue justifying their restrictions on free trade in wine products.

Most wines Americans are accustomed to drinking are made with grapes that struggle in Minnesota’s cold climate. Northern grape varieties, which can grow with some difficulty in Minnesota, often produce wine that is too acidic for most consumers. To make a Minnesota wine palatable, most wineries blend Minnesota grapes with grapes grown elsewhere to create a wine that is essentially Minnesotan but more appealing to a traditional palate. The state’s law mandating that Minnesota grapes constitute the majority of a farm winery’s final product therefore handicaps vintners. As a result, the government’s in-state grape requirement restricts farm wineries from producing the broad variety of wines that consumers want—even though these wines would be legal to sell at a wine or liquor store if made out of state.

By contrast, Minnesota’s biggest craft beer breweries, like Summit and Surly Brewing, are among the most successful in the country, thanks in part to a variety of hops grown in the Pacific Northwest that flavor their signature beers. If Minnesota breweries were instead forced to use hops mostly grown in Minnesota, many of their popular products would become difficult, if not impossible, to offer.

“The U.S. Constitution was crafted to guarantee free trade among the states,” said Institute for Justice (IJ) Senior Attorney Anthony Sanders. “Minnesota violated this founding ideal by restricting the grapes that wineries can purchase from other states. This is a vindication of our client’s rights and also of that founding ideal of free trade.”

In yesterday’s ruling, Judge Wilhelmina Wright found the law violates the U.S. Constitution’s Interstate Commerce Clause. In 2017, Minnesota wineries Alexis Bailly Vineyard and Next Chapter Winery teamed up with IJ to challenge this barrier to free trade. The judge stated that “the Act’s in-state requirement expressly favors and benefits in-state economic interests” and that “the Act’s in-state requirement is discriminatory on its face.” Because of that discrimination there was a heavy burden on  Minnesota to justify itself, something it didn’t even try to do: “There is no suggestion in the record or the parties’ arguments that the Act’s in-state requirement serves any interest other than favoring Minnesota’s economic interests over similar out-of-state economic interests.”

Jaimie Cavanaugh, another attorney in IJ’s Minnesota office, added, “We are very pleased that the judge saw what is going on in this case: Our clients cannot get a license if they trade more with Wisconsin than Minnesota. But our Constitution says that we are one nation. We just made that principle a little more real in Minnesota.”

Judge Wright relied upon a recent Supreme Court ruling, Tennessee Wine and Spirits Retailers Association v. Tennessee, which struck down a limit on new residents getting liquor store licenses in Tennessee. That was also a case litigated by IJ, which represented a small liquor store owned by Doug and Mary Ketchum. These cases were not the first time IJ fought illegal liquor regulations in court. IJ argued a 2005 case, Granholm v. Heald, that saw the U.S. Supreme Court rule it unconstitutional for states to discriminate against out-of-state wineries in the business of selling wine directly by mail to consumers.

U.S. Supreme Court Asked to Hear Illinois Case That Gives Government Leeway to Punish Speech “of Purely Private Significance”

Arlington, Va.—In recent years, nearly every state in the nation has enacted laws criminalizing nonconsensual pornography—nude or sexually explicit images shared without the subject’s consent. These laws seek to address a real problem. In upholding Illinois’s statute, however, the Illinois Supreme Court in People v. Bethany Austin announced a rule that reaches far beyond intimate photos:  According to a majority of the Illinois court, the government has special latitude to punish any speech “of purely private significance.” The U.S. Supreme Court is scheduled to consider whether to take the case on September 29, 2020.

Austin arises from unusual circumstances. In 2016, Bethany Austin discovered that her fiancé was cheating on her; intimate photos of another woman surfaced on the couple’s shared iPad. Ms. Austin broke off the engagement. And soon after, her now-ex-fiancé allegedly began telling mutual friends that the relationship ended because Ms. Austin was “crazy” and had stopped doing housework. To tell her side of the story, Ms. Austin wrote a four-page letter to a small number of close friends and family. In it, she described what really happened. To prove she wasn’t crazy, she also included printouts of some of the texts and intimate photos.

At the ex-fiancé’s urging, Illinois law enforcement criminally charged Ms. Austin with violating the state’s nonconsensual-pornography law. And on appeal, the Illinois Supreme Court upheld the law on the strength of a sweeping rule:  The government has special leeway to punish speech “of purely private significance.”

If left undisturbed, the Illinois court’s decision would give government officials unprecedented power to criminalize not just nonconsensual pornography, but most of our day-to-day speech. That is why the Institute for Justice (IJ) submitted a friend-of-the-court brief to the U.S. Supreme Court in Ms. Austin’s case. Taking no position on Illinois’s nonconsensual-pornography law, IJ’s brief addresses the implications of the Illinois court’s ruling for speech more broadly. By giving regulators leeway to single out and punish speech of “private significance”—the brief submits—the Illinois Supreme Court watered down First Amendment protections for most of what we say, write, hear, and read.

“For decades, the U.S. Supreme Court has stressed that governments get no latitude to criminalize speech based on value-judgments about the topic’s public or private importance,” said IJ Attorney Sam Gedge. “That was true of lurid magazines in the ’40s, of dial-a-porn in the ’80s, of violent videogames in the 2000s. Whatever power government may have to address nonconsensual pornography, that power cannot be based on an across-the-board rule that devalues speech of ‘private significance.’”

“Much of the Institute for Justice’s free-speech practice centers on protecting individuals’ right to speak about matters that—while important—are of ‘private significance,’” said IJ Attorney Will Aronin. “Our clients give diet advice, tips about animal care, and instruction in horseshoeing. By granting regulators leeway to single out whatever speech can be characterized as private, the Illinois Supreme Court blessed a rule that is as novel as it is dangerous.”

U.S. Supreme Court Case Spotlights Chicago’s Rampant Abuse of Fines & Fees

Arlington, Virginia—On October 13, 2020, the U.S. Supreme Court will consider a case that addresses the intersection of the U.S. Bankruptcy Code and the explosion of municipalities using fines and fees to raise revenue across the nation. The case, Chicago v. Fulton, considers to what extent the Bankruptcy Code protects people who are driven into bankruptcy by court debt from the actions of rapacious municipal governments to collect on that debt.

Under the U.S. Bankruptcy Code, when a debtor files for bankruptcy, that action creates a bankruptcy estate that is made up of the debtor’s property and overseen by the bankruptcy trustee. The filing also creates what is called an “automatic stay” of efforts by creditors to collect on debts owed by the debtor. It also requires any entity that possesses the debtor’s property to turn that property over to the bankruptcy estate. The federal courts are split on whether a creditor may retain that property and force the trustee to file suit to have it returned or whether the creditor must immediately return it as part of the automatic stay.

In the cases before the Court, the City of Chicago, which runs a massive fine and impound program from which it derives roughly 9% of the city’s operating budget, seized the debtors’ cars before bankruptcy and refused to return them after they filed for bankruptcy protection. The 7th U.S. Circuit Court of Appeals concluded that, by retaining the cars, the city was attempting to pressure the debtors to pay off their debt to the city and, as such, the city was violating the automatic stay. The city sought review by the U.S. Supreme Court, which agreed to hear the case.

A philosophically diverse coalition of the groups that work in the fines and fees area filed a friend-of-the-court brief urging the U.S. Supreme Court to affirm the 7th Circuit. The brief—filed by the Institute for Justice, the Roger Baldwin Foundation of the ACLU of Illinois, the Cato Institute, the Fines and Fees Justice Center, the R Street Institute, the Rutherford Institute, and the American Civil Liberties Union Foundation—argued that the purpose of the Bankruptcy Code is to allow debtors a fresh start and that this goal is more important than ever because the rise of civil and criminal fines and fees over the past three decades has forced people into bankruptcy. Fueled by local and state governments’ desire for revenue, the explosion of fines and fees has mired millions of people into an endless spiral of debt. The city’s failure to return the cars it impounded was consistent with the efforts of municipalities across the country to force people who cannot pay their court debt to do so through harsh means, such as impoundment, arrest, and even imprisonment.

“The City of Chicago here is acting directly contrary to the purpose of the Bankruptcy Code,” IJ Senior Attorney Bill Maurer said. “Having access to a car to get to work is essential for a debtor to meet the requirements of their bankruptcy plan and to pull themselves out of debt. Here, the city’s desire for revenue is not just pushing people into bankruptcy, its failure to abide by the automatic stay is helping to keep people in bankruptcy longer than necessary.”

The city’s use of drivers as mobile ATM’s is well-known. Faced with unsustainable budget deficits, the city raised fines and fees for parking, traffic, and ordinance violations, and began aggressively impounding vehicles for unpaid tickets. In all, Chicago residents owe an almost incomprehensible $1.45 billion to the city in unpaid tickets. This has resulted in a tenfold increase in the number of Chapter 13 bankruptcies in the Northern District of Illinois between 2007 and 2017.

“Chicago may try to milk its citizens for revenue using traffic, parking, and ordinance violations,” said Maurer. “It cannot violate the provisions of the Bankruptcy Code designed to protect the very people it has driven into bankruptcy when it does so, however. The U.S. Supreme Court should uphold the 7th Circuit and the intent of the Bankruptcy Code and require Chicago to turnover impounded cars to the bankruptcy estate.”

IJ is also challenging Chicago’s massive and procedurally unfair impound system directly. They represent Chicago area residents in a constitutional challenge to the system. The Illinois trial court recently rejected Chicago’s efforts to dismiss the case.

Tampa Woman Joins Class Action Suit Challenging TSA and DEA Airport Seizures

Tampa, Fla.—Stacy Jones had flown with large amounts of cash occasionally and did not expect it would be a problem when she did so earlier this year. She had been looking forward to a trip to North Carolina to visit a newly reopened casino and set aside money for gaming. She added to that amount of cash when friends she was staying with offered to purchase a car she owned with her husband. But when a close family member passed away, Stacy decided to fly home to Tampa rather than visit the casino. Without concern, she packed the cash in her carry-on bag. Unfortunately, she did not make it home with her money; even though she has done nothing wrong, the federal government is fighting to permanently take what is rightfully hers through civil forfeiture.

When Stacy went through security screening at Wilmington International Airport, Transportation Security Administration (TSA) screeners noticed the cash and held onto her carry-on bag. Sheriff’s deputies and then Drug Enforcement Administration (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 allegations of criminality. Now, Stacy is teaming up with the Institute for Justice, fighting to end these unconstitutional and unlawful practices by the DEA and the TSA.

“Flying with any amount of cash is completely legal, but time and time again government agents treat innocent Americans like criminals,” said IJ Senior Attorney Dan Alban. “DEA should return Stacy’s money immediately. TSA and DEA should also stop seizing money from air travelers simply because they have large amounts of cash.”

In addition to fighting the DEA’s attempt to take her money, Stacy is joining an existing federal class action lawsuit filed earlier this year. The original plaintiffs in that suit are a Pittsburgh retiree, Terry Rolin, and his daughter who lives in Boston, Rebecca Brown. DEA seized Terry’s life savings from Rebecca as she was flying home through the Pittsburgh International Airport. Two months after filing the lawsuit and seven months after the cash was seized, the DEA returned the money without explanation, apology or interest.

Stacy joins Rebecca’s and Terry’s ongoing lawsuit as an additional named plaintiff. The suit 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 cash, which poses no threat to transportation security. Second, the suit claims that TSA violates the Fourth Amendment rights of flyers when it seizes them and their belongings without reasonable suspicion, simply because they are believed to have a “large” amount of cash. 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 have a large amount of cash, and by seizing their money for civil forfeiture without probable cause, based solely on its amount.

“I worked hard for this money and was intending to use it for a down payment on a house,” said Stacy. “It’s wrong that the government treats people like criminals even though they are doing something perfectly legal. It needs to stop.”

Stacy finds herself trapped in 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.

“Terry’s and Rebecca’s case made headlines across the country and even overseas, but that still didn’t stop the TSA and DEA from doing the same thing to Stacy,” said IJ Attorney Jaba Tsitsuashvili. “The government shouldn’t be able to take someone’s savings unless they are convicted of a crime. But because federal law enforcement gets to spend the money it keeps through civil forfeiture, agencies like the DEA are incentivized to take cash without justification. This needs to stop. It’s wrong, and it’s unconstitutional.”

U.S. Supreme Court Asked to Correct Dangerous Vermont Ruling That Guts Property & Other Constitutional Rights

Arlington, Virginia—A person’s home is their castle. Except in Vermont. That is because last year, the Vermont Supreme Court ruled in Vermont v. Bovat that police did not need any warrant or other judicial authorization to wander around people’s yards and garages to search for evidence of a crime. The ruling rests upon the idea that yards, driveways, and garages are merely “semiprivate” areas not entitled to Fourth Amendment protection. The U.S. Supreme Court is currently scheduled to consider whether to take this case on September 29, 2020.

If left intact, the Vermont Supreme Court’s decision would greatly weaken all Americans’ right to be secure in their private property. That is why the Institute for Justice (IJ) submitted a friend-of-the-court brief to the U.S. Supreme Court pointing out how the decision flouts binding Supreme Court precedent making clear that the government must get a warrant when it wants to come onto your property to find evidence of a crime. IJ is asking the U.S. Supreme Court to take up the case, correct the Vermont Supreme Court’s dangerous holding, and tell lower courts to stop trying to chip away at Americans’ Fourth Amendment rights against warrantless searches and seizures.

“The Framers wrote the Fourth Amendment to secure our property and privacy,” explained IJ Senior Attorney Robert Frommer, who heads up IJ’s Fourth Amendment work. “But the Vermont Supreme Court’s decision treats those rights as little more than speed bumps standing in the way of ‘efficient’ law enforcement. The Supreme Court should take up this case, reverse this terrible decision, and instruct lower courts that their job is to stand up for people’s constitutional rights, not to rubberstamp whatever actions the government has taken.”

“The Vermont Supreme Court’s deeply flawed decision is antithetical to judicial engagement,” said Anthony Sanders, IJ senior attorney and head of its Center for Judicial Engagement. “For decades, we have seen courts weaken and even eliminate Americans’ constitutional rights in the name of government efficiency. But that cannot come at the expense of our liberties. All government officials take an oath to uphold the Constitution, and it is incumbent on the courts to make sure they do.”

“The Fourth Amendment protects all of people’s property, and courts should not be in the business of deciding what property is worth protecting,” said Joshua Windham, IJ attorney and lead counsel on Rainwaters v. Tennessee Wildlife Resources Agency, a case challenging Tennessee officials’ warrantless, suspicionless snooping on people’s rural farms. “It is bad enough that the Supreme Court has held that ‘open fields’ get no constitutional protection, but this holding says that even portions of one’s home can be subjected to warrantless searches. We call on the Court to correct this error and instruct lower courts to stop trying to make end runs around people’s constitutional rights.”

“While the Bovat case dealt specifically with a homeowner, it is important to remember that our Fourth Amendment rights extend to renters, as well,” said IJ Litigation Director Dana Berliner. “The Court should ensure that every person’s home—whether they own or rent—is their castle.”

[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.]

Civil Rights Groups Remind Supreme Court: Police Can Violate Constitutional Rights Even If They Don’t Kill or Disable You

Arlington, Virginia—In Torres v. Madrid, the U.S. Supreme Court will decide whether a woman who was shot in the back by plain-clothed police officers (whom she thought were assailants) may bring a Fourth Amendment challenge to the shooting, or whether the Constitution does not apply merely because she was able to drive away immediately after being shot. The Institute for Justice and a coalition of civil liberties and civil rights groups across the philosophical spectrum filed a friend-of-the-court brief urging the Court to hold that death or incapacitation is not a prerequisite to constitutional scrutiny of police officers’ use of force. The groups argue that a contrary holding would have dire consequences for individual liberty and for individuals’ ability to hold police officers accountable for a wide range of violence that exceeds their authority.

The U.S. Supreme Court is scheduled to hear the case on October 14, 2020.

The case arises from a lawsuit brought by Roxanne 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 was able to continue driving and eventually got herself to a hospital.

She later sued the officers, arguing that their barrage of gunfire violated the Fourth Amendment’s prohibition on excessive force. The 10th U.S. Circuit Court of Appeals held that, because the gunshots into her back did not immediately terminate her movement, Torres was never “seized” by the officers’ intentional use of deadly force. Therefore, the lower court held, the Fourth Amendment—which protects against “unreasonable searches and seizures”—was not even applicable. In other words, there could not even be an inquiry into the reasonableness or appropriateness of the officers’ use of deadly force, simply because Torres was not immediately killed or incapacitated by their bullets.

The 10th Circuit’s rule cannot be squared with judges’ basic duty to evaluate the constitutionality of police conduct without creating artificial immunities and other barriers to accountability. So the Institute for Justice joined the ACLU, the ACLU of New Mexico, the Center for Constitutional Rights, the Leadership Conference on Civil and Human Rights, and the National Police Accountability Project to urge the U.S. Supreme Court to reverse this dangerous holding.

The groups’ amicus brief argues that the 10th Circuit’s rule is inconsistent with prior Supreme Court precedent and basic Fourth Amendment principles. It also demonstrates that under the 10th Circuit’s rule, police officers are effectively immunized from constitutional scrutiny and accountability when they use common forms of physical force that may not have the effect of immediately killing or incapacitating their victims—including gunshots, tasers, billy clubs, batons and closed fists. As shown in the brief, that cannot be squared with the text or purpose of the Fourth Amendment, which protects against all unreasonable physical intrusions on bodily autonomy.

[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.]

Institute for Justices Takes on the Fight for Owners’ “Right to Rent” in Wilmington, N.C.

When Peg and David Schroeder decided to retire to the Western Carolina mountains, they knew they didn’t want to leave Wilmington forever, so they made a plan: They’d buy a smaller, more manageable property in Wilmington to serve as a gathering place for friends and family—and when they were not using it, they would offer it as a vacation rental property.

With a plan in hand, the Schroeders found a property, bought it, and began an extensive renovation. They knew that vacation rentals were governed by certain zoning laws, so they consulted an attorney to make sure their home was eligible. Just as they were wrapping up $75,000 in renovations, though, their plan went off the rails. The city passed a highly restrictive cap on the number of vacation rentals permitted to operate in the city.

Under the new ordinance, vacation rentals were limited to no more than two percent of properties and every vacation rental property had to be more than 400 feet from the next closest vacation rental. To decide who got to keep their right to rent and who did not, the city conducted a lottery. The Schroeders applied, but because a neighbor drew a lower number, they lost.

Using a highly controversial land-use tool called “amortization,” the city gave the Schroeders one year to supposedly recoup their entire investment in their property, including the cost of the renovation. After that, they would have to cease renting it.

Living on a fixed income, the Schroeders couldn’t afford to take their property off of the rental market, so they sued the city. The Schroeders’ case caught the attention of attorneys at the Institute for Justice (IJ)—a nonprofit public interest law firm with extensive experience litigating property rights cases across the country—and now, today, IJ is taking over the case.

“Before we bought the property, we did everything right,” said Peg Schroeder. “We had a realtor show us only listings that could be offered as vacation rentals, and before we purchased, we even had an attorney look into the applicable zoning and housing restrictions. It took us eight months and about $75,000 to renovate the home, and just as we put it on the market to rent, the city pulled the rug out from under us.”

The city’s ordinance strips the Schroeders of a property right—the right to rent—without providing them any compensation. And it punishes the Schroeders for doing what a responsible property owner should do, which is research the law and make sure their plan conforms to what was required of them.

“By capping the number of vacation rentals, Wilmington is effectively changing the rules in the middle of the game,” said Institute for Justice Senior Attorney Robert Frommer. “The city’s decision to regulate vacation rentals violates state law, and its use of a controversial tool called amortization to put a ticking time bomb on Peg and David’s rights violates the North Carolina constitution.”

Virtually every state in the country requires that a city compensate property owners if it takes their property or infringes on their property rights—including the right to rent property. But Wilmington argues that its “amortization” scheme means it doesn’t owe the Schroeders anything for taking away their rights. Instead, the city says that by letting them rent for an extra year, the Schroeders can compensate themselves. But anyone who understands the economics of vacation rentals or home renovations knows that a year is nowhere near enough time for Peg and David to recoup their investment.

Thankfully for the Schroeders, the North Carolina Constitution prohibits the government from taking away property rights that owners have acquired by making substantial—and legal—investments in their property. And that is exactly what the city is doing to the Schroeders. Even worse, the city stripped the Schroeders of their right to rent through a lottery system, an inherently arbitrary way to decide who may exercise their rights and who may not.

“Property rights cannot be simply raffled off for the benefit of one small class of people at the expense of everyone else,” said IJ constitutional fellow Adam Griffin. “By establishing a two-percent cap and squeezing out all other property owners via a lottery, that is precisely what the city of Wilmington has done here. That violates the North Carolina Constitution.”

Pennsylvania Court Strikes Down Licensing Law that Kept Two Philadelphia-area Women from Working in Cosmetology

PHILADELPHIA—The Commonwealth Court of Pennsylvania ruled today in favor of two Philadelphia-area women denied licenses by the Pennsylvania Cosmetology Board. The Board, citing a “good moral character” requirement, used Courtney Haveman’s and Amanda Spillane’s long-past legal problems to deny them the right to work even after each spent hundreds of hours in cosmetology school. In December 2018, Courtney and Amanda teamed up with the Institute for Justice to challenge the requirement in state court. Today’s ruling finds that the requirement is unconstitutional since applicants for barber licenses were not subject to the same requirement.

“Today, the court called it ‘absurd’ to make cosmetology applicants prove that they’re good people when barbering applicants don’t have to,” said IJ Attorney Andrew Ward. “This decision means fewer people will be denied the right to work because of old convictions that don’t relate to their new jobs.”

Courtney and Amanda attended beauty school to train as estheticians—cosmetologists who focus on the beauty and care of the face. After graduating, both applied to take the exam to receive licenses. Similarly, both struggled with substance abuse, but have been sober and stayed out of trouble for years. The Cosmetology Board used old criminal convictions to deny the women licenses, making the money and months they spent on training useless.

The Commonwealth Court noted that barbers in Pennsylvania are permitted to do many of the same tasks as estheticians and even work in the same salon, yet do not have to prove their good character to get a license. The court found that this violates the Pennsylvania Constitution’s right to equal protection of the laws. Unless the Board appeals the decision to the Pennsylvania Supreme Court, Courtney and Amanda will be able to reapply to take the esthetician exam without undergoing a character screening.

“I’m overjoyed that the court ruled in my favor,” said Courtney Haveman. “It was devastating to work my way through beauty school only to be told that I wasn’t good enough to have a license. I’m working in a salon right now, but not in the job I trained for. Hopefully, I’ll be able to move into a position that will better support my young son.”

Courtney and Amanda’s case helped prompt the Pennsylvania Legislature to change how licensing boards evaluate applicants’ backgrounds. Those changes will go into effect in December 2020. Today’s ruling brings relief for Courtney and Amanda even sooner.

Even so, laws limiting people previously convicted of a crime, known as “collateral consequences,” remain widespread. Nationwide, there are approximately 30,000 such laws related to employment alone, and they are found at every level of government: local, state and federal. With approximately 1 in 5 Americans required to hold a license to legally work, there are many common occupations from which people with criminal convictions are excluded, making it that much harder for them to find a job and stay out of trouble. A recent report from IJ, Barred from Working, documents these licensing barriers.

“It’s counterproductive to deny people licenses for old crimes unrelated to the jobs they want to do,” said IJ Senior Attorney Dan Alban. “There’s a growing consensus that harsh laws like these aren’t working and that they contribute to recidivism. It’s good that Pennsylvania will now make it easier for people to get their lives back on track.”

This was the first case where IJ challenged a collateral consequences provision for an occupational license. However, IJ recently filed a new case in California on behalf of a seasonal firefighter who is barred from applying for an EMT license even though he passed the national EMT exam. Without an EMT license, it is practically impossible to apply for full-time firefighting jobs in California. IJ also scored a major win at the Pennsylvania Supreme Court challenging the requirement that a rental vacation manager acquire a full real estate license before she can operate her business.

Lawsuit Challenging Chicago’s Impound Program Will Move Forward

CHICAGO—A lawsuit challenging Chicago’s car impound program as unconstitutional will move forward after Federal District Court Judge Mary Rowland rejected several of the city’s requests to dismiss the case. In the spring of 2019, the Institute for Justice (IJ) brought the suit on behalf of five car owners whose vehicles were confiscated by the city for offenses for which they were not responsible. Three claims will continue to be litigated: 1) the city’s scheme violates the Illinois Constitution’s proportionate penalties clause, 2) the city provides inadequate notice that cars have been impounded and will be disposed of, and 3) the city holds cars for ransom until the owners pay all fines and fees even without a judge ruling the owner is liable.

“Chicago’s unjust impound program subjects innocent car owners to sky-high fines and fees,” said IJ Attorney Diana Simpson. “We look forward to continuing to fight on behalf of Chicagoans who have been victimized by the city’s ‘seize first, hearing later’ process.”

Unfortunately, two of IJ’s clients, Veronica Walker-Davis and Jerome Davis, were dismissed from the lawsuit. Their car was towed after Chicago police stopped an auto shop employee who was driving the vehicle on a revoked license. Judge Rowland reasoned that their claims were barred because the Davises reached an agreement with the city to reduce the amount they owed. Unfortunately, the city disposed of their car before the deadline passed.

“The city didn’t keep its end of the bargain we made to get my car back,” said Veronica Walker-Davis. “Now that broken agreement is being used to prevent me from getting justice in the courts. That’s just wrong.”

Chicago did recently reform its impound program, including providing additional protections for innocent owners and reducing fines and fees. Unfortunately, these reforms do not go far enough to end the unconstitutional aspects of the program, and they did not include any attempt to help people whose rights had been violated under the previous program. IJ and its clients seek additional reforms and either the return of their vehicles or compensation for their losses.

“We look forward to continuing to fight for our clients,” said IJ Attorney Kirby West. “Moving into the discovery phase of the suit will give Chicagoans a peek behind the curtain of the city’s impound program. While our lawsuit has prompted important reforms, there is still a long way to go before we can get justice for Windy City car owners.”

North Carolina Parents Join Legal Battle to Save State’s Opportunity Scholarship Program

Today, three North Carolina families whose children benefit from the Opportunity Scholarship Program (OSP) announced their intervention with the Institute for Justice (IJ) to defend the OSP against a lawsuit challenging its constitutionality. The lawsuit, supported by several prominent North Carolina teachers’ unions, challenges a program that provides scholarships of up to $4,200 to low-income families to empower them to send their children to the private school of their choice. By moving to formally intervene in the lawsuit, the parents seek to ensure that the voice of the thousands of low-income families that rely on the scholarship are heard as the lawsuit proceeds through the courts.

“The North Carolina Supreme Court ruled five years ago that the OSP is constitutional and serves a valid public purpose, namely the education of North Carolina’s children,” IJ Senior Attorney Tim Keller said. “Parents, not government, should be able to choose the school that will best meet their children’s educational needs.”

Defending the program are parents Janet Nunn, Christopher and Nichole Peedin, and Katrina Powers. They are using the OSP to send their children to St. Mary Catholic School in Goldsboro, Brookstone Schools in Charlotte, and the nonreligious The School of Hope in Fayetteville. The lawsuit against the OSP threatens all of their children’s education plans, no matter what kind of school they attend.

Janet Nunn, a parent-intervenor in the lawsuit, uses the OSP for her granddaughter, Nariah. Nariah was born two months prematurely, spending more time in the hospital than most children. By the end of the first grade in her local public school, Nariah was behind academically.

Janet thought Nariah should repeat the first grade rather than fall behind even more, but Nariah’s assigned public school wanted to socially promote Nariah despite her clear lack of readiness. Disillusioned with the public school’s apparent disinterest in Nariah’s academic development, Janet applied for an OSP, which she used to enroll Nariah at Victory Christian School. Nariah thrived there,  quickly  mastering the fundamentals of reading and developing a new love of learning. Following her academic growth there, Janet decided it was time to find a school for her daughter with a rigorous, classical approach to education. Nariah is now thriving at Brookstone Schools in Charlotte and would not be able to continue attending without the OSP. This would be a huge blow to Nariah’s education.

“The OSP has provided Nariah with an education to excel,” said IJ parent-intervenor Janet Nunn. “Her confidence, her belief, her willingness to learn has increased dramatically. She’s a hard worker and she knows the value of the scholarship and works hard.”

This is not the first time that IJ has sought to vindicate the constitutionality of North Carolina’s OSP. Five years ago, IJ successfully defended the OSP from a lawsuit that was initiated by prominent North Carolina teachers’ unions soon after the program was enacted. Nothing has changed in North Carolina since that 2015 ruling. Nevertheless, the plaintiffs argue that the entire OSP should be struck down because religious schools that enroll OSP students are permitted to provide religious instruction, openly worship, and take consider religious factors into account in admissions.

The plaintiffs’ allegations apparently amount to arguing that because parents may choose religious schools that the entire OSP should be struck down. But this argument has recently been foreclosed by the U.S. Supreme Court. As the Court ruled in the landmark case of Montana Espinoza v. Department of Revenue, striking down a school choice program because families may choose religious options violates the Free Exercise Clause of the First Amendment.

“The U.S. Supreme Court has held time and time again that states can create alternatives to the public-school system. That is all the OSP is—an alternative,” said IJ Attorney Ari Bargil. “If this misguided lawsuit against the program succeeds, thousands of kids who left schools where they did not feel academically challenged or safe, will have to return. This lawsuit is not about the well-being of North Carolinian children.”

Parent-intervenor Katrina Powers’s story exemplifies why school choice is so important. Katrina’s older two daughters are attending public school, and her youngest daughter, Teagyn, is a child with high-functioning autism who struggled in her government-zoned public school. It was emotionally stressful for her there because she did not receive the help she needed, and the school denied an accommodation she needed to learn. But now, thanks to the OSP, Teagyn is thriving academically and emotionally at The School of Hope. If the OSP went away, Katrina would be denied an education she is benefitting from so much.

“The OSP has grown from serving just over 1,200 students in 2014 to 12,284 for the 2019–2020 school year. It is popular because families know what’s best for their children, and families benefitting from the program, like our clients, know this lawsuit was not filed with their kids’ education in mind,” said IJ Attorney Marie Miller.

Since its founding over a quarter-century ago, IJ has successfully defended educational 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 a discriminatory scholarship program in Maine.

Hindsight on 2020: IJ Launches Legislative Initiative to Help Lawmakers Craft and Enact Responsive Reforms to Crises of This Year

Today, the Institute for Justice (IJ), a nonprofit public interest law firm, launched a new initiative aimed at helping legislators at the state and local level identify and craft high-impact, narrowly tailored and practical legislative reforms that respond to the crises of 2020. The “2021 Initiative” brings to bear the expertise of IJ’s attorneys, advocates and researchers to respond for the remainder of this year and into 2021 to the three main crises of 2020:  the COVID-19 pandemic, the devastation it caused the economy and ongoing issues with the inability to hold government officials accountable.

“The year 2020 brought unprecedented crises and has taught Americans a lot of hard lessons,” said Lee McGrath, IJ’s senior legislative counsel. “To make matters worse, long-standing laws and policies have exacerbated these crises, leading to limitations on the availability of health care, barriers to honest work, and official misconduct.”

The initiative seeks to help lawmakers:

  • Increase the availability of health care — The pandemic exposed that health care regulations often decrease access to needed services and stifle medical innovation. In response to COVID-19, many states temporarily waived some of these regulations, which calls into question their existence in the first place.
  • Create economic opportunity — With tens of millions of Americans unemployed, a simple way for states to jump-start their economies is to remove barriers to earning a living and make it as easy as possible for people to find work. The initiative proposes ways to make it easier for currently displaced workers, particularly those in the hospitality industries, to find accessible work, and for small businesses to adapt and stay afloat.
  • Instill accountability in government — There also are long-standing policies that allow law enforcement and other government officials to act with impunity, which undermines the proper role of the police and has led to tragic misconduct. There are practical steps lawmakers can take to fix fundamental flaws in the way American communities are regulated and policed.

The reform ideas are previewed on the initiative’s website, www.2021initiative.com, but IJ’s recommendations to states and cities will be based on real-world research about the jurisdiction’s experience in 2020. IJ will ensure that reforms are highly responsive to needs on the ground—not just models off the shelf.  State reforms span all three areas, and local reforms are focused on creating economic opportunity.

“There is no one-size-fits-all solution to lawmaking,” said Brooke Fallon, associate director of activism and leader of IJ’s effort to make it cheaper, faster and simpler to start a small business in America’s cities. “Every city and state is different, and has experienced 2020 in different ways. And while model bills have their place, the hard work is identifying responsive solutions for jurisdictions based on local needs and crafting impactful legislation. We are ready to join state and municipal leaders to tackle that challenge!”

“Through this initiative, we hope to partner with lawmakers to make 2021 a year of recovery,” said IJ legislative counsel Meagan Forbes. “Our goal is to help lawmakers take the lessons of 2020 and turn them into substantive change that increases the availability of health care, gets millions of Americans back to work and instills accountability in government officials. And we at IJ are ready to help however we can.”

For more than 25 years, the Institute for Justice has fought to break down barriers to work, create opportunity, and hold government officials accountable, through cutting-edge litigation, legislative and grassroots advocacy and strategic research. Based in Arlington, Virginia, IJ also has regional offices in Miami, Minneapolis, Austin, Phoenix and Seattle, as well as a legal clinic at the University of Chicago.

“Why are there so few ICU beds?” New report lambasts “patchwork” of laws limiting health care access

Arlington, Va.— As the COVID-19 pandemic swept across the country, public health professionals issued dire warnings that the nation could face a critical shortage of hospital beds. At the height of the pandemic, no one had the time to stop and ask: “How could one of the world’s most advanced health care systems run out of hospital beds?” But now, a new report by the Institute for Justice (IJ) details how a patchwork of decades-old laws hindered health care providers’ ability to meet the needs of the nation.

In “Conning the Competition: A Nationwide Survey of Certificate of Need Laws,” IJ’s attorneys detail how certificate of need laws, or “CON” laws, in 35 states set hard caps on a variety of medical services—including much-needed ICU beds—in the name of preventing “oversupply.” In reality, the CON laws that remain in place serve only one purpose: to protect existing health care providers from competition. They are the vestiges of a discredited attempt to govern health care access by formulas and regulators, rather than allowing doctors and patients to work together to best meet the needs of the nation.

“It is telling that the majority of institutions that support CON laws are those that benefit from them,” said IJ Attorney Jaimie Cavanaugh, who co-authored the report. “In reality, they only serve to protect existing providers from competition.”

The report was released in conjunction with IJ’s “2021 Initiative,” which seeks to take the lessons learned in 2020—including the need to eliminate CON laws—and work with lawmakers at the state and local levels to identify and craft substantive, responsive and impactful reforms ahead of the 2021 legislative session.

IJ also has three active lawsuits challenging state CON laws. Most recently, in a lawsuit challenging Kentucky’s CON for home health care services, a federal judge questioned the policy, writing: “It’s hard to picture this kind of central planning in most other American industries. Consider, for example, if Michigan had told Henry Ford he couldn’t build a Model T factory because the market had enough Buicks. Just think how different our Commonwealth would look if Kentucky had told the innovators behind Louisville Slugger, Churchill Downs, and Kentucky Fried Chicken we already had enough baseball bats, race tracks, and fast food.”

“It should not have taken a worldwide pandemic for states to loosen or eliminate their CON laws,” said co-author Melissa LoPresti, IJ’s Litigation Projects & Training Programs Manager. “For decades, state CON laws have limited health care options and driven up health care costs, while doing nothing to ensure quality, affordability or safety for patients. That much is borne out by the fact that twelve states have completely eliminated their CON laws with no detrimental effects.”

At their core, CON laws are government-mandated permission slips governing nearly every aspect of opening or expanding health care services. Although the federal government has agreed for decades that CON laws are a policy failure, 35 states have been slow to repeal or reform their existing CON programs. And many states have expanded their CON laws to further insulate existing providers from competition.

As the report illustrates, the restrictions associated with CON laws are so great that at the onset of the pandemic this spring, 25 jurisdictions quickly suspended or loosened their CON requirements to allow health care facilities to respond properly to COVID-19. This demonstrates that political pressure—not concern for health and safety—has kept CON laws in place all along.

Comparing states’ CON requirements—along with their myriad exceptions—reveals an utterly incoherent doctrine. There is no rhyme or reason as to why certain facilities or services require a CON. This suggests that CONs are driven less by what will improve patient health and more by lobbying efforts from insider groups within each state.

Nevada, for instance, only requires hospitals in rural areas to obtain CONs, while several states, including Alabama, Kentucky, Oregon and Washington exclude rural areas from their CON programs. Conversely, those states only require CONs in urban areas.

Most states with CON programs regulate hospice care or hospice facilities, but Connecticut and Maine exempt hospices from their CON programs. Many states require facilities to obtain a CON to offer cardiac or cardiovascular surgeries, but not other types of surgeries.

The report also details how the CON application process is both time consuming and expensive. The process can stretch for months. In Arizona, it lasts over a year. And costs vary greatly: The report notes that application fees are $200 in Louisiana, $10,000 in Florida and up to $300,000 in Washington, D.C.

The report’s other key findings include:

  • Twelve states maintain health care moratoria. Moratoria are more dangerous than CONs, as they are a total ban on opening or expanding a facility. While CONs typically make expanding health care facilities more difficult and more expensive, moratoria make it impossible.
  • CONs are not limited to facilities with large capital investments, as originally intended. Instead, small-ticket items like routine renovations, removing or converting a hospital bed, or opening a home health agency require CONs.
  • Multiple states require CONs for technology that hasn’t been used in the state before. This undercuts the justification that CONs are necessary to prevent the costly duplication of services, because where a CON is required for brand-new technology, there is no duplication of service.

Although the report surveys 39 CON or quasi-CON jurisdictions, nearly 40% of the nation’s population live in states free from the burdens of CON laws. These states, which include California, Pennsylvania and Texas, have recognized that CON laws are a government-mandated barrier to health care. And government shouldn’t be in the business of picking winners and losers in the marketplace. Indeed, none of these states has witnessed the horrors predicted by CON advocates.

Thus, the report concludes that the CON states should follow the lead of the dozen states without CON laws and repeal their CON programs to open access to more care options. At the very least, the 25 jurisdictions that suspended or loosened CON requirements in response to COVID-19 should make those changes permanent.

Maryland Court of Appeals Upholds Protectionist Food Truck Rules

Annapolis, Md.—The Maryland Court of Appeals yesterday rejected Baltimore food truck owners’ challenge to city rules preventing mobile vendors from operating within 300 feet of any brick-and-mortar business that primarily sells the same products or services. The Institute for Justice (IJ) and two food trucks, Pizza di Joey and Madame BBQ, first challenged the rule in 2016. The Court held that Baltimore could enact the rule out of fear that “mobile vendors would siphon business from brick-and-mortar restaurants” which Baltimore could speculate may harm “the vibrancy of its commercial districts.” And despite officials admitting they could not agree about how to interpret or enforce the ban, the Court said “the fact that different enforcement authorities might come to different conclusions. . .does not trouble us.”

“At a time when Americans are struggling to get by and food options are growing more limited each day, Baltimore has been allowed to put further limits on food options to protect established restaurants and businesses,” said IJ Senior Attorney Robert Frommer. “The city’s 300-foot ban makes even less sense today as lockdowns in response to COVID-19 force restaurants to operate more like food trucks, often dispensing food rather than allowing diners to eat in. Now, food trucks cannot operate even if the nearby restaurant were temporarily closed by a lockdown.”

“This is a sad day for Marylanders, both for those who aspire to own a food business and hungry customers who love food trucks,” said Joey Vanoni, owner of Pizza di Joey. “Without my food truck, I never would have been able to also open a pizza shop at Cross Street Market, no thanks to Baltimore City government. Starting with a brick and mortar restaurant was simply beyond my reach at the time and the same goes for many entrepreneurs here in Maryland. I think this ruling just makes it even more unnecessarily difficult for small business owners like myself in Baltimore to get ahead and achieve the American dream.”

In December 2017, the Baltimore Circuit Court ruled that the 300-foot ban was vague and could not be enforced. Baltimore officials testified that they had no clear guidelines for when food was “similar” enough to warrant enforcement against a food truck. That ruling was overturned by the Court of Special Appeals in May 2019 and the ban was reinstated. Under the ban, violators would be guilty of a misdemeanor that could result in a $500 fine and loss of their vending license.

“Unfortunately for entrepreneurs across the state, the Court of Appeals’ decision signals that courts should not strike down laws purposely designed to protect a preferred business at the expense of another,” said IJ Attorney Ari Bargil. “The responsibility now falls to the Maryland General Assembly to pass legislation that rejects economic protectionism as a legitimate government interest and provides meaningful protections for entrepreneurs statewide.”

The Court of Appeals explained that its decision “offer[ed] no views on the wisdom or the economic efficacy of the 300-foot rule,” and upheld the ban in light of its determination that “[o]ur role is not to screen for bad policy.”

“This decision is a severe blow to anyone hoping the Court of Appeals would safeguard the right to earn an honest living in Maryland,” said Frommer. “The Court of Appeals made clear in its opinion that it weighed the government’s speculation more heavily than the actual evidence showing the 300-foot rule harms businesses and consumers alike.”

Tennessee Property Owners Score Early Win in Lawsuit Against Warrantless Trespassing, Surveillance on Private Land

Camden, Tenn.—Today, Benton County Circuit Court Judge Charles McGinley denied the Tennessee Wildlife Resources Agency’s (TWRA) motion to dismiss a lawsuit from Tennessee landowners Terry Rainwaters and Hunter Hollingsworth. They joined forces with the Institute for Justice (IJ) in April to sue TWRA for ignoring their “No Trespassing” signs by entering and installing cameras on their land. Today’s ruling means they are one step closer to vindicating the property and privacy rights guaranteed by the Tennessee Constitution.

“Private land is not open to public officers,” said IJ Attorney Joshua Windham. “We look forward to Tennessee’s courts declaring once and for all that the Tennessee Constitution does not allow the government to conduct warrantless surveillance of private property.”

TWRA believes that its warrantless searches are legal under the century-old “open fields” doctrine. In 1924, the U.S. Supreme Court held that the Fourth Amendment to the U.S. Constitution does not protect any land beyond the home and its immediately surrounding area. The Court reaffirmed the doctrine in 1984 when it held that property owners have no “reasonable expectation of privacy” on any private lands the Court deems to be an “open field.”

But that is not the law in Tennessee. Article I, Section 7 of the Tennessee Constitution protects each individual’s “persons, houses, papers and possessions” from “unreasonable searches and seizures.” Since 1926, the Tennessee Supreme Court has held that this provision protects private land from warrantless intrusions. By entering Terry’s and Hunter’s property and installing surveillance cameras in their trees, TWRA is conducting unconstitutional warrantless searches.

With the denial of TWRA’s motion to dismiss, the case will now proceed to discovery and a decision on the merits.

Nepali Immigrants Win First Round in Federal Lawsuit Challenging Kentucky Law That Stopped Them from Opening a Home Health Care Business

Louisville, Ky.—Today, Federal District Court Judge Justin R. Walker handed a first-round legal victory to two Nepali immigrants in their challenge to a Kentucky law that is preventing them from opening up a new home health care business in Louisville. Dipendra Tawari and Kishor Sapkota filed their lawsuit in December 2019, after the state rejected their application for a certificate of need (CON), a government permission slip to open a business. The Institute for Justice, a national law firm that has challenged CON laws in several states, is representing Dipendra and Kishor.

“Certificate of need laws unconstitutionally prevent new businesses from competing with established ones,” said IJ Attorney Jaimie Cavanaugh.  “We are thrilled that the court recognized that government shouldn’t be in the business of picking winner and losers. In fact, by doing so, it is entrepreneurs and patients who lose out.”

In his order denying the state’s motion to dismiss the suit, Judge Walker documents,”[T]here is every reason to think that Kentucky’s law increases costs, reduces access, and diminishes quality — for no reason other than to protect the pockets of rent-seeking incumbents at the expense of entrepreneurs who want to innovate and patients who want better home health care.”

Dipendra and Kishor saw an urgent need for Nepali speakers to receive home health care from workers who understood their language and culture. With thousands of Nepali immigrants living in the Louisville area, they hoped to open a modest business that would employ nurses and health aides qualified to offer services to both the Nepali community and anyone else needing quality care in their home. But their dream was ended by the state’s CON law, which says that there is no need for new home health agencies in most of Kentucky.

That law effectively allows large health care companies to monopolize home health services in the state. Dipendra’s application was formally opposed by the $2 billion Baptist Health conglomerate, which operates its own home health agency.

Numerous studies have shown that CONs do not reduce health costs and may serve as a barrier to patients getting the care they need. In 2013, a national consulting firm hired by the state of Kentucky recommended “[s]uspending / discontinuing the CON program for home health agencies.” However, that recommendation was never acted upon by Kentucky legislators.

“No one should be barred from opening a business just because a competitor got there first,” said IJ Attorney Andrew Ward. “Kentucky’s CON law is unconstitutional, and we’re looking forward to proving it at trial.”

Institute for Justice Calls on South Carolina Supreme Court to Reject Constitutional Challenge to Scholarship Program

Arlington, Va.—The Institute for Justice (IJ) today filed a brief in Adams v. McMaster, a case challenging a new South Carolina program to provide educational choice grants to allow families to defray the costs of sending children to private or religious schools. In its brief, IJ reminds the South Carolina Supreme Court that its state constitution was amended to allow for funding to students to independently choose from non-religious and religious options.

“This case is simple: the plaintiffs are challenging these new scholarships based on an old interpretation of the South Carolina Constitution, which has since been amended,” said IJ Senior Attorney Tim Keller. “As it stands, the constitution allows the state to establish a school choice program that lets families choose between religious and non-religious options.”

In July, South Carolina Governor Henry McMaster announced the creation of the Safe Access to Flexible Education (SAFE) Grants program, which will provide one-time, federally funded grants to students to pay for tuition costs at private schools located in South Carolina. Following announcement of the program, a retired South Carolina schoolteacher and a taxpayer filed a lawsuit alleging that the SAFE program violates a provision of the South Carolina Constitution, which states, “No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”

The challengers of the program rely on a 1971 South Carolina Supreme Court decision. However, in 1973, South Carolina amended its constitution by eliminating the ban on “indirect” funding of private educational institutions. Under the challenger’s interpretation of the state’s constitution, not only would the SAFE program be struck down, such a decision would have dire implications for programs like the South Carolina Higher Education Excellence Enhancement Program.

Since its founding over a quarter-century ago, IJ has 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 a discriminatory scholarship program in Maine.

Montana Supreme Court Directs District Court To Rule in Favor of Espinoza Parents, Clearing Way for Program to Continue

Arlington, Va.—Today, the Montana Supreme Court officially recognized that three Kalispell mothers successfully protected Montana’s tax credit scholarship program.  The program has been the subject of contentious litigation since the Montana legislature passed the program five years ago and the Montana Supreme Court invalidated the program in 2018.  The litigation culminated in the landmark U.S. Supreme Court ruling in Espinoza v. Montana Department of Revenue, in which the Court ruled in favor of the program on June 30, 2020.  Today, the Montana Supreme Court remanded the case to the state district court with instructions to enter judgment in favor of the three mothers.  As a result, the program can continue awarding scholarships to needy families, free of legal uncertainty.

The lawsuit started in 2015 after the Montana Department of Revenue enacted a rule limiting scholarships to children attending nonreligious schools.  Three low-income mothers who wanted to use the scholarships at a religious school sued, represented by the nonprofit law firm, the Institute for Justice.  The mothers claimed that the department’s rule was invalid because the legislature intended the program to help children attend any private school, whether religious or nonreligious.  The mothers also argued that excluding religious options from the program violated their religious liberty under the U.S. Constitution.

Although the mothers won at the district court, the Department of Revenue appealed, leading the Montana Supreme Court to invalidate the entire program for children attending both religious and nonreligious schools.  The Court held that invalidating the program was the only way to prevent scholarships to children attending religious schools, which the court found violated the Montana Constitution.  On June 30, the U.S. Supreme Court reversed, holding that invalidating the program for including religious options violated the Free Exercise rights of both religious schools and the families who attended them.

Some speculated, however, that the Department of Revenue may try to persuade the Montana Supreme Court to invalidate the program on other grounds.  The department declined to do so, and the case is now coming to a close.

“Montana families can now rest easy knowing that the scholarship program is here to stay,” said Erica Smith, a senior attorney at the Institute for Justice and co-counsel for the parents.  “Every child deserves to go to the school that is best for them, regardless of their zip code and their parents’ income.”

Those wishing to donate to the tax credit scholarship program can go to: https://bigskyscholarships.org/

Nebraska Law No Longer Protects Instate Moving Companies From New Competition, But Another Anticompetitive Measure Stays Alive for Now

Lincoln, Neb.—Gov. Pete Ricketts signed legislation that repeals a requirement that moving companies get permission from their competitors before they can open a new business. The so-called “certificate of public convenience and necessity” requirement gave existing moving companies the opportunity to formally object to new entrants and keep them out of the market. Unfortunately, the bill was watered down before passage allowing another anticompetitive measure to remain law and leaving an Omaha entrepreneur to continue his legal battle to offer non-emergency medical transportation.

“Nebraskans looking to move around the corner or across the state will find it a little easier and less expensive to hire a moving company now,” said Institute for Justice (IJ) Legislative Counsel Meagan Forbes. “Allowing existing companies to use the law to keep out their competitors never made sense. While we had hoped for broader reform, the new law is a win for common sense and economic freedom. We congratulate legislators and the Platte Institute, which supported the bill and has long fought against laws that hold back entrepreneurs in Nebraska.”

LB 461 repealed the certificates of public convenience and necessity requirement for household good movers, for transporting railroad crews and for agritourism. However, the bill as introduced in 2019 also ended the same requirement for non-emergency medical transport and taxis. In April 2020, Marc N’Da, owner of Dignity Home Care, teamed up with IJ to file suit asking Nebraska courts to strike down the law for violating the state’s constitution.

Dignity Home Care offers home health care in metro Omaha and Lincoln. Marc’s business can transport home health patients on common errands, such as grocery shopping. However, taking these patients to the pharmacy or a doctor appointment is classified as non-emergency medical transportation and requires the certificate. In 2017, Marc applied and was found by the state to be “fit, willing, and able” to provide service but was denied the certificate after existing companies objected to his application.

“Marc’s employees can drive patients to Walmart but not the Walmart pharmacy. That makes no sense,” said IJ Attorney Will Aronin. “It’s good that the Nebraska Legislature eliminated a state-created cartel for movers, but it still left in place another for non-emergency medical transport. Neither law squares with the Nebraska Constitution and Marc is going to continue his fight to grow his business and help his patients.”

Nebraska’s certificate of convenience and necessity law grants extraordinary power to a handful of companies, allowing them to protect their private interests. Marc’s suit maintains that the law violates three different provisions in the Nebraska Constitution: the prohibition on special legislation, the guarantee of due process of law, and the prohibition on granting special privileges or immunities.

The Institute for Justice is a nonprofit public interest law firm that fights for the right to earn an honest living. IJ is currently challenging medical certificate of need laws in Kentucky and North Carolina. IJ also has a long history of challenging transportation cartels across the country.

National Food Freedom Advocate Condemns Albuquerque’s Unconstitutional Ban on Homemade Food Sales

Albuquerque, N.M.—The COVID-19 pandemic has crippled the economy of every city in America, and Albuquerque is no exception. With unemployment up and consumer activity down, Americans need to have every option available to support themselves and their families. Yet Albuquerque does not allow the sale of safe, shelf-stable foods like baked goods made at home—foods that the rest of New Mexico and 48 states allow. Albuquerque’s ban on all homemade or “cottage foods” sales isn’t just wrong: it’s unconstitutional. The Institute for Justice (IJ), a national advocate for home-based entrepreneurs, is warning the city that it must amend its unconstitutional ban.

“Albuquerque’s ban on selling homemade cakes, cookies and other safe foods is unfair and unconstitutional,” 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.”

The New Mexico Environment Department website informs residents “wanting to operate a home-based food processing operation” that they “must first obtain a permit from NMED before offering their non-potentially hazardous food products to the public.” The page then notes that “Residents of the City of Albuquerque are not eligible to receive a permit for a home-based food processing operation permit. The city is outside of NMED’s jurisdiction, and similar regulations have not been adopted by the City of Albuquerque.” IJ further received confirmation from the city that it bans the sale of all homemade foods.

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.

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 Albuquerque households struggling during the pandemic.

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, West Virginia, Nebraska, Wyoming, and D.C.

Homemade Food Producers Win First Round In Fight to Restore Food Freedom to North Dakota

Bismarck, N.D.—Today, a North Dakota district court denied the North Dakota Department of Health’s motion to dismiss a lawsuit brought by five North Dakotan homemade food producers to restore the Cottage Food Act. These homemade food producers partnered with the Institute for Justice (IJ) to sue the Health Department for illegally gutting the law in 2019, after it failed to convince the North Dakota Legislature to restrict cottage food sales. Now, North Dakotans are one step closer to being able to buy or sell nearly any homemade food or meal from their neighbors, as they could between the Act’s passage in 2017 until January 1st of this year.

“The Court rightly declared that North Dakotans should not have to jump through unnecessary hoops to challenge regulations that were illegal in the first place,” IJ Senior Attorney Erica Smith said. “North Dakotans are one step closer to again being able to sell homemade foods to their community.”

The Department attempted to have the lawsuit dismissed by arguing that all five plaintiffs should go back to the Department and ask it to “reconsider” the rules before they could challenge those rules in court. The Department also tried to block one of the plaintiffs from being part of the lawsuit at all and instead force that plaintiff to proceed in a separate procedure called an “administrative appeal.”

In her ruling, District Judge Cynthia Feland held that the Department’s motion would burden the plaintiffs’ rights to seek relief in Court and would “waste both judicial and party resources.” The Court thus allowed all five plaintiffs to move forward with their current lawsuit.

The plaintiffs in the lawsuit are Danielle Mickelson, Lydia Gesselle, Lonnie Thompson, Summer Joy Peterson and Naina Agarwal. They come from different parts of North Dakota and want to sell different foods, all of which they were able to sell under the Cottage Food Act.

“During the COVID-19 pandemic more than ever, consumers need access to safe, fresh and convenient foods. And with increased unemployment and people spending more time at home, it’s a great time for people to make and sell homemade foods to earn extra income for themselves and their families,” said IJ Attorney Tatiana Pino. “Our lawsuit aims to restore the rights that unaccountable bureaucrats rolled back with their illegal rulemaking.”

Where’s the Beef? Congress’s COVID-19 Relief Packages Contain a Conspicuous Omission

Arlington, Va.—As Congress prepares August legislation to help a nation still battling the effects of the COVID-19 pandemic, there’s one important issue that remains unaddressed: the country’s meat supply. Months ago, the pandemic exposed a major weakness in America’s food supply system; under current federal law, ranchers and farmers may only slaughter and process livestock at a few existing USDA-inspected facilities. About 50 mega-facilities are responsible for 98 percent of the country’s meat production.

Because there are so few slaughterhouses, the closing of even one can cause serious problems for consumers and ranchers, which is exactly what happened during the pandemic and contributed to a severe meat shortage. Multiple slaughterhouses closed after these industrial-sized facilities became hotbeds for coronavirus outbreaks. The result was that farmers had nowhere to bring their animals and had no choice but to euthanize millions of animals. Meat prices are still soaring from the resulting shortage.

Congress can fix this problem and prevent it from happening again with the PRIME Act.

The PRIME Act would allow small-scale farmers and ranchers to slaughter and process their animals at small facilities—known as custom slaughterhouses—within their communities, instead of hauling their animals hours away to USDA-approved meat packing plants. The Institute for Justice (IJ), a national nonprofit law firm that advocates for economic liberty and food freedom rights, supports this bill, which would benefit producers, consumers, animals, and the environment.

“The PRIME Act would make it easier for consumers to buy meat from local farmers and ranchers without compromising health or safety,” said IJ Senior Attorney Erica Smith. “Allowing animals to be processed nearby at small facilities is also much less stressful for the animals and more humane.”

Allowing slaughter at local facilities is safe. The law already allows farmers to slaughter animals for their own consumption at these facilities, which is a common practice. What’s safe for farmers and their families is safe for consumers. Public records from the USDA show that there has not been a single report of foodborne illness for at least eight years connected to any of these facilities nationwide.

“Americans want to buy food locally from people they trust. The PRIME Act will benefit consumers and farming communities now and over the long-term,” said IJ Activism Assistant Ellen Hamlett.

IJ is the nation’s top law firm for food freedom. 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, West Virginia and Wyoming.

New report: CBP, Other DHS Agencies Seized $500 Million From Air Travelers Over Missing Paperwork

Arlington, Va.­­­­––As though air travel in the age of COVID-19 were not stressful enough, Americans have another potential risk factor to worry about: cash seizures at airports. Under civil forfeiture laws, U.S. Customs and Border Protection, Immigration and Customs Enforcement, and other Homeland Security agencies routinely seize cash and other currency from travelers at airports nationwide. Most often, their only crime is a failure to file required paperwork. So finds a new Institute for Justice study titled “Jetway Robbery? Homeland Security and Cash Seizures at Airports.”

This study is the first to examine airport currency seizures by CBP, ICE and other DHS agencies. It is also the first to use data from the Treasury Department’s forfeiture database, the Seized Assets and Case Tracking System or SEACATS, which IJ obtained only after a multiyear legal battle with CBP. Covering 2000 through 2016, the study quantifies just how often DHS agencies have seized currency at airports—and just how much currency has flowed into the federal government’s coffers as a result.

“Jetway Robbery?” finds airport currency seizures by CBP and other DHS agencies are a large and growing phenomenon. Over 17 years, DHS agencies seized more than $2 billion across more than 30,000 seizures. The amount seized year to year also trended upward over that period.

“The most common reason for airport currency seizures is a failure to report traveling internationally with $10,000 or more in cash or other currency, as required by federal law,” said Jennifer McDonald, senior research analyst at IJ and author of the report. “Such paperwork violations account for half of all currency seizures and over a quarter of the total value seized—more than half a billion dollars—most without a demonstrated connection to serious criminal activity.”

Indeed, only one in 10 cases involving a reporting violation leads to an arrest, and a second offense—such as drug trafficking or money laundering—is alleged only 0.3% of the time. And regardless of the offense alleged, less than a third of cases overall involve an arrest. This suggests that even when something more serious than a mere paperwork violation is alleged, offenses are rarely egregious enough—or the government’s evidence is rarely strong enough—to warrant arrest, let alone prosecution.

These findings are in line with what IJ has seen on the ground with clients like Anthonia Nwaorie. Anthonia, a U.S. citizen, grandmother and nurse from Katy, Texas, was carrying over $41,000 en route to her native Nigeria, where she planned to use the funds to build a free medical clinic for women and children. “Anthonia had no idea she needed to report leaving the country with more than $10,000 until CBP agents seized her cash and sent her packing,” said Dan Alban, an IJ senior attorney and lead attorney on Anthonia ’s case and another IJ case challenging an airport seizure by DEA and the Transportation Security Administration. “The requirement to report upon entry is well known because travelers are required to complete a customs declaration, but there is no corresponding form to complete when departing and the requirement is not well publicized.” Anthonia was never arrested or charged with any crime.

Further underscoring the lack of an apparent link to serious criminal activity, “Jetway Robbery?” finds 91% of seized currency that is ultimately forfeited is processed under civil, rather than criminal, procedures, meaning no one had to be convicted for the government to keep the cash.

Travelers whose currency is seized at an airport face a long and unfair process when trying to get their money back. Nearly all—93%—of civil forfeiture cases involving currency seized at airports are processed without any judicial oversight. On average, it takes 193 days for currency to be forfeited after it is seized, leaving property owners in legal limbo for more than six months. In one case, 15 years elapsed between seizure and forfeiture.

This, too, conforms with IJ clients’ experiences. Anthonia waited seven months to get her money back. Although the U.S. attorney’s office declined to pursue forfeiture of her cash, CBP refused to return it unless she signed an agreement promising never to sue the agency over its unlawful seizure of her property. CBP relented only after IJ filed a federal civil rights class action lawsuit on behalf of Anthonia and all others similarly situated. The class action continues.

“Federal law enforcement agencies are tasked with finding and punishing criminals, but these findings suggest Department of Homeland Security airport currency seizure and forfeiture practices put innocent Americans at risk,” said McDonald. “To ensure another innocent American never loses property unjustly, and that federal law enforcement is doing its job, Congress must reform civil forfeiture.”

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. Anthonia’s case and others are part of IJ’s nationwide initiative to end civil forfeiture. Sparked by the seizure of the life savings of a Pittsburgh retiree from his daughter who was flying home to Boston, IJ launched a class action lawsuit against the Transportation Security Administration and Drug Enforcement Administration over their seizure practices. IJ also successfully secured the return of cash seized by CBP at the Cleveland, Ohio, airport; there a retiree had $58,100 he had saved to purchase a home in his native Albania taken for seven months. IJ is also litigating another federal forfeiture class action against CBP in Texas; in that case, CBP seized and held a U.S. citizen’s Ford F-250 pickup truck for over two years.

Illinois Home Bakers Compete to Make the Most Creative Treats for Mayor Lightfoot’s Birthday

CHICAGO—Mayor Lightfoot is about to celebrate her first birthday in office. But Chicago’s most famous advocate for staying at home during the COVID-19 pandemic won’t be able to order home delivery of a homemade birthday cake. At least, not legally. Like many cities and towns across Illinois, Chicago doesn’t allow a home baker to sell a chocolate cake outside of a farmers’ market, which is no place to pick up a birthday cake in August during a pandemic. To highlight the lost opportunities for buying delicious homemade foods in Illinois, the Institute for Justice Clinic on Entrepreneurship is holding a contest for the best homemade birthday treats for Mayor Lightfoot.

“Home bakers in Illinois are severely limited in how they can sell their delicious foods,” said IJ Clinic Director Beth Kregor. “We want bakers to be able to show Mayor Lightfoot and all Illinois lawmakers the incredible creations that come from home kitchens. Hopefully, Illinois’ local and state leaders can come together at this time to clear the way for home bakers to be able to earn a living from home.”

The contest is open from now until August 3. Home bakers, both those who sell their products and those who aspire to, are invited to apply through this Google Form. Winners in categories including “Most Tantalizing,” “Funniest,” “Most Unique” and “Most Beautiful” will win Visa gift cards. More information and rules are available on Facebook.

Illinois has a patchwork of regulations about where home-based food businesses can sell their foods and how much money they are allowed to make. Many businesses may not sell anywhere but a farmers’ market. The restrictions already made profiting from home-based businesses difficult, but the pandemic has made it even harder. Some markets are closed, and some customers do not want to shop in crowded places. People want more than ever to buy bread from a neighbor’s porch or order muffins online. And talented home bakers want to make ends meet while staying safe at home. Action by the City of Chicago and the Illinois Legislature could make it possible for bakers and other home- or farm-based food producers to easily sell their products directly to customers or online.

Roseau County Landowners Coalition Teams Up with National Organization, Launches Campaign Against Minnesota’s Pointless Land Grab

Roseau County, Minn.—Today, the Roseau County Landowners Coalition parked two 50-foot trailers in Roseau to spread the word about a project that would devastate their productive family farmlands for no real benefit. At over 50 farmers and landowners strong, the Coalition is launching a campaign in collaboration with the Institute for Justice (IJ), a national nonprofit dedicated to stopping the misuse of eminent domain.

The Minnesota Department of Natural Resources and the Roseau River Watershed District are demanding that flood easements be installed just south of the Roseau Lake Basin on private farmland, which would make the land unfarmable. If these farmers don’t agree to flood easements, the government has threatened to take their land through eminent domain. Worse still, there is little evidence that the plan, which the government says is intended to minimize flooding, will actually accomplish that goal.

“We have been here for generations, and now this misguided project with no real public benefit to justify the huge cost to us farmers will devastate us,” 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.”

The Roseau Lake Rehabilitation Project proposes creating a lake on the existing Roseau Lake Basin for flood damage reduction and for improved wildlife habitat, but on both counts, reality tells a different story. Patrick Nortz, a licensed hydrologist and certified professional engineer, estimated that this project will result in a mere 5% decrease in flooding downstream—at a price tag north of $10 million to taxpayers. Far from a lake, the project would turn the usually dry basin into a semi-permanent marsh, typically 6 inches deep and up to 18 inches. Meanwhile, surrounding farmland will flood more.

The farms that will suffer from this proposal involve real families that have a connection to their farms lasting for generations, with the intention of lasting for generations more, unless this project takes place. Take 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 and work the land themselves, farming wheat, soybean, sunflowers and more.

“It’s very rich land that we have on the farm, it’s just beautiful in the ground. I want to continue farming for myself and for my kids for generations to come,” said Mitch Magnusson.

The Roseau County Landowners Coalition has created a Facebook page, https://www.facebook.com/StopRoseauFarmsLandgrab/, and a website, http://stoptheroseaulandgrab.com, to educate and gather support for families like Mitch’s .

Minnesota’s Lessard-Sams Outdoor Heritage Council, tasked with restoring, protecting and enhancing Minnesota’s wetlands and wildlife—goals that will not be achieved by this project—has committed $2.67 million toward this land grab. On Wednesday, the Roseau County Landowners Coalition will be sending a letter to the Lessard-Sams Outdoor Heritage Council outlining their opposition to the project, and expressing their dismay at being left in the dark as the process has slowly been unveiled.

The group is working with IJ, a national public interest, civil liberties law firm dedicated to stopping the abuse of eminent domain. IJ represented Susette Kelo and her neighbors before the U.S. Supreme Court in Kelo v. City of New London and has successfully litigated on behalf of property owners throughout the country. IJ has helped save over 20,000 homes and small businesses from eminent domain abuse through grassroots activism.

“Many farmers whose entire livelihoods and ways-of-life could be upended by this unnecessary project have only learned of it in the past few months.” said Chad Reese, an activism policy manager with IJ. “Taxpayer dollars should not be used in such an insidious way. The Roseau River Watershed District must completely abandon this plan. Minnesota families will pay the price if it does not.”

Seattle ‘Housing Affordability’ Law Forces Hard-working Homeowners to Pay Ransom for Building Permit—Now Two Residents Are Fighting Back

Almost two years ago, Andre and Erika Cherry bought their first home together. The home, located in the Highland Park neighborhood of Seattle, was a modest two-bedroom fixer-upper built in 1916. After a century of wear and tear, the home showed its age and needed a top-to-bottom renovation—but the Cherrys were up for the challenge. They had always dreamed of owning a home together, and this was the only home they could afford.

Unfortunately, the Cherrys’ dream quickly turned into a nightmare when the city informed them that they needed to pay a whopping $11,000 fee in order to get a building permit—all because of Seattle’s wildly inaccurately named “Housing Affordability Law.” The Cherrys don’t have $11,000 to spare in their budget.  Now, a year later, with their renovation plans on hold, they have partnered with the Institute for Justice (IJ) to formally demand that the city of Seattle drop its outrageous ransom request and issue a building permit immediately.

“Seattle’s ‘housing affordability’ law has made it completely unaffordable for people like us to own a home in this city,” said homeowner Erika Cherry. “We dreamt of turning a fixer-upper into our dream home. But the city’s law has turned that dream into a nightmare. The amount of emotional and financial stress this ordeal has caused is immeasurable.”

The Cherrys’ trouble started shortly after they closed on the home, when Seattle passed the Mandatory Housing Affordability Ordinance. The new ordinance, which became effective in April 2019, changed the zoning for the Cherrys’ home and put it into an “MHA” zone. Under the MHA, residential properties are subjected to substantial requirements whenever the owner builds a “new structure” or makes additions or alterations to existing structures that increase the number of “dwelling units.”

Because of the Cherry home’s age and condition, they put together plans for a major renovation that would fix structural issues, modernize the finishes, and most importantly, bring it up to current code. At the end of their renovations, the plans dictated that their two-bedroom single-family home would remain a two-bedroom single-family home.

But the city didn’t see it that way. The city says that the Cherrys are creating a “new structure” because they are changing the exterior of their home “too much.” As a result, the city has demanded that the Cherrys pay an additional $11,000 in fees or else they won’t get a permit. This delay has already cost the Cherrys thousands of dollars, and it will continue to cost them thousands more.

The Cherrys’ renovation should not be subjected to MHA. Their renovation does not add “dwelling units” to the existing home, nor does it create what any normal person would call a “new structure.” They bought a two-bedroom single-family home to live in. Following their renovations, their home will still be a two-bedroom, single-family home to live in.

“No one should have to pay thousands of dollars in extra government fees just to renovate their home,” explained William Maurer, Managing Attorney of the Institute for Justice’s Washington Office. “It is a measure of the city’s lack of understanding of how economics works that a law claiming to lower the cost of housing actually makes this affordable housing prohibitively expensive.”

Not only was MHA never intended to prevent people from renovating their own homes, applying it to the Cherrys is a violation of their constitutional rights. Because governments often have broad discretion to deny land-use and building permits, permit applicants are especially vulnerable to government coercing them into giving up their rights. Seattle’s costly demands to give the Cherrys their building permit are precisely the kind of “out-and-out . . . extortion” the U.S. Supreme Court has made clear violates the constitution.

The Cherrys cannot afford the city’s costly demands, and they should not have to pay thousands in additional fees just to make their home safe and consistent with modern standards. But they now face a terrible choice: Give up their right to renovate their own home; give in and hand over the money they would spend on their home renovation to the city; or sell out and not be homeowners anymore.

If this can happen to the Cherrys, no homeowner (or would-be homeowner) in America is safe from these kinds of extortionate demands. That is why the Institute for Justice has joined with the Cherrys to ensure that Seattle cannot coerce them into giving up their right to use, and renovate, their own home.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and the nation’s premier defender of property rights. IJ defends the rights of homeowners against the government, as it did in Kelo v. City of New London and as it continues to do by fighting eminent domain abuse and the imposition of fines and fees on homeowners by governments across the country, including in Dunedin, FL, Pagedale, MO, and Memphis, TN. And IJ defends property owners against government attempts to coerce them into giving up their rights through unconstitutional conditions on permits or threats of convictions, as it has done in Richland, WA, and in its pathbreaking challenge to New York’s no-fault eviction policy.

Reforms to Chicago’s Impound Program Are Not Enough

CHICAGO—Today, the Chicago City Council amended its impound program to fix some of the glaring constitutional problems that led the Institute to Justice (IJ) to bring a class-action lawsuit against the city. That lawsuit challenges three aspects of the city’s impound scheme: its fining of vehicle owners for crimes they did not commit; its failure to provide owners with due process; and its requirement that the city hold cars as ransom until the owners pay all fines and fees the city demands. The lawsuit was brought by five Chicagoans who had their vehicles confiscated despite not doing anything wrong.

Today’s reform package fixes some, but not all, of these unconstitutional practices. It expands protections for innocent owners who are not present when their cars are towed. It reduces fines under the program and caps fees associated with impounds. And it provides a way for some owners to get their cars back.

“Cars are a lifeline to many Americans who use them to drive to work, buy groceries and otherwise live their daily lives, and no one should lose theirs to a city that holds them ransom,” said Institute for Justice Attorney Kirby Thomas West. “These reforms mean that far fewer people will suffer from this system going forward.”

But these reforms do not go far enough. In comments to the Mayor and City Council, the Institute for Justice explained the new ordinance’s shortcomings. Under it, vehicle owners must still prove their own innocence. And if those owners happened to be present when the city seized their cars, they can’t claim innocence. The city still refuses to return people’s cars until they pay all the fines and fees the city claims they owe. And the ordinance does nothing to help those already victimized by the impound scheme, including those whose vehicles have been destroyed. But the city did not adopt those recommendations, requiring IJ’s class-action lawsuit to press on.

Institute for Justice Attorney Diana Simpson said, “We are encouraged to see these necessary changes to Chicago’s impound program. But these changes do not address all of the constitutional problems that forced our clients to sue. For instance, Chicagoans must still prove their own innocence, a notion that flips due process on its head. We will continue our suit to vindicate the rights of Chicagoans and make whole those already victimized.”

South Side Pitch Business Competition Moves Online this Fall

CHICAGO—South Side Pitch, the annual business pitch competition, will move online this fall in order to continue highlighting South Side entrepreneurs. The application period is now open and aspiring entrepreneurs can visit www.southsidepitch.com/apply for contest details and to apply. Since its inception, the Institute for Justice Clinic on Entrepreneurship-hosted competition has been a powerful demonstration that the South Side is home to inspirational individuals determined to improve their lives and their community.

“While 2020 has been a challenging time to run or launch a business, we know that there are many entrepreneurial South Siders who see the year’s challenges as opportunities,” said Beth Kregor, the 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 their efforts even if we cannot host the competition in front of a live audience. We hope that by going online this year, even more people across Chicago and around the world can see the dynamism of the South Side on display.”

South Side Pitch allows promising 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.

South Side Pitch welcomes entrepreneurs past the idea stage—established businesses with a track record of serving customers —to apply. In the semifinals, a group of applicants will be invited to submit a one-minute video. Finalists from that pool will have the opportunity to present online in November. The application period for South Side Pitch is now open and will close on August 24.

Prior winners have used their prizes to expand their businesses and create new jobs. Last year’s first-place winner, Dinobi Detergent, used their prize money to increase their marketing efforts and invest more in their product. Since winning, their product 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.

Institute for Justice Asks S.C. Supreme Court to Strike Down Civil Forfeiture Laws

Civil forfeiture is one of the biggest threats to property rights in South Carolina. It allows law enforcement to take cash, cars, homes and other property from South Carolinians without so much as charging —let alone convicting—the owner with a crime and then profit from the proceeds. Now, the Institute for Justice (IJ)—a nonprofit, public interest law firm—is representing a property owner in an ongoing forfeiture lawsuit to ask the South Carolina Supreme Court to end the controversial practice once and for all.

Last year, prosecutors seized and then tried to permanently take Travis Green’s money. The judge in that case asked both parties to address whether South Carolina’s forfeiture statutes pass muster under the federal and state constitutions. After hearing both sides, the judge ruled that those statutes violate people’s rights to due process and to be free from excessive fines. As a result, the judge concluded that officials couldn’t try to forfeit Green’s or anyone else’s money in his judicial circuit. Prosecutors quickly appealed to the South Carolina Supreme Court, which prompted the Institute for Justice to get involved.

The judge made the right call in striking down South Carolina’s forfeiture statutes. Under those laws, prosecutors don’t have to prove owners did anything wrong. Instead, once they show probable cause that the owner’s property is somehow connected to a crime, the owner must prove his or her own innocence. That can take months, even years, since South Carolina doesn’t give owners prompt hearings. Unsurprisingly, that delay leads many owners to give up or settle with police and prosecutors for pennies on the dollar.

“It’s bad enough that under South Carolina’s civil forfeiture laws, owners must prove their own innocence or lose their property forever,” said Dan Alban, senior attorney at the Institute for Justice and counsel for respondents in Jimmy Richardson v. $20,771. “But it’s even worse when the government doesn’t even have to give those owners their day in court.”

But the most pernicious aspect of South Carolina’s forfeiture system is that when police and prosecutors prevail, they 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.

A recent series of articles in the Greenville News shows how, in just three years, South Carolina law enforcement agencies seized and kept more than $17 million from citizens. As the reporting by the News’ Nathaniel Cary indicates, this isn’t the result of pulling over a few kingpins: Over half of cash seizures are for less than $1,000, and one-third involve less than $500. To pull in that cash, South Carolina law enforcement agencies have organized large-scale events like “Operation Rolling Thunder,” where they give trophies to the officers who seize the most property. And those agencies have spent forfeiture proceeds in questionable ways: One sheriff spent over $11,000 to send himself, his chief deputies and their wives on an all-expenses paid trip to Reno, Nevada. Another officer decided he wanted to keep the Ford Raptor he seized as his official car, so he spent an additional $20,000 in forfeiture funds to pay off its loan.

“Recent reporting has exposed the terrible, real-world consequences of South Carolina’s forfeiture laws,” said Robert Frommer, a senior attorney at the Institute for Justice. “The ‘eat what you kill’ financial incentive these laws create causes officials to violate people’s constitutional rights by treating them like ATMs.”

South Carolina’s forfeiture laws also undermine official accountability. The law requires that forfeiture proceeds be put into accounts dedicated exclusively to seizing and forfeiting agencies. Those agencies typically don’t have to ask anyone for permission before they spend the money in those accounts. And since agencies don’t need to report to the state 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.

“Increasingly, law enforcement agencies have come to rely on fines, fees and forfeitures to fund themselves rather than having to answer to elected officials for their budgets,” said Scott Bullock, president and general counsel of the Institute for Justice. “This is not just an ominous trend; it is a dangerous one. We hope the South Carolina Supreme Court establishes that the U.S. and South Carolina Constitutions secure meaningful protections for private property and limit the government’s ability to turn law enforcement agencies into unaccountable revenue generators.”

The Institute for Justice is working with local counsel Alex Hyman of the The Hyman Law Group of Conway, SC.

Nashville Repeals Prohibition on Home-Business Clients

Nashville—The Nashville Metropolitan Council voted early Wednesday morning to repeal the city’s longstanding ban on home businesses that serve customers. Barring an unlikely veto by Nashville’s mayor, Nashville home businesses will soon be allowed six customer visits a day, six days a week. The Institute for Justice and the Beacon Center of Tennessee have been litigating to end Nashville’s client ban since 2017.

“So many of us in Nashville need to work from home,” said Lij Shaw, the lead plaintiff in the lawsuit. Shaw, a Nashville record producer with a soundproof recording studio in his detached garage, was ordered to cease and desist by the city after an anonymous tipster reported him to city code enforcement in 2015. “Letting people work from home will save home studios in Nashville,” Shaw added.

Nashville’s client ban was an extreme outlier. “Residents have a constitutional right to invite people into their homes,” said IJ Attorney Keith Diggs, “and today Nashville joins the overwhelming majority of cities that recognize this.” Home businesses are routinely regulated as “home occupations” under municipal zoning laws, and Nashville was one of the only cities in the country that prohibited home-business clients. The client ban had been enacted in 1998 without any debate or official explanation.

But the home-business reform could sunset in 2023. “Property rights must always be protected, never temporarily recognized,” noted Beacon Center VP of Legal Affairs Braden Boucek, who added that “it should never have been illegal to make music in Music City.” It was widely known that thousands of Nashville residents were safely serving customers in violation of Nashville’s unusual law. But for now, “piano teachers will be able to operate without fear of getting a cease-and-desist from Nashville Codes,” said Boucek.

“My clients are my neighbors,” said Pat Raynor, who is a co-plaintiff in the lawsuit together with Shaw. Ms. Raynor, a widowed hairstylist, was shut down by the city in 2013 even though she was operating under a state-approved “shop license” to cut hair in her home. “I’ve been waiting for this for seven years,” Raynor added, “and I’m glad to see Nashville entering the twenty-first century.”

Shaw and Raynor plan to apply for home occupation permits as soon as the city makes them available. They are consulting with their attorneys on the future of their lawsuit, which is pending in the Tennessee Court of Appeals. Regardless, they will soon be free to work from home.

IJ Releases New Educational Choice Guide To State Constitutions After Espinoza

Arlington, Virginia—After last week’s landmark U.S. Supreme Court ruling in Espinoza v. Montana Department of Revenue, which held that it is unconstitutional to exclude religious schools from private educational choice programs, the Institute for Justice (IJ), which litigated the Espinoza case on behalf of parents, released a 50-state guide to help policymakers in each state better understand the impact of Espinoza in their state. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

“As a result of Espinoza, nearly every state is now free to enact programs that will empower parents to choose the educational environment that works best for their own children, whether those options are public, private or religious,” said IJ Senior Attorney Tim Keller. “This new guide helps policymakers understand how this momentous decision clears the way for robust educational choice programs with the ability to spur the creation of a greater number of educational opportunities for students.”

In Espinoza, the Supreme Court ruled that the Montana Supreme Court violated the federal Constitution when it relied on its state Blaine Amendment to invalidate a tax-credit scholarship program solely because parents could use their scholarships to send their children to religious schools. As Chief Justice John Roberts wrote, “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.” The Espinoza ruling builds on previous Supreme Court decisions that hold that when a government enacts a scholarship program, the benefits only go to schools through the free and independent choices of students and parents. As the Court explained, “[G]overnment support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.”

“It is important to note in the context of Espinoza and earlier school choice U.S. Supreme Court rulings, not one dollar of funds may be spent for a child’s education in a religious school but for the private and independent choice of a parent,” said Keller. “The funds used in school choice programs are used to secure a quality education for each child, not to subsidize any school. This is not the government subsidizing religious schools; choice programs are about giving mostly low-income families access to a high-quality education they could not otherwise afford.”

With this ruling, the Court sharply limits the application of the 37 state Blaine Amendments and ensures that no state, whether it has a Blaine Amendment or not, can exclude parents from choosing religious educational options just because they participate in a private educational choice program. The U.S. Constitution, the Chief Justice wrote, “condemns discrimination against religious schools and the families whose children attend them. They are ‘member[s] of the community too,’ and their exclusion from the scholarship program [in Montana] is ‘odious to our Constitution’ and ‘cannot stand.’”

Although 20 states have already interpreted their Blaine Amendments to allow parents to select religious schools as part of a choice program, most of the remaining 15 states can no longer rely on their Blaine Amendments to prevent parents from choosing the best school for their children. (Two states—Massachusetts and Michigan—will be unaffected by Espinoza).

The IJ guide analyzes each state and provides advice and includes links to model legislation for policymakers who are interested in expanding educational choice in their state.

“This decision is a great opportunity for supporters of educational choice,” said IJ Educational Choice Attorney David Hodges. “We are looking forward to working with policymakers nationwide to enact programs that ensure that no matter where children live or how much money their parents have, they can get access to a good education.”

Missouri Eases Barriers to Work for Ex-Offenders, Expands Out-of-State License Recognition

New legislation signed by Missouri Gov. Mike Parson on Monday will make it much easier for out-of-state workers and 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, according to a report the Institute for Justice, the average license for lower- and middle-income occupations in Missouri requires paying $179 in fees, finishing 348 days of training and experience, and passing one exam.

In order to ease these barriers to work, under HB2046 anyone who has had an out-of-state license for at least one year can apply for an equivalent license in Missouri. Sponsored by state Rep. Derek Grier, the new law also repeals provisions that greatly limited the effectiveness of the state’s prior license recognition: It scraps a requirement that only allowed recognition to licenses with “substantially similar” requirements as well as a provision that enabled licensing boards to deny waivers based on a vague belief that granting a license to an out-of-state worker would “endanger the public health, safety, or welfare.”

HB 2046 follows in the footsteps of Arizona which became the first state to enact universal recognition for out-of-state licenses last year. But unlike the Arizona law, Missouri’s license recognition doesn’t impose a residency requirement on newcomers, letting out-of-state licensees apply for a new Missouri license before they move.

“Workers don’t lose their job skills just by moving across state lines, but licensing laws often treat them as if they do,” said Institute for Justice Legislative Counsel Meagan Forbes. “HB 2046 is a common-sense reform that will help expand economic opportunity by making it easier for people to move to Missouri to further their careers.”

HB 2046 also contains the Fresh Start Act, which will ease many licensing restrictions that block otherwise qualified ex-offenders from working. Today, roughly one in three Americans has a criminal record of some kind, while in 2018 alone, almost 20,000 people were released from prison in Missouri.

Under HB 2046, boards will now be required to consider evidence of rehabilitation and must bear the burden of proof that an applicant’s criminal record “directly relates” to the license sought. The new law also creates 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. Although HB 2046 is a substantial improvement, it doesn’t apply to multiple licensing boards, including those governing teachers, medical and white-collar professions.

Previously, Missouri had some of the weakest protections for ex-offenders seeking licenses to work, according to a new report by the Institute for Justice, Barred from Working. But thanks to HB 2046, the state’s grade has soared from a D- to a B-, which places Missouri among the top 10 best states nationwide. With this reform, Missouri is now the 32nd state that has 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. “HB 2046 will eliminate many licensing barriers that have little basis in common sense and unfairly deny a fresh start to countless Missourians.”

Maine’s High School Tuitioning Program is Clearly Unconstitutional Under New Supreme Court Precedent

Arlington, Va.— The Institute for Justice (IJ) and First Liberty Institute (FLI) filed a notice of supplemental authority with the 1st U.S. Circuit Court of Appeals asking it to rule in favor of parents who challenged Maine’s high school tuitioning program. The three families, who filed suit nearly two years ago, would like to choose religious schools but are barred by state law. Yesterday’s ruling in Espinoza v. Montana, also an IJ case, held that a similar restriction against choosing religious schools is unconstitutional under the First Amendment.

“The decision in Espinoza means that Maine’s exclusion of sectarian schools must be struck down,” said IJ Senior Attorney Tim Keller. “The Chief Justice could not have been clearer: While a ‘State need not subsidize private education . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’”

Keller continued, “Maine’s town tuitioning program currently permits families who reside in towns that do not have their own public schools to receive tuition to attend the public or private school of the parents’ choice, unless the private school is religious. Excluding religious schools from the array of options open to Maine parents who receive the tuition benefit, simply because they are religious schools, is now clearly unconstitutional.”

Based on an earlier appeals court precedent, United States District Court Judge D. Brock Hornby ruled against the parents in June 2019. In January 2020, the 1st U.S. Circuit Court of Appeals heard oral argument in the appeal of that decision but has yet to issue a ruling in the case. Yesterday’s filing, known as a 28(j) letter, asks the appeals court to consider their ruling in light of the new precedent established yesterday.

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 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.

Governor Signs Bill Making It Easier for Floridians to Work

Tallahassee, Fla.— Thousands of Floridians will find it easier to work now with Gov. Ron DeSantis signing HB 1193, the Occupational Freedom and Opportunity Act. The historic law repeals more occupational licensing laws than any licensing reform ever passed by any other state. The Institute for Justice (IJ), which advocates for licensing reform nationwide, applauds the governor and legislators on a well-timed move that should have lasting effects on workers in the Sunshine State.

“The outlook for jobs and entrepreneurship is brighter in the Sunshine State today,” said IJ Florida Office Managing Attorney Justin Pearson. “Now is the time to clear away the red tape that has stood in the way of Floridians looking for new opportunities. That is precisely what this much-needed reform does.”

All told, the new law either repeals or reforms over 30 licenses, including by reducing required educational hours for certain licenses. Highlights of the bill include:

  • Waiving the requirements of the Commercial Driver License for military service members with similar training and experience.
  • Exempting all hair braiders (including African-style hair braiders), nail polishers, hair wrappers, body wrappers, makeup artists, boxing announcers and boxing timekeepers from being required to obtain a license.
  • Creating universal recognition for barbers and cosmetologists licensed in other states.
  • Reducing required educational hours for cosmetology specialists and full barbers’ licenses.
  • Reforming, reducing or narrowing licensing requirements for landscape architects, diet coaches, certain types of construction subcontractors, alarm system installers and geologists.
  • Preventing the state from suspending licenses over unpaid student loans.

The law also includes a provision preventing Florida cities from banning food trucks or requiring operators to obtain an additional local license or pay additional fees in order to vend. Florida is the third state to create such a law, following in the steps of California and Arizona.

One reform IJ sought for nearly a decade was included: eliminating the interior design license. In 2009, three women filed a federal lawsuit with IJ challenging the constitutionality of the license, which required six years of education and experience and a two-year apprenticeship. Florida was one of only six states to license the occupation. Our suit didn’t eliminate all the requirements, but it did highlight the burdens of licensing. The required license has been replaced with a simpler registration requirement that allows registrants to offer more services.

“There was little reason for Florida to set such a high bar when most states didn’t require any license to be an interior designer,” said Eva Locke, one of the women involved in the lawsuit. “This has been a long time coming, and I am glad to see that our fight finally resulted in sensible reform. Interior design will now be open to many Floridians who lacked the resources and time to work through all the requirements.”

According to IJ research, Florida had much room for improvement in comparison to other states. The 2017 edition of “License to Work” found that Florida had the fifth most burdensome licensing laws in the nation. For instance, the state required African-style hair braiders to acquire a full cosmetology license, even though most cosmetology schools do not teach braiding.

There is also the potential for the reform to create substantial economic and job growth. The 2018 IJ study “At What Cost?” found that more than one in five Floridians require a license to legally work and estimated that Florida loses nearly 130,000 jobs annually because of its high licensing burden. A conservative measure of the economic value lost due to these regulations totaled nearly $460 million. All told, because of licensing, the Florida economy may lose $11.6 billion in “misallocated resources” annually.

“Especially now during the pandemic, states need to lower the barriers that keep people out of the workforce or discourage entrepreneurship,” said IJ President and General Counsel Scott Bullock. “Florida’s reform will fuel economic growth and open up opportunity to entry-level entrepreneurs throughout the state.”

Landmark Victory for Parents In U.S. Supreme Court School Choice Case

Arlington, Virginia—In a landmark 5-4 ruling, the U.S. Supreme Court ruled today that a state court may not strike down a school choice program simply because it permits families to choose religious schooling. In Espinoza v. Montana Department of Revenue, the Court held that barring religious options in school choice programs violates the First Amendment’s protections for religious liberty. School choice programs must be neutral regarding religion and allow families to choose the educational placement that works best for their families.

“The Supreme Court delivered a major victory to parents who want to choose the best school for their children, including religious schools,” said Institute for Justice Senior Attorney Erica Smith, who was co-counsel on the case. “This is a landmark case in education that will allow states across the country to enact educational choice programs that give parents maximum educational options.”

The case began in 2015 when the Montana Legislature passed a tax-credit scholarship program that enabled taxpayers to receive a $150 tax credit in exchange for donating to nonprofit scholarship organizations. These scholarship 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. The Montana Supreme Court struck down the program in its entirety because it permitted families to choose religious options in violation of the state’s Blaine Amendment—a provision initially enacted in the late 1800s to discriminate against Catholic schooling. IJ appealed the case to the Supreme Court on behalf of its three clients, including lead plaintiff Kendra Espinoza, a single mother and one of the beneficiaries of the tax-credit program.

“I am thrilled that the courts ruled in favor of the Constitution and maintained a parent’s right to choose where their children go to school,” said Espinoza. “For our family, this means we can continue to receive assistance that is a lifeline to our ability to stay at Stillwater. For so many other families across America, this will potentially mean changing lives and positively altering the future of thousands of children nationwide. What a wonderful victory.”

The win and the promise of continued scholarships is a significant boost to Kendra, who has had to work multiple jobs, including cleaning houses and doing janitorial work, to afford her daughters’ tuition payments at a private Christian school in Kalispell. Kendra transferred her two daughters to Stillwater Christian School after they struggled in their public school. Montana’s scholarship program has helped Kendra and families across the state keep their children in the school that works best for them.

In a decision written by Chief Justice John Roberts, the Court held that Montana engaged in religious discrimination when it applied the state’s Blaine Amendment to bar religious options in educational choice programs. It also held that Montana did not cure this discrimination when it struck down the entire scholarship program, including for children attending nonreligious schools, to prevent children attending religious schools from receiving scholarships.

As the Court said, “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.”

The ruling also stated: “Drawing on ‘enduring American tradition,’ we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children. . . . Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution.”

“It’s been a century-and-a-half since the bigoted Blaine movement took root in state constitutions throughout the country,” said IJ Senior Attorney Richard Komer, who argued the case before the Court. “Today’s decision shows that it is never too late to correct an injustice, even one with as long and ignoble a pedigree as this one.”

Today’s decision will affect most of the 14 states that have strictly interpreted their state constitution Blaine Amendments to bar scholarships to children at religious schools. For decades, the creation and expansion of school choice programs have been inhibited by legislative concerns that they might conflict with state constitutions. Those concerns are now removed with today’s decision in Espinoza.

“We are so proud of what the Institute for Justice and our clients have accomplished in Espinoza,” said IJ President and General Counsel Scott Bullock. “Today’s decision is a great win for IJ, and an even greater win for the millions of families who may now be able get the education that works best for them.”

Lawsuit Challenges Ca. Funeral Directors’ Monopoly on End-of-Life Care

For many, talking about dying is—unfortunately—a taboo subject. So, as someone nears the end of their life, getting answers and finding support can be difficult. That’s what end-of-life doulas do—they help families plan and care for someone transitioning from life to death. From helping families plan for the day that someone passes away, to providing emotional and practical support to the dying person and their family along the way, doulas offer a set of unique services rooted in a holistic approach to life and death.

But don’t tell that to the regulators in the California Cemetery and Funeral Bureau (CCFB), which—to preserve the funeral director monopoly on end-of-life services—have cracked down on retirees Akhila Murphy and Donna Peizer, two Sacramento-area end-of-life doulas who operate a tiny nonprofit called Full Circle of Living and Dying.

In November 2019, the CCFB responded to an anonymous complaint and ruled that Akhila and Donna were engaging in the illegal act of running a funeral establishment without a state-issued funeral-home license. The CCFB said that to continue to help families, Akhila or Donna must obtain a state-issued funeral director’s license, and that Full Circle must operate a full-service funeral home, capable of storing and embalming bodies, neither of which Akhila or Donna do.

Without the time, financial resources or desire to obtain the burdensome license and build a funeral home, Akhila and Donna faced a choice: Either they could shut down Full Circle or fight back. They choose the latter.

Today, Akhila and Donna—along with the Institute for Justice (IJ) and a group of families who want Full Circle’s services—filed a federal lawsuit to vindicate their right to help those approaching the end of their life.

“The Funeral Bureau is silencing free speech and interfering with the ancient right to hold a funeral in a private home,” said Jeff Rowes, a senior attorney at IJ. “California cannot force end-of-life doulas to become funeral directors to carry out their labor of love: providing compassion and guidance to the dying and their families.”

Unlike funeral directors, whose primary set of responsibilities is focused on the physical transportation or embalming of a recently deceased body, end-of-life doulas offer families experience and peace of mind throughout the entire process, both before and after death. Part of their post-death work involves helping families hold their own funeral in a private home. Home funerals are legal in all 50 states because they are safe and simple. The remains of a deceased person present no public-health risk in the hours and days following death.

Families are increasingly opting for home funerals for a variety of reasons: to care for their loved one personally, to honor the deceased in the familiar comforts of a private home or to observe religious customs, such as the Catholic Wake or Jewish Shemira. Once the home funeral is over, Akhila and Donna rely on a licensed funeral director to take the remains for final disposition.

“The goal of Full Circle of Living and Dying has always been to create a community that fully understands options and rights in death and dying. We advocate for the dying and empower families and communities to bring back the tradition of family-led death care through conversation, guidance, education and local resources,” said Full Circle Co-Founder Akhila Murphy. “We asked the Bureau for an explanation of what we did wrong. They told us to get our own lawyers if we wanted to know. That’s when we teamed up with IJ to defend our rights and the rights of consumers to know all their options in end-of-life care.”

Akhila, Donna and the other end-of-life doulas that work at Full Circle have a constitutional right to provide advice and aid to families in mourning a loved one. Specifically, the First Amendment protects the right of Americans to speak, and the Supreme Court has held that providing advice or instruction is protected speech. Earlier this month, in fact, a federal appeals court ruled that a Sacramento-area vocational school represented by IJ had a First Amendment right to teach students, regardless of their educational background. The Constitution also requires that governments have a legitimate reason for denying Americans their right to earn an honest living. Here, the government’s only interests appear to be blind economic protectionism for funeral directors and bureaucracy for its own sake.

“Akhila and Donna represent a movement that helps families experience the process of dying and death in a way that is unfamiliar to many now, but has been part of American culture since the founding,” said IJ Constitutional Law Fellow Adam Griffin. “This resurgence of interest in home funerals led the CCFB to overreact wildly, trying to shut down Full Circle to protect the funeral industry from the options that end-of-life doulas offer consumers. That is unconstitutional, and we will vindicate our clients’ rights.”

House of Representatives Votes to End “Qualified Immunity” for Police

In a historic vote, the U.S. House of Representatives voted on Thursday to pass the George Floyd Justice in Policing Act, which would end “qualified immunity” for state and local police officers as well as federal agents. 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 the statute (Section 1983) that authorizes civil rights lawsuits against government agents. Thursday’s vote marks the first time in years that a chamber of Congress has voted to restrict qualified immunity under Section 1983.  

“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 Senior Attorney Robert McNamara. For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. It’s encouraging to see Congress is finally taking steps to fix this pernicious mistake by the Supreme Court.”

Long an obscure legal rule, qualified immunity—and calls for its removal or reform—has become increasingly prominent in the wake of the killing of George Floyd by Minneapolis police officers. Last week, the U.S. Supreme Court refused to hear eight separate cases that involved qualified immunity. Justice Clarence Thomas was the only justice who dissented from this refusal, writing that he has “strong doubts” about the doctrine. 

Although several Senate Republicans (along with President Trump) have called ending qualified immunity a “non-starter,” one of their colleagues has offered a compromise between full abolition and preserving the abusive status quo. 

On Tuesday, Sen. Mike Braun (R-IN) introduced the Reforming Qualified Immunity Act, which, unlike the Justice in Policing Act, would not completely eliminate qualified immunity. Instead, under the Braun bill, officers could only be shielded if their conduct was “specifically authorized or required” by federal or state law, or if a court had previously ruled that their conduct was constitutional. Critically, the Braun bill would not permit officers to use “clearly established law” as a defense, which has long shielded some of the doctrine’s most egregious abuses.

Sen. Braun’s bill is now the third bill targeting qualified immunity introduced this month, joining the Justice in Policing Act, as well as the End Qualified Immunity Act, sponsored by Rep. Justin Amash (L-MI). The Braun bill, like the Amash bill, would apply to all local and state government employees, including prison guards, county clerks, public school administrators, and municipal and state employees. In contrast, the Justice in Policing Act is limited to law enforcement officers, though only the Justice in Policing Act addresses federal agents.

“All three bills would mark significant improvements over the status quo,” noted IJ Attorney Patrick Jaicomo. “Any police reform bill is only meaningful if it includes reform to qualified immunity.” 

Curiously, the Justice in Policing Act would preserve a damaging loophole in civil-rights litigation. Unlike lawsuits against state and local officials, which are expressly authorized by Section 1983, there is no federal law that authorizes similar lawsuits against federal agents. As a result, individuals who have had their rights violated by a federal officer must instead bring a Bivens claim, named after a 1971 Supreme Court decision. 

Unfortunately, in the years since the Supreme Court sharply limited Bivens, so it only applies to a handful of constitutional rights today. Just this past February, the court rejected a Bivens claim filed by the parents of Sergio Hernandez, a 15-year-old boy who was tragically killed by a U.S. Border Patrol agent. So even though the Justice in Policing Act would end qualified immunity for state, local, and federal law enforcement, since it does not amend Section 1983 to cover lawsuits under federal law, it still would not have helped Hernandez’s family in their civil rights lawsuit. 

“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 are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”

Barred from Working: People with Criminal Records Are Unfairly Denied Licenses to Work

Arlington, Va.—Even as states debate opening the economy back up, millions of Americans with criminal records are still locked out of the job market. Today, nearly one in five workers needs a license to work, while one in three Americans has a criminal record of some kind.

Providing the most in-depth and up-to-date look at this intersection between occupational licensing and the criminal-justice system, a new report from the Institute for Justice (IJ), Barred from Working, analyzes and grades the legal protections offered to ex-offenders who apply for licenses to work.

Many state laws fail to make the grade: just nine states received a B- or better. Indiana ranked as the best state in the nation, earning the report’s only A grade. Meanwhile, six states—Alabama, Alaska, Nevada, Rhode Island, South Dakota, and Vermont—all tied for dead last due to their utter lack of protections for former felons seeking licenses.

“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. “Undoubtedly, some license restrictions make sense: No one wants child molesters working in daycare centers or school bus drivers with DUIs. But as this report shows, many licensing barriers have little basis in common sense or public safety and unfairly deny a fresh start to countless Americans.”

Grading all 50 states and the District of Columbia across 10 different criteria, Barred from Working identifies numerous methods that states use to block licenses to otherwise qualified individuals:

  • Nine states let boards disqualify applicants on the basis of any felony, even if it’s completely unrelated to the job at hand.
  • In 21 states, boards are free to deny licenses without ever considering whether an applicant has been rehabilitated.
  • In more than 30 states, applicants with criminal convictions can be denied licenses based on their perceived “good moral character” or “moral turpitude,” vague terms that let boards act capriciously. For instance, IJ is currently challenging a Pennsylvania law that requires “good moral character” for licensed cosmetologists, but not for licensed barbers.
  • Boards in 34 states can disqualify applicants for past arrests that didn’t result in a conviction, a practice that subverts the presumption of innocence.
  • Ex-offenders also face a staggering lack of due process during the application process. In 12 states, applicants have no guaranteed right to appeal a board’s decision, nor are boards required to issue their decisions in writing. And just two states—Indiana and Mississippi—expressly require licensing boards to bear the burden of proof when considering if an applicant’s criminal record is “directly related” to the license at hand.

Barred from Working is the latest salvo in IJ’s fight for second chances. On Friday, IJ filed a lawsuit on behalf of Dario Gurrola, who first fought fires at a juvenile-detention fire camp in California, but can’t work as a full-time firefighter because of his criminal record. Last month, IJ submitted comments to the Small Business Administration, urging that it drop criteria that unfairly excluded many entrepreneurs with criminal records from Covid-19 loan relief; some of those rules have since been loosened.

IJ has also developed model legislation to eliminate licensing barriers for ex-offenders and helped secure recent reforms in Arizona, Nebraska, New Hampshire, North Carolina, Idaho, and Utah. Nationwide, 30 states have enacted reforms since 2015, with further reforms pending in six states.

Fighting for a Fresh Start, California Man Sues State for Right to Firefighting Career

Sacramento, Calif.—If California trains inmates to fight fires, why does it stop them from becoming full-time firefighters after their release? With a shortage of firefighters in rural areas and fires an increasing threat, why are qualified applicants rejected out of hand because of old, irrelevant crimes? Now a California man is challenging a rule that keeps him from making a fresh start by serving the public.

Dario Gurrola first fought fires at a juvenile-detention fire camp run by the state. After being released and deciding to turn his life around, he started to work as a seasonal firefighter. Finding the work satisfying and knowing that there are open jobs in California, Dario completed firefighting training, EMT training and passed the national EMT exam. But even though he is allowed to work as a seasonal or volunteer firefighter, by state law he is legally barred from emergency medical technician (EMT) certification, a requirement for full-time firefighting jobs. Now, Dario is teaming up with the Institute for Justice (IJ) to challenge California’s lifetime ban on two-time felons applying for the state EMT license.

“Fires are an increasing threat to California, yet the state unjustly denies thousands of people the opportunity to become full-time firefighters,” said IJ Attorney Andrew Ward. “Dario served his time and now he wants to serve the public using the skills he learned while incarcerated. The EMT certification is a basic qualification proving knowledge of life-saving skills. Dario proved himself working part time in the field and it’s past time that he, and others like him, can serve as full-time firefighters.”

“I am dedicated to serving my community and my state by using the some of the same skills I learned while incarcerated,” said Dario. “It doesn’t make any sense that I’m allowed to be a firefighter if I work seasonally, or if I volunteer, but can’t make a career out of firefighting. I’m sure there are many others, just like me, who have turned their lives around and would like to give back. I hope my lawsuit will open this door for me and for people across California.”

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 practice in a diverse variety of careers.

Most California fire departments require applicants for full-time positions to first be certified as an EMT. However, volunteer and seasonal positions do not require the certification even though the tasks performed are often identical to those of full-time firefighters. Dario is employed as a seasonal firefighter by the Cal-Pines Fire Department. He would prefer to apply for one of the many open positions for full-time work but cannot because he has two felonies on his record. In 2003, he was convicted of a felony for illegally carrying a hidden knife, which he kept for protection. And in 2005, while under the influence of drugs and alcohol, he got into a fight with a security guard and was convicted of felony assault.

Dario was one 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 his release, Dario started working for the U.S. Forest Service and only found out about the felon ban after he completed the fire academy and all of the training and testing requirements EMT certification.

“It makes no sense that these men and women can serve as seasonal or volunteer firefighters but can’t become career firefighters,” said IJ Attorney Joshua House. “More broadly, there is a growing consensus that harsh laws like this one aren’t working—for those looking for a fresh start after prison and for the public. A categorical ban on obtaining EMT certification needlessly excludes thousands of qualified individuals from an array of jobs that they could use to support themselves and to serve the public. In this case particularly, California is poorly served by reducing the number of firefighters.”

Proposed Reforms of Chicago’s Impound Program Are “Strong First Step,” But More Must Be Done

CHICAGO—In the spring of 2019, the Institute for Justice, a non-profit, public interest law firm launched a class action lawsuit against Chicago’s impound scheme. The lawsuit challenges the city’s impound scheme in three areas: It imposes unconstitutionally excessive fines by subjecting owners to fines for crimes they did not commit; it violates due process; and it holds cars as ransom until the owners pay all fines and fees the city demands. The lawsuit was also brought by five car owners, each of whom had their vehicle confiscated for offenses for which they were not responsible.

Institute for Justice Attorney Diana Simpson released the following statement in response to Mayor Lori Lightfoot’s proposed reforms to the impoundment program:

“The mayor’s proposed reforms are a strong first step to improving the city’s impound racket that ensnares tens of thousands of Chicagoans each year. People whose cars are towed face a bureaucratic maze and often must fork over thousands of dollars in an effort to get their cars back. The scheme violates the U.S. and Illinois constitutions in myriad ways, and it is gratifying to see the mayor introduce measures to improve the system. Her proposed ordinance extends greater innocent owner protection and reduces fines and fees, both of which are sorely needed.

“Unfortunately, her proposed ordinance does not go far enough to right the wrongs of the city’s impound scheme. It still does not fix the burdensome and confusing system that owners must traverse to get their cars back. The city still unconstitutionally ransoms people’s cars, refusing to release them until owners have paid all fines and fees that might be due—even without a judge finally determining the car was properly impounded. And the reforms do nothing to help most people who have already been victimized by the impound program, including those whose cars the city has destroyed. We hope the legislative process will address these remaining issues. Regardless, we brought our case to vindicate the rights of Chicagoans, and we will not stop until everyone is protected from having their cars unjustly impounded.”

Memphis Residents File Lawsuit Against Shelby County Environmental Court for Affording No Real Due Process 

Memphis, Tenn.—It is not an exaggeration to say that the Shelby County Environmental Court ruined Sarah Hohenberg’s life. In 2009, a tree fell on her home causing significant damage. While she tried to get her insurance to pay for repairs to her home, Ms. Hohenberg’s neighbors sued her in the Environmental Court. The court’s multi-year proceedings left her without a home, without her possessions, bankrupt, and a fugitive from the law.

Today, she and Joseph Hanson, another person sued in the Environmental Court, are filing a lawsuit in the U.S. District Court for the Western District of Tennessee against the Environmental Court with the Institute for Justice (IJ) to ensure that all courts provide meaningful and strict procedures in cases involving occupied homes.

“The Shelby County Environmental Court proceedings involving occupied homes do not come close to meeting the standard required by the U.S. Constitution,” said IJ Senior Attorney Bill Maurer. “A courtroom that does not verify evidence, hear testimony under oath, transcribe its proceedings or keep records is no court at all.”

In 2004, the Tennessee Legislature passed the Neighborhood Preservation Act (NPA), a law that allows private and government entities to sue to enforce municipal code provisions. In Shelby County, cases brought under the NPA are heard in the Environmental Court, formally known as the Division 14 of the Shelby County, Tennessee, General Sessions Court, Criminal Division, which was originally established in 1983. In 2016, the Tennessee Legislature amended the NPA to allow suits against occupied homes. Even before then, however, the Environmental Court heard cases involving occupied property, including Ms. Hohenberg’s case.

During the proceedings against Ms. Hohenberg, the Environmental Court ordered her to sign a quit-claim deed so the house could be auctioned off to the highest bidder. She refused to sign the deed. The Environmental Court issued an order of contempt and arrest. Fearing that jail would kill her in her fragile physical state, she fled to stay at a hotel in Mississippi. The Environmental Court then ordered her personal possessions to be removed from the house. Since she was too ill to move her possessions herself, and too poor to hire someone to do it for her, the city of Memphis placed her possessions in the street, where her furniture, personal possessions, financial records and papers were either carried away or lost.

“My home, everything I had, is now gone. And there’s no record of why it was taken away,” Sarah Hohenberg said.

In the Environmental Court, private plaintiffs or Memphis code enforcers present unsworn, unauthenticated information about defendants’ homes. Neighbors testify against a defendant by being called upon in the audience and asked to stand and speak. Anyone wishing to review what happened in a case against them is typically out of luck—many case files are lost, destroyed or may not have been created in the first instance. While defendants are technically able to appeal Environmental Court decisions, there is no record, evidence or transcripts for an appellate court to examine. Put another way, defendants have the right to appeal in name only.

“The Environmental Court destroyed Sarah Hohenberg’s life. By the time the Environmental Court was finished with her, she was bankrupt, homeless, stripped of her possessions and a fugitive from the law. This complete lack of due process is unconstitutional and a disgrace,” said IJ Attorney Rob Peccola.

Plaintiff Hanson, like Ms. Hohenberg, lost his home in Environmental Court proceedings after a tree fell on it. Despite no testimonial or evidentiary basis, the Environmental Court jailed Mr. Hanson numerous times, bulldozed his home and destroyed his possessions. He, too, is now homeless.

“Joseph Hanson’s home was searched by the city of Memphis without his permission and the city used the evidence it found there to bulldoze his home and destroy his possessions,” said IJ Attorney Keith Neely. “Mr. Hanson was jailed multiple times and lost his home just because a neighbor’s tree fell on it. His story is not unique, and it can happen to anyone in Memphis unless the court answers for its lawlessness.”

This lawsuit will ensure that Memphis residents no longer have to be at risk of depleting all of their finances and becoming homeless based on decisions from an unaccountable court when disaster strikes, and will ensure that housing courts around the country maintain adequate procedural protections for homeowners.

Supreme Court Refuses to Hear Cases Challenging Qualified Immunity

Arlington, Va.—The U.S. Supreme Court today refused to hear eight separate cases that had presented opportunities to reconsider its doctrine of “qualified immunity.” That doctrine, created by the Supreme Court in 1982, holds that government officials can be held accountable for violating the Constitution only if they violate a “clearly established” constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.

“Qualified immunity means that government officials can get away with violating your rights as long as they violated them in a way nobody thought of before,” explained Institute for Justice (IJ) Attorney Anya Bidwell. “And that means that the most egregious abuses are frequently the ones for which no one can be held to account.”

Qualified immunity has come in for harsh criticism from the left and the right alike. And the outrageous facts of the cases rejected today help illustrate why: In them, lower courts had granted immunity to a group of officers who took an Idaho mom’s consent to “get inside” her home as consent to stand outside, bombarding it with tear-gas grenades; to Texas medical regulators who showed up at a doctor’s office and, without warning or a warrant, rifled through confidential patient files; and to a deputy sheriff who (while in pursuit of an unrelated, unarmed suspect) held a group of young children at gunpoint and then shot a ten-year-old in the leg while firing at a non-threatening family pet.

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said IJ Senior Attorney Robert McNamara, who was counsel of record in West v. Winfield, one of the cases denied review today. “It is past time for the Supreme Court to admit as much and start expecting government officials to follow the Constitution.”

The Court’s rejection of the petitions was not unanimous. Justice Clarence Thomas issued a dissent in the longest-pending petition, Baxter v. Bracey, calling for the Court to reevaluate the doctrine entirely: “I continue to have strong doubts about our §1983 qualified immunity doctrine,” Justice Thomas’s dissent concludes. “Given the importance of this question, I would grant the petition for certiorari.”

The drumbeat of voices calling for an end to qualified immunity and a return to basic government accountability has only grown louder in the wake of the killing of George Floyd by Minneapolis police officers. Articles in outlets ranging from USA Today to Fox News Channel to the New York Times editorial page all pointed to the slaying as a symptom of a broader culture of official impunity and called upon the Supreme Court to rethink its qualified immunity rules. Today’s decision means those cries will, at least for now, go unanswered.

“There is no shortage of outrageous qualified immunity cases for the Supreme Court to take,” said IJ Attorney Patrick Jaicomo. “It has refused to hear a case this year, but it can only avoid the issue for so long. The skewed incentives of qualified immunity guarantee that lower courts will continue to generate more examples of injustice, and we will keep bringing those examples back to the courthouse steps until we break through.”

The Institute for Justice, through its Project on Immunity and Accountability, actively litigates to remove barriers to meaningful enforcement of constitutional rights. Today’s decision denied review in one of IJ’s Immunity and Accountability cases, but a second, Brownback v. King, has already been granted review and will be heard by the justices next term. A third case, brought on behalf of a Colorado family whose home was destroyed by police in pursuit of a suspect who had no connection to them, will be considered later this month.

“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 are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”

Montana Doctors File Lawsuit Challenging State’s Ban on Doctors Dispensing Medications to Their Patients

ARLINGTON, Va.—In almost every state, when you get sick and visit your doctor, you can obtain prescribed medications right there in the doctor’s office—a practice known as “doctor dispensing.” But not in Montana, which bans most doctors from dispensing medications. Dr. Carol Bridges, Dr. Cara Harrop and Dr. Todd Bergland want to use doctor dispensing to improve care and save patients money. Today, they partnered with the Institute for Justice (IJ) to file a lawsuit in Missoula County District Court challenging Montana’s ban on doctor dispensing.

This ban isn’t about patient safety; it’s about protecting the profits of pharmacies. Montana doctors are banned from dispensing medications unless they meet one of several, often vague exceptions. Relevant exceptions include dispensing samples, dispensing “occasionally,” dispensing in an “emergency,” or dispensing when the doctor works over 10 miles from the nearest pharmacy. The result: pharmacies can dispense an unlimited supply of medications whenever they like, while doctors—unless they work far enough away from pharmacies—are largely banned from offering patients the medications they need.

“As a family doctor, one of my first priorities is ensuring my patients get the treatment they need to start feeling better,” said Dr. Bridges. “Dispensing medications in my office, at cost, is one simple way to do that. This law just makes it harder for me to do my job.”

Montana’s ban on doctor dispensing is the exception nationally, not the rule. In 44 states and the District of Columbia, doctor dispensing is legal and most doctors report doing it. Because they work in Montana, however, Dr. Bridges, Dr. Harrop and Dr. Bergland could be fined and even lose their medical licenses for attempting to dispense medications to their patients, simply because they work too close to pharmacies.

Research shows that doctors and pharmacies are equally safe when dispensing medication and that making routine medications more accessible can increase patients’ adherence to their prescribed treatment.

“Our clients just want to dispense routine medications to their patients at cost,” said IJ Attorney Joshua Windham. “This is a safe and effective way to expand access to care. But Montana’s protectionist law stands in their way.”

As other states have repealed similar bans over the past few decades, Montana has kept its ban in place. But there is no reason to think that doctors in Montana are any less qualified than their peers in 45 other jurisdictions to dispense medications. Nor is there any reason to believe that Montana doctors who work near pharmacies are less qualified than their rural peers who fall within the state’s 10-mile exception to the ban.

“As a family physician, most of my patients have relatively straightforward problems like strep throat, allergies, or pink eye,” said Dr. Bergland. “If I’m qualified to diagnose these illnesses and prescribe the right medications—and I am—I’m certainly qualified to hand them to my patients as they walk out the door.”

Montana’s ban is not the only example of one group using the power of government to keep another group from competing in the medical field. In 2019, IJ challenged a similar doctor-dispensing ban in Texas, where doctors are prohibited from dispensing unless they work in certain “rural” areas more than 15 miles from a pharmacy. IJ is also challenging certificate of need (CON) laws for healthcare services in Iowa, North Carolina, Kentucky and Nebraska.

These challenges are made possible by IJ’s other landmark victories. In 2015, IJ struck a blow against unreasonable economic regulations in Patel v. Texas Department of Licensing and Regulation when the Texas Supreme Court struck down the state’s licensing requirements for eyebrow threading. In that case, the court held that economic regulations must further a legitimate public end in a non-oppressive manner. Montana’s ban on doctor dispensing fails that test—it bans a useful service, which hurts patients and doctors, solely to protect pharmacies from economic competition.

“The only reason our clients can’t dispense medications to their patients is that pharmacist groups have lobbied lawmakers to protect their bottom line,” said IJ Attorney Keith Neely. “The Montana Constitution forbids laws that do nothing more than protect the financial interests of established businesses.”

The case was filed in the Missoula County District Court against the Montana Board of Medical Examiners, the Montana Attorney General, and the State of Montana, the parties responsible for enforcing the law.

IJ Scores First Amendment Victory for California Cowboy

ARLINGTON, Va.—In a sweeping victory for free speech, yesterday a federal appeals court ruled that the First Amendment protects teachers’ right to teach as well as students’ right to learn. The three-judge panel’s unanimous decision ruled that California likely violated the constitutional rights of Bob Smith, owner of Pacific Coast Horseshoeing School, by prohibiting him from teaching students how to shoe horses regardless of their past educational achievements. In 2017, Smith partnered with the Institute for Justice (IJ), a non-profit public interest law firm, to challenge the California law that requires vocational students to have minimum educational credentials before being allowed to enroll in a trade school.

“When California started requiring that my students obtain a GED or pass a test, they made it illegal to teach job skills to those who need them most,” said Smith, who has taught horseshoeing to thousands of students over the years. Some of those students had never finished high school—and for students without a high school diploma, horseshoeing offers a clear-cut path to the middle class.

No state restricts the practice of horseshoeing—any Californian may try shoeing horses on their own—and today’s opinion vindicates that California certainly can’t make it illegal to teach horseshoeing

Under California law, people without a high school diploma may not enroll in a private “vocational” school without first taking and passing government-mandated tests—either the GED or a set of tests that gauge a student’s proficiency in math, reading, writing, and other criteria. Because Bob did not require his students to take that test, California threatened to shut PCHS down.

“You don’t have to know algebra to shoe a horse,” said Smith. “You don’t have to know how to read a novel to shoe a horse. Horses don’t do math and horses don’t speak English. It makes no sense to require a high school education to learn a trade that was around for centuries before the printing press came along.”

The Institute for Justice also represented Esteban Narez in the lawsuit. Esteban, who left high school after a football injury and entered the workforce to support himself and his mother, works with horses and applied to PCHS because he knew that he could earn a better living as a farrier. But Bob was forced by the state to reject Esteban’s application.

“Both teaching and learning are protected by the First Amendment,” said IJ Attorney Keith Diggs. “Just like writing a book or making a video is protected by the First Amendment, so is teaching. That doesn’t change just because someone pays tuition or gets paid to teach.”

“Countless Americans earn their living by talking, but governments have long acted like the First Amendment does not apply to such ‘occupational’ speech,” said IJ Senior Attorney Paul Avelar. “The court’s ruling here is the latest IJ case to recognize that the Constitution protects the speech of doctors, diet coaches, technology startups, veterinarians, farrier teachers, and many other Americans.”

The case now returns to the U.S. District Court for the Eastern District of California. Because California is restricting Bob’s and Esteban’s First Amendment rights, the state will have to demonstrate, with real evidence, that its regulations can survive First Amendment scrutiny.

IJ Attorneys Keith Diggs and Paul Avelar are available for interviews via phone or Zoom.

Federal Court Strikes Down Charleston’s Tour-Guide License

Arlington, Va. —This morning, the United States Court of Appeals for the Fourth Circuit ruled unanimously that Charleston, S.C., violated the First Amendment by making it illegal for anyone to give paid tours of the city without obtaining a special license. The ordinance, which was first struck down by a South Carolina trial court in 2018 in response to a lawsuit brought by the Institute for Justice (IJ), had required guides to prove they mastered a 500-page manual recounting the facts city leaders deemed most important. Today’s ruling affirms that the 2018 ruling was correct and that the ordinance violated the First Amendment.

“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 Senior Attorney Arif Panju. “Charleston’s law was unconstitutional because it got that important principle exactly backwards.”

IJ challenged the tour-guide ordinance in 2016 on behalf of three would-be Charleston tour guides who wanted to lead specialty tours that would not require them to memorize every part of the city’s expansive guide. In 2018, the federal district court for the District of South Carolina agreed with the plaintiffs, ruling that Charleston should have tried less-restrictive regulations before leaping to impose burdens on speech.

Today’s ruling agrees: “The Ordinance undoubtedly burdens protected speech,” wrote Judge Robert B. King in the court’s opinion, “as it prohibits unlicensed tour guides from leading paid tours — in other words, speaking to visitors — on certain public sidewalks and streets.” Before the government can burden speech, the ruling continues, it is “obliged to demonstrate that it actually tried or considered less-speech-restrictive alternatives and that such alternatives were inadequate to serve the government’s interest.” Because Charleston could demonstrate no such thing, its ordinance was unconstitutional.

Courts across the country have struck down tour-guide licensing laws in response to IJ lawsuits, including in Washington, D.C., and Savannah, Georgia. Other jurisdictions, like Williamsburg, Va., have repealed their licensing ordinances in order to avoid litigation.

“My love for history has helped others to go down in history and what an amazing feeling that is,” said Kimberly Billups, one of the plaintiffs in the lawsuit. “I tell my tour groups full of 8th graders about how important our First Amendment is and how they can keep it safe for the future.”

“Today’s ruling affirms that the First Amendment protects your right to speak for a living, whether you are a journalist, a stand-up comedian or a tour guide,” concluded IJ Senior Attorney Robert McNamara. “Government officials consistently assume that they can trample your right to speak just because someone wants to pay to hear you. That is wrong, and the Institute for Justice will continue to prove that it is wrong as often as we need to.”

When the Government Destroys a Home, Must It Pay for the Damage Done?

Police searched for a shoplifter and chased him into the Lechs’ home. Then the police literally blew up the family’s home, using explosives and a battering ram. Then—even after the government condemned the home and it had to be bulldozed—the police said they were merely exercising their “police power,” so they owed the Lechs nothing.

Arlington, Va. —When law enforcement agents blew up their home looking for an armed shoplifter, the Lech family presumed the government would pay for the destruction, especially considering the Lechs were completely innocent in the events that unfolded that 2014 day. But in a case now fully briefed for U.S. Supreme Court consideration, the courts have thus far shielded law enforcement from all financial accountability for its actions; the family alone must pay to replace their home.

“If the government needs to destroy your property to build a public school, it has the power to do so, but it must pay for what it takes,” said Institute for Justice Senior Attorney Bob McNamara, who represents the Lechs. “But the courts have decided the usual rule doesn’t apply if the government destroys your home using the ‘police power,’ which is another way of allowing government to do and take what it wants without consequence.”

“The police are allowed to destroy property if they need to in order to do their jobs safely, and in this case, they were seeking a suspect who had fired on them,” said McNamara. “But under the Constitution, if the government destroys someone’s property to benefit the public, the entire public—not merely the innocent property owners alone—must pay for that social benefit. That’s just as true regardless of whether the government agents doing the destroying are the local school board or the local police.”

“It should shock the conscience that the most amazing fact here is not that the Lechs’ home was utterly destroyed by police using explosives and a battering ram, but that the federal appeals court ruled law enforcement’s action can never amount to a taking, and so the government doesn’t have to give the Lechs—who lost their entire home—a dime,” said IJ Attorney Jeff Redfern.

“This whole affair has quite simply totally destroyed our lives,” said Leo Lech, whose home was located in Greenwood Village, Colorado. “My son’s family was very literally thrown out into the street with the clothes on their back, offered $5,000, and told to ‘go deal with it.’”

“Property rights are the foundation of our rights,” said IJ President and General Counsel Scott Bullock. “The court’s ruling that government officials can purposefully destroy someone’s home without owing just compensation is not just wrong; it is dangerous and unconstitutional. The Institute for Justice is committed to seeing it overturned, for the Lechs and for the protection of property owners across America.”

The Institute for Justice is pursuing this case as part of its new Project on Immunity & Accountability, which is dedicated to vindicating the simple idea that the government is not above the law; if citizens must follow the law, then the government must follow the Constitution, too. And in this case, in which an entire home was destroyed, the law requires the government to pay when it takes private property.

Three Specific Ways to Fix Bad Policing

To improve policing, we must end long-running policies that incentivize bad behavior and break down trust between the police and the public:

  • End Abusive Fines & Fees
  • End Civil Forfeiture
  • End Qualified Immunity

Arlington, Va. —As nationwide protests over police abuse have convulsed the nation in the wake of the killing of George Floyd, practical responses are needed to fix fundamental flaws in the way American communities are regulated and policed. To have effective and trusted law enforcement, local, state and federal officials must take concrete actions to change the underlying incentives that work to enable and even encourage police abuse.

“Incentives matter,” said Institute for Justice President and General Counsel Scott Bullock. “Many police operate in a system that unnecessarily sows mistrust and forces the police and the communities they purport to serve into needless confrontations, while doing little to actually protect the public.”

The nonprofit Institute for Justice (IJ) has spent years fighting against three specific policing doctrines that should be abolished by legislatures and courts. These doctrines are some of the key drivers behind the widespread anger and distrust of law enforcement agencies across the nation today.

“Changing these three doctrines will improve policing in America,” Bullock said. “While they will not fix everything wrong with current policing practices, by changing the incentives around law enforcement, we can help ensure that all individuals, including the poor and disenfranchised are respected while the police carry out their work.”

Eliminate Arbitrary & Abusive Fines & Fees

“Arbitrary and abusive fines and fees are a municipal moneymaker through which police ticket people to raise revenue,” said Institute for Justice Senior Attorney Bill Maurer. “People may remember how Ferguson, Missouri relied on fines and fees to pay for its budget. That reliance infected both the municipal court and its law enforcement, leading to violence and death and widened the divide between police and the African-American community. That same infection festers throughout cities nationwide. Making police tax collectors for revenue hungry municipalities creates distrust, increases the number and intensity of interactions with the police, and does nothing for public health and safety.”

The infractions can be remarkably arbitrary and petty. In Pagedale, Missouri, for example, residents could be fined if they had mismatched curtains, walked on the left side of the crosswalk, wore pants below one’s waist or had a barbeque in the front lawn rather than in the back.

Maurer urged, “Look at Chicago, where African-American couple Jerome Davis and Veronica Walker-Davis live. They took their car to an auto shop for repairs, and their mechanic took it out for a drive. But when police pulled him over and discovered his license was revoked, they impounded the Davis’ car.”

Even though the Davises did nothing wrong, Chicago demanded that they pay thousands in fines and fees. But by the time the couple raised the money, the city had “disposed” of the car. This is far too common: research from ProPublica Illinois with WBEZ shows that Chicago’s fines and fees fall heaviest on those least able to pay, especially African Americans.

And fines and fees like this come with predictable results: less trust in and respect for government. One Institute for Justice survey demonstrated that individuals who had run afoul of these sorts of municipal-citation systems in Georgia reported significantly lower levels of trust in government—not just in police, but in elected officials.

“Properly enforcing laws requires the trust of a community,” said Maurer. “But you can’t expect people to trust a system that treats them like walking ATMs. This is going to be an even bigger issue in minority communities once the pandemic ends.”

End Civil Forfeiture

Civil forfeiture gives law enforcement a direct financial incentive to violate constitutional rights. This doctrine lets police seize and permanently keep people’s property, all without ever charging them with a crime let alone finding them guilty.

Worse yet, many states let police and prosecutors keep 100% of what they take in, encouraging police to seize as much as they can from those who are least able to defend themselves. At a vehicle forfeiture conference, New Mexico prosecutors laughed about how the doctrine let them fleece property owners: “What’s theirs is yours,” former Las Cruces City Attorney Pete Connelly told his colleagues. “If in doubt … take it.”

Cities across America have done just that. In Philadelphia, police and prosecutors built a forfeiture machine that took in millions every year, disproportionately from communities of color. In Tenaha, Texas, police systematically pulled over drivers and confiscated their property, even threatening to put one interracial couple’s children into foster care if they didn’t sign away their cash. And in Albuquerque, New Mexico, prosecutors worked hard to seize and forfeit vehicles given that 100% of their salaries relied on that revenue.

“Civil forfeiture turns police into revenue generators,” said Institute for Justice Senior Attorney Darpana Sheth who spearheads IJ’s National Initiative to End Forfeiture Abuse. “Law enforcement agencies have taken in literally billions of dollars through civil forfeiture, the vast majority of which was never tied to any criminal activity.

“It’s little surprise that minority communities view civil forfeiture with widespread suspicion, given that it has empowered law enforcement agencies year after year to prey on the very communities they are supposed to protect,” Sheth said. “Courts and legislatures should end this perverse financial incentive so that police chase criminals, not dollars.”

Abolish Qualified Immunity

“It is essential that we end qualified immunity, a legal doctrine that says no government official can be held liable for violating the Constitution unless they break a ‘clearly established’ rule,” said Institute for Justice Senior Attorney Bob McNamara, who heads up IJ’s new Project on Immunity & Accountability. “In practice, this means that government officials have a free pass to violate your rights as long as they do so in a way that is even a little different from what has been done before. And as a result, courts in recent years have said that officers can steal cash, destroy homes and shoot children—all without any consequence at all.”

Prince McCoy, a Texas inmate, learned about qualified immunity the hard way. A prison guard, frustrated by a different inmate in a different cell, shot McCoy in the face with pepper spray. McCoy sued, but the 5th U.S. Circuit Court of Appeals held that the guard was entitled to qualified immunity even though his assault violated the Constitution. Why? Because although the court had previously condemned punching and tasing defenseless inmates, it had not previously condemned jailers for using pepper spray on defenseless inmates locked in their cells.

Cases like McCoy’s are legion, making the end to qualified immunity long overdue. Because qualified immunity provides for a nearly impenetrable barrier between officers and accountability, even the most egregious violations can go unpunished. Here are some cases where the courts granted immunity in just the past year; three of which are among those now being considered for review before the U.S. Supreme Court:

The U.S. Supreme Court already granted review in another IJ case, Brownback v. King, where IJ represents an innocent college student who was mistaken for a non-violent suspect wanted by police for a petty crime. Two plain-clothed police officers who never identified themselves as police mercilessly beat James King and choked him until he was unconscious. James prevailed at the appeals court, persuading the judges to deny qualified immunity to the officers. But before the case could go back down to the trial court for a determination on the merits, the government convinced the Supreme Court to take the case and consider whether to create yet another exemption from accountability.

And later this month, the Court will consider whether to accept a third case from IJ’s Project on Immunity and Accountability, brought on behalf of a Colorado family whose home was destroyed by police in pursuit of a suspect who had no connection to them.

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said McNamara. “By protecting new and even more outrageous actions by law enforcement, qualified immunity protects bad policing while demoralizing and stigmatizing all the officers out there who are doing good work. If we want to deescalate the abuses we are seeing among law enforcement nationwide, we must abolish qualified immunity.”

“This misuse of government power must end,” Bullock said. “The millions protesting are tired of the abuse and unaccountability. These proposals are concrete ways to effectuate real change. Politicians and the courts must stand up and end abusive fines and fees, end civil forfeiture, and end qualified immunity. Those concrete actions will move us closer to a system of genuine justice for all that helps restore trust, protects the public and save lives.”

With a Hunger Crisis Impending, One Washington County Doubles-Down on Campaign to Block Little Free Pantries

In the midst of a pandemic and economic collapse, the Asotin County Board of Health has proven that it will stop at nothing to prevent a charity-minded constituent from helping her hungry neighbors. The latest twist in the county’s months-long campaign to stop Kathy Hay from operating a “little free pantry” came in the form of an invoice for $2,800 and a letter demanding that Kathy pay the county for its illegal enforcement actions against her.

“With Washington’s food banks facing an impending ‘crisis,’ residents sheltering in place and a pandemic growing in the Eastern half of the state, it is beyond outrageous that the county not only continues its campaign against little free pantries, but also had the audacity to bill Kathy for its illegal enforcement actions,” said Erica Smith, a senior attorney at the Institute for Justice, which represents Kathy in a lawsuit challenging the constitutionality of the county’s actions. “According to the county, even if Kathy complies with its long list of illegal demands, she cannot reopen her pantry until she pays the county’s invoice. At this point, it seems clear that the county would rather extract a pound of flesh than help residents in need.”

According to Feeding America, America’s food banks are facing a “perfect storm.” Thankfully Americans across the country are responding by converting their “little lending libraries” into “little free pantries.” And while the vast majority of cities and states have welcomed the trend, a handful of closedminded regulators have responding by putting up red tape in the way of charity.

Kathy’s fight started last year, when she erected a little free pantry in her backyard. At the time, she just wanted to share food with her neighbors in need and give back to a community that had supported her when she was having a hard time putting food on her own table. The pantry proved successful, as many neighbors helped keep it stocked with foods, while others took what they needed to feed their families. But a few weeks later, Kathy found that no good deed goes unpunished. The Asotin County Board of Health ordered her to shut it down because, they said, she needed to satisfy a laundry list of unnecessary demands that had nothing to do with protecting the health or safety of her pantry’s patrons. Faced with no other options, Kathy partnered with the Institute for Justice and sued the county to vindicate her right to help her neighbors.

“Forcing Kathy to pay for the county’s illegal enforcement actions is appalling,” said IJ Constitutional Law Fellow Caroline Grace Brothers. “The county’s petty attempt to recoup its illegal enforcement costs knows no bounds. They even charged her for the time they spent talking to local reporters about the issue. If the county doesn’t come to its senses and tell its regulators to stand down, we’ll have no other recourse than to see them in court.”

George Floyd and Beyond: How “Qualified Immunity” Enables Bad Policing

Arlington, Va. —This week, the U.S. Supreme Court will consider whether to accept eight different cases that spotlight how the system of “qualified immunity”—which the Supreme Court created in 1982—has led to the regular and widespread violation of constitutional rights by police and other government officials.

While the nation is focused on the tragic death of George Floyd, qualified immunity cases have allowed government officials to steal, maim, willfully destroy property, and even kill, all without facing any consequence for their actions. If any ordinary citizen of the United States had engaged in such actions, they would face the full weight of the law against them; but because of qualified immunity, government officials are often held to a shockingly lower standard, leaving their victims to suffer insult after injury.

Qualified immunity means that government officials cannot be held accountable for violating the Constitution unless they violate a “clearly established” constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.

How precisely must the violation match? Officers were recently granted qualified immunity when they let their police dog attack a suspect who was seated with his hands raised because the court found that an earlier case in which police let loose their dog on a suspect who was lying down wasn’t a close enough match.

“Qualified immunity means that government officials can get away with violating your rights as long as they violated them in a way nobody thought of before,” explained Institute for Justice (IJ) Attorney Anya Bidwell. “And that means that the most egregious abuses are frequently the ones for which no one can be held to account.”

Qualified immunity applies only in civil lawsuits—not criminal ones. But such civil suits are the only means by which individuals or their surviving family members can get compensation for the violation of constitutional rights. And prosecutors often resist bringing criminal charges against government colleagues, especially police officers who are crucial to the daily work of prosecutors.

One of the eight cases under consideration this week is West v. Winfield, an IJ case in which an Idaho mom handed her keys to local police so they could search for a suspect. Rather than using the keys, officers spent the better part of a day firing tear-gas grenades and other projectiles into the empty home, destroying it and almost everything inside it. (The suspect was not there.) When the mom sued for the warrantless destruction of her home, the government defended itself by saying that no warrant was needed: When she gave the police her consent to get inside the home, that included her consent to destroy it with grenades from outside. The appellate courts did not rule that this was correct—they did not say that inviting someone into your home is the same thing as inviting them to bomb it—but they ruled for the government, nonetheless. No government official had ever made that argument before, and so there was no precise case on point. In the upside-down world of qualified immunity, that meant the government won—and the mom lost.

West is only one case IJ is litigating under its Project on Immunity and Accountability, which litigates to remove barriers to meaningful enforcement of constitutional rights. The U.S. Supreme Court has already granted review in another IJ case, Brownback v. King, where IJ represents an innocent college student who was mistaken for a non-violent suspect wanted by police for a petty crime. Two plain-clothed police officers who never identified themselves as police mercilessly beat James King and choked him until he was unconscious. Then, in a practice often seen among law enforcement to coverup for the misdeeds of officers, prosecutors charged the student with serious felonies, all with the apparent goal of forcing the student into making a plea deal rather than pursuing justice against the officers who put him in the hospital. Confident he had done nothing wrong, the student successfully fought the charges, earned a unanimous not-guilty verdict, then continued his case to bring the two rogue law enforcement officers to justice for what they had done to him. Citing qualified immunity, the trial court dismissed the student’s case, but he miraculously persuaded the appeals court to reverse the trial court’s qualified immunity ruling. Before the student’s case could proceed, however, the government asked the Supreme Court to take the case and create yet another special protection to shield enforcement from accountability. The Supreme Court has taken up the student’s case and will decide whether to grant the government’s request next term.

And later this month, the Justices will consider whether to accept a third case from IJ’s Project on Immunity and Accountability, brought on behalf of a Colorado family whose home was destroyed by police in pursuit of a suspect who had no connection to them.

As the Institute for Justice reported this past week in the definitive oped on the issue of qualified immunity that ran in USA Today:

Four decades on, qualified immunity routinely shields both the incompetent and those who knowingly violate the law. In the past year alone [along with the two cases above] courts have granted qualified immunity to:

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said IJ Senior Attorney Robert McNamara, who is lead counsel in the West case and who heads up the Institute for Justice’s Project on Immunity and Accountability. “It is past time for the Supreme Court to admit as much and start expecting government officials to follow the Constitution.”

The drumbeat of voices calling for an end to qualified immunity and a return to basic government accountability has only grown louder in the wake of the killing of George Floyd by Minneapolis police officers. Articles in outlets ranging from USA Today to Fox News Channel to the New York Times editorial page all pointed to the slaying as a symptom of a broader culture of official impunity and called upon the Supreme Court to rethink—if not abandon entirely—its qualified immunity rules.

“There is no shortage of outrageous qualified immunity cases for the Supreme Court to take,” said IJ Attorney Patrick Jaicomo. “It should no longer avoid the issue. The skewed incentives of qualified immunity guarantee that lower courts will continue to generate more examples of injustice, and we will keep bringing those examples back to the courthouse steps until we break through.”

“The principle at stake is simple: If citizens must obey the law, then the government must obey the Constitution,” concluded 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.”

Lawsuit Challenging D.C.’s Day Care Education Requirement Scores Win At Appeals Court

WASHINGTON—Today, the U.S. Court of Appeals for the D.C. Circuit rejected a lower court’s dismissal of a lawsuit challenging a requirement that day care providers obtain a college degree before taking care of kids.

Ilumi Sanchez, a D.C. day care provider who has taken care of dozens of children since 1995, partnered with the Institute for Justice (IJ) along with a parent and another day care provider in 2018 to challenge the requirement, which would have put her out of work. The district court dismissed the lawsuit on procedural grounds, arguing that the requirement (which doesn’t take effect until 2023) had not hurt the plaintiffs just yet. Today’s ruling means that Ilumi’s challenge to the onerous requirement can continue to move forward.

“Today’s victory underscores that the District can’t avoid this lawsuit by moving the goalposts for compliance with its regulations,” said IJ Attorney Renée Flaherty. “The college requirement has already devastated the city’s day care providers and parents, and the district court will now have to consider this case on its merits rather than dismissing it on a procedural technicality.”

After Ilumi and IJ filed the lawsuit in 2018, regulators in the Office of the State Superintendent of Education (OSSE) extended compliance deadlines to December 2023 and allowed some home day care providers to apply for waivers if they had ten years of experience. But far from solving the problems posed by the college requirement, these changes only postponed the inevitable for the city’s hardworking day care providers who would never be able to comply with such a senseless and unnecessary requirement.

IJ and the plaintiffs pressed ahead with litigation because neither they nor any other day care provider should be at the mercy of waivers to an unconstitutional requirement. OSSE also argued that Ilumi and fellow day care provider and plaintiff Dale Sorcher no longer had standing to challenge the degree requirement, since Ilumi obtained an experience waiver and Dale could ask her employer to apply for a hardship waiver on her behalf.

The Court emphatically rejected these arguments as “unconvincing.” Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit ruled that “[m]uch as OSSE may attempt to downplay its impact,” the college requirement has already harmed the city’s day care providers. The Court noted that OSSE’s arguments about waivers provided “cold comfort” to day care providers who must rely on the regulator’s mercy to grant waivers year after year and not to revoke them.

“Day care in the District is already the most expensive in the nation,” said parent and plaintiff Jill Homan. “The college requirement is making everything worse, without any benefit to be gained from it. The most important qualities in my children’s caregivers are love and patience, which aren’t learned in school. My family is relieved that this lawsuit can move forward on behalf of the District’s parents.”

“If government officials want to throw hard-working day care providers out of a job, they should expect to have to answer for that decision in court,” concluded IJ Senior Attorney Robert McNamara. “Today’s ruling means that they will have to do exactly that, and the Institute for Justice stands ready to ensure that our clients’ right to earn an honest living receives the full measure of respect it is due.”

The case now returns to the district court to decide the government’s motion to dismiss the legal claims on the merits.

Minnesota Ends Licenses For Freelance Makeup Artists and Hairstylists, Preserves Over 1,000 Jobs

Today, Minnesota Gov. Tim Walz signed a major reform bill that eliminates licensing requirements for hair and makeup artists, a move that will protect more than 1,000 jobs. Under SF 2898/ HF 3202, hair and makeup artists will be free to style hair and apply makeup as soon as they finish a four-hour course on health, safety, and infection control. Critically, these beauticians will be able to work at weddings, proms, and other social gatherings, and even offer at-home services. But performing other beauty treatments, like facials, haircuts, and manicures, would still need a license.

“By passing this bill, the Minnesota Legislature has protected hundreds of jobs and small businesses in the state,” noted Institute for Justice Legislative Counsel Meagan Forbes, who worked with lawmakers on the bill. “This important bipartisan reform will bring much needed relief to hair and makeup artists and create opportunity for many others.”

Prior to reform, anyone who wanted to earn a living applying makeup or styling hair at special events could only legally work if they obtained three separate licenses and permits. Starting in December 2018, the Minnesota Board of Cosmetologist Examiners began cracking down on beauticians, slapping them with cease and desist orders and heavy fines.

“Two years ago, the Cosmetology Board arbitrarily changed its interpretation of the law and stripped freelance hair and makeup artists of their livelihoods. These men and women are finally free to resume doing what they love,” said bill sponsor and Sen. Karin Housley.  “We should be supporting our small businesses–many of which are women-owned–not making it impossible for them to make a living.”

Compliance was a bureaucratic nightmare. Artists who styled hair and applied makeup outside of salons were forced to first obtain a license in either esthetics or cosmetology (which take 600 and 1,550 hours of training respectively), then become licensed salon managers, and then acquire a special-events permit to work at weddings and the like. Worse, cosmetology schools can charge upwards of $20,000 in tuition. In fact, Minnesota’s restrictions were so burdensome, they even triggered a civil-rights lawsuit against the Board.

“This bill means so much to me because when it’s safe for me to return to work, I will still have my business I’ve worked so hard for so many years at building,” said one of the plaintiffs in the lawsuit, Cristina Ziemer, a bridal hair and makeup artist who owns Cristina Ziemer Beauty in Stillwater. “I will be so relieved to be able to pay my bills again and I’ll feel secure knowing I’ll still be able to provide for my family like I did prior to COVID-19.”

Even though millions of Americans blow dry their own hair and put on their own makeup every day without trouble, many states impose burdensome restrictions that thwart entrepreneurs who want to earn an honest living offering those services. In nearly 40 states makeup artists must become licensed, which on average, requires completing over 130 days of classes. Meanwhile, only two states–Arizona and Virginia–have exempted blow dry bars from licensing.

“It has been my pleasure to work in a bipartisan way to help the makeup artists and hairstylists in Minnesota,” said Rep. Shelly Christensen, who sponsored the bill in the House. “As a result of their energetic self-advocacy and our willingness here in the legislature to work together, we have made a positive difference in the lives of these hard-working folks.”

New Orleans-Area Residents File Class Action Lawsuit Over Due Process Violations in Criminal Proceedings

New Orleans, La.—Today, New Orleans-area resident Marshall Sookram joined Hakeem Meade in a class action lawsuit against a judge on the New Orleans Criminal District Court for violating their right to neutral adjudication. Judge Paul A. Bonin previously ordered both men to pretrial ankle monitoring by ETOH Monitoring, LLC (ETOH). What the two men and many other New Orleans-area defendants did not know is that both of ETOH’s executives—one of whom is Judge Bonin’s former law partner—had together contributed over $9,000 to Judge Bonin’s judicial election campaigns and had even loaned money to the judge’s campaign.

The assessment of fees and deprivation of liberty involving a conflict of interest are violations of due process guaranteed by the U.S. Constitution. Now, Hakeem and Marshall are fighting back with the Institute for Justice (IJ) and the Law Office of William Most to ensure that ankle monitoring decisions are made without bias or the appearance of bias. This mission is especially vital now that COVID-19 has led many municipalities to monitor defendants with ankle monitors—and make the defendants pay for the monitoring service—instead of placing them in jail.

“Hakeem was placed on an ankle monitor with a company that has significant ties to the judge deciding his case. This is a direct conflict of interest and is unconstitutional,” IJ Senior Attorney Bill Maurer said. “Louisianans need to trust that their criminal justice system is free from bias or the appearance of bias. This lawsuit will help hold it accountable.”

The personal and financial relationship between Judge Bonin and ETOH was revealed in 2019 in a report by Court Watch NOLA (CWN), a judicial watchdog organization. Pretrial defendants, who were overwhelmingly indigent, had to pay $100 to ETOH for the installation of their monitoring devices and then $10 per day for monitoring. According to the same 2019 report, Judge Bonin also required his staff to “provide the defendant or the defendant’s family members with the contact information for ETOH.” Judge Bonin would sometimes even refuse to release defendants from jail until the family had arranged for ETOH to set up ankle monitoring. While Judge Bonin claims to have stopped the practice, the defendants he oversaw are still being pressured by ETOH to pay their remaining fees to the company.

“Fines and fees have become a mechanism for taking property and money from our society’s most vulnerable people and handing it to government agencies and private companies performing government functions,” said IJ Attorney Jaba Tsitsuashvili. “But the purpose of the criminal justice system is to pursue justice and protect the public, not generate revenue.”

These principles are especially vital because private companies have become enmeshed in the operation of state judicial systems. When private companies perform government functions, they must conform to constitutional standards. The lawsuit seeks to set boundaries on the proper use of private ankle-monitoring companies and other private companies which play a role in the judicial system.

“I’m part of this lawsuit to stop this abuse in the New Orleans court system and to make sure this doesn’t happen to anybody else,” said plaintiff Marshall Sookram.

Hakeem and Marshall are asking the U.S. District Court for the Eastern District of Louisiana to issue an order declaring that judicial decisions that benefit a private party with direct ties to a judge violate the Constitution. The class action lawsuit also seeks to require the company to disgorge the fees it collected from all defendants appearing before Judge Bonin and to cancel outstanding fees.

This case is the latest in IJ’s nationwide initiative to end abusive fines and fees and to ensure that the justice system operates for health and safety, not for profit. To vindicate these principles, IJ is currently litigating fines and fees cases in California (Indio and Norco), Georgia, and Missouri. IJ also launched a nationwide database surveying and grading state laws for their role in facilitating fines and fees abuses. And IJ’s Project on Immunity and Accountability litigates cases to hold government officials and those who act in concert with them accountable for violating peoples’ constitutional rights.

Indiana Returns Vehicle in Landmark Civil Forfeiture Case, But Government Continues its Appeal

Arlington, Va.—For Tyson Timbs, the wheels of justice are still turning. Nearly seven years to the day after Indiana law enforcement seized his vehicle—and over a year after a landmark ruling from the U.S. Supreme Court—the Marion, Indiana man returned home yesterday to find his car in his driveway. Last month, the trial court in Grant County ruled that forfeiting Tyson’s vehicle would violate the 8th Amendment’s Excessive Fines Clause. The Indiana Attorney General has appealed, placing Tyson’s case before the Indiana Supreme Court for a third time. While that latest appeal proceeds, however, the vehicle is back with its rightful owner.

Photo by Richarh Tyson

“It was a weird feeling today. I didn’t believe that the vehicle would be mine again until I got home and saw it in my driveway,” Tyson said.

In April, Judge Jeffrey D. Todd, of the Grant County Superior Court, ruled that forfeiting Tyson’s $35,000 Land Rover amounted to an unconstitutional excessive fine under the 8th Amendment. The court noted, “the State sought forfeiture of [Tyson’s] only asset; an asset he purchased using life insurance proceeds rather than drug money, and a tool essential to maintaining employment, obtaining treatment, and reducing the likelihood that he would ever again commit another criminal offense.” That mismatch between crime and punishment meant that Tyson could prove “by a significant margin” that the forfeiture was excessive. The court’s judgment directed the State to return Tyson’s car immediately.

Yesterday [Tuesday, May 26], the State of Indiana returned the vehicle.

“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. “To me, 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 parole officer or go to a drug recovery program or go to work? Forfeiture only makes it more challenging for people in my position to clean up and be contributing members of society.”

“As the court correctly recognized, the State’s ongoing campaign to take Tyson’s car is just the sort of abusive forfeiture that the Excessive Fines Clause is designed to curtail,” said Sam Gedge, an attorney for the Institute for Justice (IJ), which represents Tyson. “The State of Indiana has now spent nearly seven years trying to confiscate a vehicle from a low-income recovering addict—and the Indiana Attorney General is still at it. No one should have to spend seven years fighting the government just to get back their car.”

“Tyson’s case has gone through every level of the American judicial system—in some instances, twice,” said IJ Senior Attorney Wesley Hottot, who argued Tyson’s case before the U.S. Supreme Court. “The State’s relentless use of its forfeiture machine is—and continues to be—a profoundly unjust exercise of power, and it underscores that civil forfeiture is one of the greatest threats to property rights in the nation today.”

Federal Lawsuit Challenges Yavapai Zoning Authority’s Assault on Free Speech and Association

Prescott, Ariz.—When Joshua and Emily Killeen moved to rural Yavapai County, they envisioned building a simple home for themselves and operating a rustic wellness and wedding retreat. Unfortunately, their modest aspirations unraveled when the county banned them from advertising their coming business and hosting free potluck dinners with yoga because their buildings did not have permits. Now, Joshua and Emily are teaming up with the Institute for Justice, filing a federal lawsuit to protect constitutional rights that cannot be taken away by a zoning authority.

“You cannot lose your right to free speech or right to associate on private property because you don’t have the correct permit for your barn,” said IJ Senior Attorney Jeff Rowes. “Joshua and Emily will not open their business until they are in compliance, but their rights to advertise and to invite friends and neighbors over for dinner are protected by the U.S. Constitution. Yavapai County cannot enforce its zoning code through unconstitutional punishments.”

Joshua and Emily met in San Diego where he was a wedding photographer and she was a yoga instructor. They bonded over their shared interests in physical and mental wellness, self-reliance, financial minimalism and environmental stewardship. After realizing that their incomes would not allow them to live their dreams in expensive Southern California, they decided to move back to Joshua’s home state of Arizona. In 2017, they purchased undeveloped rural property in northern Yavapai County planning to open Ananda Retreat, a wellness center and event space for weddings.

On ten acres of desert land, they built a tiny home and a rustic barn to host events. Not until they received a letter from Yavapai County Development Services in June 2018 did they realize that their desert retreat required extensive permitting. And while the county ordered them to get permits or restore the land to its original state, it also ordered them to stop advertising their coming business online. The couple were also ordered to stop hosting “Wellness Wednesdays,” free events where friends and neighbors were invited to participate in open air yoga and share a vegetarian dinner.

“Unexpectedly having to get permits was a setback for our business, but the restrictions on our advertising and social events have been devastating for both the business and our lives,” said Joshua. “We just want to live simply in a rugged and beautiful corner of Arizona. It’s sad that we have to fight in court for basic rights. We simply believe the county has gone too far, and we don’t want to see anyone else harmed in the same way.”

Yavapai County’s punishments violate the U.S. Constitution in two ways. First, Joshua and Emily have a First Amendment right to convey truthful information about their business. Businesses commonly advertise that they are “coming soon,” often long before they have completed permitting processes. Yet the Yavapai zoning authority monitored Ananda Retreat’s website and ordered Joshua and Emily to shut it down until they have permits. Second, the right to associate freely on private property is protected by the 14th Amendment. Yavapai County cannot stop Joshua and Emily from open air socializing on their property.

“Fundamental rights cannot be suspended because you don’t have the right building permit,” said IJ Attorney Keith Diggs. “Zoning powers have expanded immensely over the years, but courts should make it clear that there is a limit to those powers: the U.S. Constitution and Bill of Rights.”

The Institute for Justice is the national law firm for liberty. Since 1991, IJ has worked to protect property rights and the right to earn an honest living. IJ has fought local governments that used their zoning codes to stop residents in Miami Shores from growing vegetables in their front yard, shut down a home recording studio in Nashville, and prevented an Akron man from helping the homeless.

Tennessee Parents Ask TN Supreme Court to Assume Jurisdiction Over ESA Case and Allow the ESA Program to Move Forward Now

Tennessee parents Natu Bah and Builguissa Diallo today asked the Tennessee Supreme Court to stay the adverse decision against Tennessee’s Education Savings Account Pilot Program Act, which the Chancery Court of Davidson County had declared unconstitutional earlier this month, and to decide the case itself now rather than wait for a decision from the Court of Appeals. Following a lawsuit against the ESA program announced by Nashville Mayor John Cooper, the parents teamed up with the Institute for Justice (IJ) to intervene in the suit in support of the program. That lawsuit was joined by the Metro Government of Nashville and Davidson County, Shelby County and Metro Nashville Board of Public Education.

“Tennessee’s ESA Pilot Program is a lifeline for the parents whose children are trapped in failing public schools,” declared IJ Senior Attorney Tim Keller. “It is critical that the state be permitted to continue implementing the program this year. That is why we have asked the State Supreme Court to decide this case on an expedited basis and to allow the program to be implemented while the courts resolve the legal and constitutional questions.”

Last night, the Tennessee Court of Appeals granted the parents and the state defendants to appeal the Chancery Court’s decision declaring the ESA Program unconstitutional but denied their request to stay the lower court’s ruling. The parents’ motion, filed today in the Tennessee Supreme Court, requests that the Court assume jurisdiction over the appeal and set an expedited briefing schedule and oral argument so the constitutionality of the program can be ruled on before the school year. They also asked the High Court to stay the Chancery Court’s injunction blocking further implementation of the Pilot Program while the appeal is pending.

The ESA program was passed in 2019 by the Tennessee General Assembly. The program offers a much-needed lifeline to families that would like to leave public schools that do not meet their children’s needs, but who lack the financial resources to do so. Under the ESA Pilot 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.

“My sons need a better education now. I can’t wait a year for this to be sorted out,” said Natu Bah, a parent intervenor in the legal battle.

“School choice programs provide an opportunity for children to get the education that is best for them, regardless of where they live,” said IJ Educational Choice Attorney David Hodges. “This program serves some of the most vulnerable students in Tennessee—who attend schools where not even one in five students is at grade level—and empowers them to leave schools that are not working for them.”

Since its founding over 25 years ago, IJ has successfully defended school choice programs across the country, including three times at the U.S. Supreme Court. This January, the U.S. Supreme Court heard Espinoza v. Montana Department of Revenue, an IJ case that asks the Court to strike down a government ban on using tax credit-funded scholarships to attend religious schools.

Minnesota Bill Would Untangle Red Tape For Freelance Hair and Makeup Artists

A bill that would protect the livelihoods of more than 1,000 hair and makeup artists is heading to Gov. Tim Walz. Currently, anyone who wants to earn a living applying makeup or styling hair at wedding, proms, or other social gatherings can only legally work if they’ve obtained three separate licenses and permits.

But under SF 2898/ HF 3202, hair and makeup artists would be free to work as soon as they finish a four-hour course on health, safety, and infection control. Performing other beauty services, like haircuts and manicures, would still need a license.

“It has been my pleasure to work in a bipartisan way to help the makeup artists and hairstylists in Minnesota,” said bill sponsor Rep. Shelly Christensen (DFL-Stillwater). “As a result of their energetic self-advocacy and our willingness here in the legislature to work together, we have made a positive difference in the lives of these hard-working folks.”

Since December 2018, the Minnesota Board of Cosmetologist Examiners has been cracking down on beauticians, slapping them with cease and desist orders and heavy fines. Compliance is its own bureaucratic nightmare. Hair and makeup artists are forced to first obtain a license in either esthetics or cosmetology (which take 600 and 1,550 hours of training respectively), then must become licensed salon managers, before they can then acquire a special-events permit that lets them work at weddings and the like. Worse, cosmetology schools can charge upwards of $20,000 in tuition. In fact, Minnesota’s restrictions are so burdensome, they even triggered a civil-rights lawsuit against the Board.

“This bill means so much to me because when it’s safe for me to return to work, I will still have my business I’ve worked so hard for so many years at building,” said one of the plaintiffs in the lawsuit, Cristina Ziemer, a bridal hair and makeup artist who owns Cristina Ziemer Beauty in Stillwater. “I will be so relieved to be able to pay my bills again and I’ll feel secure knowing I’m still able to provide for my family like I did prior to COVID-19.”

“By passing this bill, the Minnesota Legislature has protected hundreds of jobs and small businesses in the state,” noted Institute for Justice Legislative Counsel Meagan Forbes, who worked with lawmakers on the bill. “This important bipartisan reform will bring much needed relief to hair and makeup artists and create opportunity for many others.”

Airbnb Property Manager Scores Major Win At Pennsylvania Supreme Court

Harrisburg, Penn.—In a victory for economic liberty in Pennsylvania, this morning the Pennsylvania Supreme Court held that vacation rental manager Sally Ladd’s constitutional lawsuit against the Pennsylvania Real Estate Commission could move forward. Today’s ruling allows Sally to continue challenging requirements in the Real Estate Licensing and Registration Act (RELRA) that she spend three years apprenticing for a fully licensed real estate broker, take hundreds of hours of irrelevant courses and open a brick-and-mortar office in Pennsylvania just to help manage rental properties on sites like Airbnb. The 5-2 decision reversed an earlier decision by the Pennsylvania Commonwealth Court dismissing the case. Sally is challenging the requirements alongside the nonprofit law firm the Institute for Justice (IJ).

More broadly, the decision vindicates the right to earn an honest living enshrined in the Pennsylvania Constitution, reaffirming that laws that burden economic liberty must bear a real-world connection to promoting a legitimate government interest. This means that going forward, Pennsylvanians can leverage the “more restrictive” protections of the state constitution when challenging economic liberty restrictions in court.

“This decision is a triumph for economic liberty in Pennsylvania. Simply put, nobody should have to spend three years working for established licensees and taking irrelevant courses just to earn a living. Requirements like these, the Court correctly recognizes, unconstitutionally burden the right to earn an honest living,” said IJ Attorney Joshua Windham.

Writing for the majority, Justice Kevin Dougherty declared: “We conclude Ladd’s allegations present a colorable claim that RELRA’s requirements, as applied to her self-described services, are unreasonable, unduly oppressive and patently beyond the necessities of the case.”

Sally first started listing and managing vacation rentals on websites like Airbnb in 2013 as she neared retirement, but that all came crashing down in 2017 when the Pennsylvania Department of State informed her she was under investigation for allegedly operating an unlicensed real estate brokerage. To get a license, Sally would have had to spend three years apprenticing with a broker, pass two exams and open up her own physical office in Pennsylvania. Unable to afford those burdens, Sally was forced to shut down. Represented by IJ, she sued, arguing that Pennsylvania’s heavy-handed real estate license violated her right to earn an honest living under the Pennsylvania Constitution.

“It seems like such common sense that short-term rentals aren’t the same as buying and selling properties, which is what the real estate industry and the state’s licensing requirements are largely focused on. It’s just a completely different business. This is a new frontier, and I’m just so thrilled that the Court acknowledged that,” Sally said.

The Court rebuked the state for requiring Sally to open her own brick-and-mortar office in Pennsylvania just to continue managing short-term rentals, since a “requirement that she obtain physical office space in Pennsylvania is tantamount to an excessive fee for entry into a profession.”

IJ Senior Attorney Paul Sherman said, “Today’s decision highlights the importance of judicial engagement. When the government takes away a person’s right to earn a living, it’s not too much to ask that the government have a good reason for doing so. The Court correctly rejected the position of the dissenting justices, which would have reduced judicial review of economic regulations to a rubber stamp.”

The case now returns to the Pennsylvania Commonwealth Court to reconsider the state’s motion to dismiss consistent with the Pennsylvania Supreme Court’s opinion.

Let Them Sell Cake: Lincoln Home Baker Files Lawsuit Challenging City’s Unnecessary Regulations

Arlington, Va.—Today, home baker Cindy Harper joined with the Institute for Justice (IJ) and Husch Blackwell LLP to file a lawsuit challenging the City of Lincoln for bringing 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 within months, the City of Lincoln went rogue by imposing its own permitting and inspection requirements on home bakers. The lawsuit has taken on increased importance during the COVID-19 pandemic as consumers seek access to safe, fresh and convenient food sources more than ever. Cindy is ready to fight back in court and has partnered with the Institute for Justice to defend her right to sell safe and delicious foods from the comfort of her home.

“The right to sell home-baked goods in Nebraska shouldn’t depend on what city you happen to live in,” said Cindy Harper. “Lincoln should listen to the Nebraska legislature and leave home bakers alone.”

Last year, thanks in part to testimony from Cindy before the state’s legislature, Nebraska unanimously passed LB 304 and joined the vast majority of states allowing individuals to sell shelf-stable foods (such as cookies, breads, and jams) directly from home after they register with the state. Cindy promptly registered as a home baker under LB 304, planning to launch her own home-baking business.

“Cindy followed Nebraska law by registering with the state as a cottage food producer,” said IJ Attorney Joshua Windham. “Lincoln should do the same.”

In January 2020, the City of Lincoln unveiled its new regulations. The City’s cottage food ordinance requires producers to obtain an additional local permit and pass home inspections (conducted “as frequently as necessary”) to determine compliance with the Lincoln Food Code.

The new lawsuit argues that the City cannot enact regulations that restrict rights protected by state laws. When state Senator Sue Crawford introduced LB 304, she emphasized that the shelf-stable goods covered by the law “are simply not risky foods,” and that the law was designed to “make sure that all citizens can participate in the home cottage food industry without imposing . . . overly burdensome regulations,” like permitting and inspections. The City’s ordinance defeats the point of Nebraska’s law.

“Lincoln’s ordinance is a solution in search of a problem,” said IJ attorney Keith Neely. “Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska.”

This case is part of IJ’s National Food Freedom Initiative. IJ is currently challenging similar regulations in North Dakota. 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, West Virginia and Wyoming.

In addition to IJ, Cindy is represented by Omaha attorney Dave Lopez of Husch Blackwell LLP.

Institute for Justice Clinic on Entrepreneurship Asks Small Business Administration to Eliminate Barriers to Emergency Loans

CHICAGO— The Institute for Justice Clinic on Entrepreneurship at the University of Chicago submitted comments to the Small Business Administration asking it to eliminate red tape that prevents many low-income and minority-owned businesses from accessing emergency loans. The Payroll Protection Program (PPP) is intended to provide loans to small businesses whose operations have been affected by the COVID-19 pandemic and who do not have access to other sources of capital. Unfortunately, the SBA placed additional burdens on applicants that have no basis in the law, requiring that recipients not have interacted with the criminal justice system recently and denying loan forgiveness to employers who fail to use at least 75% of funds for payroll purposes.

“Red tape created by the Small Business Administration is making it impossible for many worthy businesses to get access to the emergency loans created by Congress,” said IJ Clinic Associate Director Amy Hermalik. “These regulatory hurdles, not written in the law, fall especially hard on minority and low-income business owners. IJ Clinic clients show that there are worthy businesses that would be excluded if the SBA doesn’t rethink its restrictions on who can apply and who can take advantage of loan forgiveness.”

The IJ Clinic submitted a detailed comment to the SBA on its final interim rule for the PPP. The letter calls into question two sections of the rule. The first makes a business ineligible for PPP loans if an individual who owns 20% or more of the company is currently indicted on any criminal charges—felony or misdemeanor—or has been convicted of a felony in the last five years. The prohibitions are likely to fall heavier on black and Latino populations because of existing racial disparities within the criminal justice system. The letter points out that while the SBA has authority to limit its regular loan programs in this manner, the emergency loan law does not list this as an allowed consideration for banks that are making PPP loans.

The IJ Clinic has worked with individuals who had previous interactions with the criminal justice system but who turned their lives around and started businesses. For instance, Jimmie Williams was in and out of prison in his younger years. When he was released and struggled to get hired, he founded Urban Roots and built it into a successful landscaping company. Jimmie has run his business for over a decade and hires and mentors other formerly incarcerated people.

“Having stable employment is critical to keeping people from ending up back in prison, and entrepreneurship is important path for individuals who have been incarcerated,” said Hermalik. “Now is a terrible time to exclude these entrepreneurs. Even worse, the rules also exclude people who have only been charged with a crime and may be innocent.”

Second, the IJ Clinic asks the SBA to reconsider provisions that limit the availability of loan forgiveness to businesses who used 75% of the loan for payroll. While the regulation was written with the intention of encouraging businesses to keep employees on the payroll, it does not take into account worthy small businesses with high costs for rent and utilities that may rival payroll costs. Again, this provision was not written in the law and likely works counter to the intentions of Congress.

Typical Main Street businesses are perhaps the most affected by this provision since the cost of renting retail space is often more than 25%. This is the case for IJ Clinic clients Mayra Hernandez and Jesse Iniguez, who operate Back of the Yards Coffeehouse. When the long-time friends failed to attract a big-name coffee company to their neighborhood, they launched a café and roastery themselves. Although they have six employees, their other costs equal the business’s payroll.

“When lawmakers created the emergency loan program, they were certainly thinking of the small shops and restaurants that give our neighborhoods their character,” said Hermalik. “The SBA’s 75% rule is misguided and not allowed under the law. We can’t help workers by closing off loan forgiveness for their employers.”

IJ Clinic employees and clients are available to speak about the SBA’s rules and about the struggles of running small businesses at this time. Contact Andrew Wimer, IJ Assistant Communications Director, at awimer@ij.org or (703) 298-5938 to arrange.

Georgia Lactation Consultants Score Major Win at Georgia Supreme Court

ATLANTA—In a major victory for economic freedom in the Peach State, the Georgia Supreme Court this morning ruled that a constitutional challenge to the state’s new lactation consultant license will go forward. This decision gives hope to Georgians who want to teach women how to breastfeed without an expensive, difficult to obtain license and protects the right to challenge economic liberty restrictions of all kinds.

Reversing a trial court decision that had dismissed the case in 2019, the Georgia Supreme Court unanimously affirmed that it has “long interpreted the Georgia Constitution as protecting a right to work in one’s chosen profession free from unreasonable government interference.”

Although lactation consultants have worked safely throughout Georgia and the United States for decades, in 2018, the General Assembly adopted a first-of-its-kind law requiring that consultants obtain the equivalent of an advanced degree before continuing to work in the field. The law would force some 800 professionals to quit their jobs and spend several years and thousands of dollars earning a state-issued license. If a consultant works without a license, she would be subject to fines of up to $500 per day.

“This decision is a watershed,” said Renée Flaherty, the IJ attorney representing the plaintiffs. “The court made crystal clear that the Georgia Constitution protects the right to earn an honest living free from unreasonable restrictions, putting every government official in Georgia on notice that they must respect people’s rights to provide for themselves, particularly in these difficult economic times.”

The lawsuit began in June 2018, when Mary Jackson—a lactation counselor at Grady Memorial Hospital—and Reaching Our Sisters Everywhere (ROSE), the nonprofit Mary helped found to educate families of color about breastfeeding, challenged Georgia’s licensing law. Mary and ROSE help new mothers and babies learn how to breastfeed, but the new law would prevent them from doing so without obtaining the equivalent of an advanced degree. The state has agreed not to enforce the law against unlicensed lactation consultants during the litigation.

“Women have been helping other women learn how to breastfeed for millennia,” said IJ attorney Jaimie Cavanaugh. “The state cannot constitutionally require a license this onerous for an occupation this straightforward.”

“All we want is to continue doing our jobs,” said Mary Jackson. “I have been helping new mothers and babies learn to breastfeed for more than 30 years. Georgia has some of the worst rates of breastfeeding in the nation. The government should be encouraging us, not putting us out of the job.”

The case now returns to the Fulton County Superior Court to reconsider the state’s motion to dismiss.

IJ Attorney Renée Flaherty and Mary Jackson are available for interviews via teleconference. Contact Andrew Wimer, IJ Assistant Communications Director, at awimer@ij.org or (703) 298-5938 to arrange.

Arizona Engineer Will Appeal Engineering License Lawsuit

Phoenix, Ariz.—Today, Judge Connie Contes of the Maricopa County Superior Court dismissed a lawsuit brought by engineer Greg Mills and his company, Southwest Engineering Concepts (SOENCO), over Arizona’s statutes governing engineering practice. The court ruled Greg was not yet allowed to sue the Board of Technical Registration, the agency that enforces these statutes, notwithstanding the Board’s repeated threats to fine Greg and prohibit his speech and work. Following today’s decision, the Institute for Justice (IJ), a nonprofit public interest law firm that represents Greg, announced that it will be appealing the ruling.

Greg has spent his entire career working as an engineer designing and building electronics for a broad array of products. Greg has worked on everything from flashlights to satellites. After years of climbing the ranks within Phoenix-area tech and aerospace companies, Greg started SOENCO so he could work with startups and small businesses to help get their new electronic product ideas from concept to prototype.

Greg never needed to be licensed as a “professional engineer” to do his work. Indeed, 80% of all engineers in America today do not need to be licensed as professional engineers to do their work. For 12 years, Greg worked at SOENCO without any issues. But last year the Board began to threaten Greg. They sent him a proposed “Consent Agreement” that fined him $3000 and prohibited him from calling himself an engineer or continuing to work at SOENCO. When Greg refused to consent, the Board voted to double his fine.

In today’s ruling, the court dismissed Greg’s lawsuit “in its entirety for lack of subject matter jurisdiction and for failure to state a claim due to lack of standing and/or ripeness.” That means the court ruled that because Greg has not yet been shut down, he has to wait for the Board to finish its administrative process before he can defend his constitutional rights.

“The Arizona Constitution and statutes protect Greg’s right to go to court now to protect his constitutional rights that are being threatened today,” said IJ-AZ Managing Attorney Paul Avelar. “Greg’s rights to speak, to earn an honest living, and to not be fined, cannot be determined by the Board, which serves as both the prosecutor and judge. That is why we are appealing this decision.”

Tennessee Parents Blast Court Ruling Against ESA Program

Today, the Chancery Court for Davidson County declared that it would not stay its injunction halting Tennessee’s Education Savings Account Pilot Program Act, which the Court had declared unconstitutional Monday. Absent relief from Tennessee’s appellate courts, this means that the state must stop processing ESA applications for the 2020-2021 school year.

Natu Bah and Builguissa Diallo have already sought permission to appeal Monday’s ruling in the Tennessee Court of Appeals and had asked for a stay of the injunction so they could use the ESA Program during the litigation so they could send their children to better schools. Now, they may be denied that chance.

“The ESA Program was designed to empower families to escape failing public schools. The lawsuit against it is not about protecting the interests of Tennessee children,” IJ Senior Attorney Tim Keller said. “Today’s decision effectively traps children of parents like our clients, Natu Bah and Builguissa Diallo, in failing public schools.“

If permitted to continue, the program would offer a lifeline to families that would like to leave public schools that do not meet their children’s needs but who lack the financial resources to do so. Under the program, qualifying students will receive an education savings account with up to $7,300 for a wide array of educational expenses, including tuition, textbooks and tutoring services. Now, Tennessee parents waiting to use the program must wait for further action from Tennessee’s appellate courts.

Nevada Parents Will Appeal Decision in Case to Restore Tax Credits for Scholarships

Las Vegas, Nev.—Today, the Institute for Justice (IJ) announced that it will appeal a judge’s decision upholding the Legislature’s reduction of education tax credits without the super majority required by the state’s constitution. IJ represents three low-income mothers who depend on scholarships to keep their children in their chosen schools. The ruling can be directly appealed to the Nevada Supreme Court.

“The families are deeply disappointed by today’s decision but always expected that the Nevada Supreme Court would eventually hear their case,” said IJ Attorney Joshua House. “Parents all over Nevada are struggling to keep their children in the schools they have chosen for them. We are going to continue fighting on their behalf and hopefully the Nevada Supreme Court will be more skeptical of the Legislature’s self-serving interpretation of the state constitution.”

To accommodate the state’s growing population and increasing education costs, the 2015 law that established the Nevada Educational Choice Scholarship Program increased the number of tax credits available by 10% annually. In 2019, the Legislature passed AB 458, repealing the annual 10% increase for that year and every year after. However, the legislation only passed with 13 of 21 votes in the Senate, one short of the two-thirds requirement for revenue raising measures. By removing this provision, the Legislature both increased revenue to the state and limited the growth of the scholarships, leading at least one scholarship organization to reject qualified applicants out of concern that funds will dry up.

Tennessee Parents Defending ESA Program In Court Vow To Appeal Ruling

Monday evening, the Chancery Court for Davidson County held that Tennessee’s ESA Pilot Program Act violated the Home Rule Amendment of the Tennessee Constitution and enjoined further implementation of the program. The ruling follows a February lawsuit on behalf of the governments of Nashville and Shelby County along with the Metropolitan Nashville Board of Public Education. Recognizing the significance of this ruling, the court also granted the parties the ability to immediately appeal its decision.

Back in February when Nashville Mayor John Cooper announced a lawsuit against the ESA program, Tennessee parents Natu Bah and Builguissa Diallo partnered with the Institute for Justice (IJ) to defend the program, for they intended to send their children to better schools than their government-assigned ones with the ESA program. They vowed to appeal the decision and will ask the court to stay its decision so children can benefit from the program as litigation continues.

“The parents defending the ESA Pilot Program will immediately appeal the court’s ruling,” said Arif Panju, managing attorney at the Institute for Justice. “In striking down an educational lifeline that will help low- and middle- income children trapped in failing schools, the court had to significantly expand the Tennessee Constitution’s Home Rule provision and apply it to a law that, on its face, required a county to do nothing—not exercise its power nor fund anything. That ignores the text of the Constitution.”

The program offers a lifeline to families that would like to leave public schools that do not meet their children’s needs but who lack the financial resources to do so. Under the program, qualifying students will receive an education savings account with up to $7,300 for a wide array of educational expenses, including tuition, textbooks and tutoring services. The program is available to lower- and middle-income families whose annual income is less than $66,950 for a family of four.

Since its founding over a quarter-century ago, IJ has successfully defended school choice programs across the country, including three times in the U.S. Supreme Court. This January, the U.S. Supreme Court heard Espinoza v. Montana Department of Revenue, an IJ case that asks the Court to strike down a government ban on using tax credit-funded scholarships to attend religious schools.

Homemade Food Producers Join Lawsuit to Restore Food Freedom to North Dakota

Bismarck, N.D.—Today, two North Dakota women joined a lawsuit with the Institute for Justice (IJ) against the North Dakota Department of Health for defying the Legislature and illegally crippling the Cottage Food Act. Their lawsuit aims to restore the food freedom North Dakotans had from 2017 until 2020, when North Dakotans could sell virtually any homemade food or meal directly to informed consumers. The lawsuit has taken on increased importance during the COVID-19 pandemic as consumers need access to safe, fresh and convenient food sources more than ever. The lawsuit now includes five plaintiffs, who all legally sold homemade food for years under the Act and are now banned from doing so.

“In a world changed by the pandemic, North Dakota’s farmers and families need to have the freedom to feed their communities,” said Danielle Mickelson, a Rolla farmer and mother of six who sold soups under the Cottage Food Act and wants to now start selling pizzas. “For years, I served my customers fresh, healthy products without a single complaint. I consistently get asked when I will be able to sell my soups again.”

When the North Dakota Legislature passed the Cottage Food Act in 2017, the state’s health department opposed the change. The Department twice asked the Legislature to significantly limit the foods that could be sold under the Act, and the Legislature twice refused.

Yet the Department was determined to get its way. Last fall, it proposed the same restrictions to the law, except this time in the form of administrative rules rather than legislation. The rules passed in December 2019, and went into effect January 1, 2020. Homemade food producers challenged the regulations on March 31 for being illegal and unconstitutional, but temporarily paused the case because of the pandemic. Today, the case is once again active and the Department has until May 19 to respond to the lawsuit’s allegations.

“While it was legal to sell homemade foods for three years, many North Dakotans’ way of life improved. Consumers ate fresher foods and sellers earned extra cash to support their families and farms,” IJ Senior Attorney Erica Smith said. “Now more than ever, North Dakotans need to make money from the home. But because of the Department’s illegal rulemaking, hundreds of North Dakotans have lost a way to support their farms and families.”

The Department’s regulations are illegal since agencies cannot enact regulations that contradict state law. While state law allows the sale of any homemade food or meal except certain meat products, the agency’s rule bans all homemade meals. Instead, the rules only allow the sale of shelf-stable foods, perishable baked goods and raw poultry. The regulations are also unconstitutional since they arbitrarily allow the sale of some foods, but not others—even foods that are just as safe or safer than the allowed foods. For example, the rules allow a home baker to sell cheesecake, while banning a home pizza maker from selling cheese pizza. The rules also allow the sale of raw uninspected poultry but ban the sale of chicken noodle soup.

“The Cottage Food Act benefits everyone,” said Summer Joy Peterson, a new plaintiff in the lawsuit. “It gives producers of food the chance to directly sell their products. It protects consumers because they know exactly where the food comes from and how it’s raised or manufactured. I hope our suit restores the law.”

“Sellers of homemade foods are small business owners. They care about their reputation and satisfying their customers with a quality product,” said IJ Attorney Tatiana Pino. “One of our clients, Lydia Gessele, legally donates many hot meals to charity. But the Department now makes it illegal for her to sell these same meals to support her family. This is contrary to the Act and an equal protection violation.”

This case is part of IJ’s National Food Freedom Initiative. 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, West Virginia and Wyoming.

Institute for Justice Urges States to Drop Laws Limiting Medical Availability

Arlington, VA.—This week the Institute for Justice (IJ) took another step in its campaign to rid the nation of so-called certificate of need (CON) laws, which artificially limit doctors, hospital administrators and other medical professionals’ ability to provide services in excess of a governmentally determined “need.” In a series of letters to governors across the country, IJ attorneys are urging states to put patients first by eliminating CON laws. Doing so would not only greatly increase access to healthcare, but also unleash healthcare providers’ ability to pursue innovative services and treatments.

Among the states receiving the letters are:

“Certificate of need laws are a major roadblock to medical care,” said Institute for Justice Attorney Jaimie Cavanaugh. “It shouldn’t have taken a pandemic for states to realize that limiting the ability of doctors and healthcare professionals to provide services is a bad policy, but it did. Thankfully, some states have already waived certain CON laws, but many more remain in place. As we begin to engage with state policy makers, we’re hopeful these laws will quickly become a vestige of the past.”

Certificate of need laws limit healthcare access by forcing medical entrepreneurs to get a government permission slip to offer or expand services. To do that, they must prove that their services are “needed” before they can start their business. For instance, CON laws across the country cover everything from hospitals that want to add additional ICU beds, to doctors who wants to perform outpatient surgeries, to transportation companies that would like to drive patients to routine medical appointments. If the government deems that there are already “enough” providers in a region, often based on the input of those providers, then the CON is denied. Outside a pandemic, CON laws are illogical, but during a pandemic, the administrative burdens imposed by CON laws cross the line from counterproductive to potentially deadly to patients suffering from COVID-19 and those forced to postpone other treatments because of limits on facilities and equipment.

South Carolina and Connecticut, for example, have allowed residents immediate access to healthcare by waiving CON laws for projects necessary to respond to the pandemic. In other states like New Jersey, the Department of Health expanded access to hospital beds and hospice care but failed to increase access to other needed facilities like nursing homes and assisted living facilities. IJ is encouraged to see that states are recognizing that CON laws hamper their ability to quickly respond to the healthcare needs of their residents and hopes it can aid states in crafting solutions to the problems created by CON laws.

“Certificate of need laws only serve one purpose: to protect major healthcare providers from competition,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “It doesn’t take a PhD in economics to realize that artificially limiting the supply of healthcare services will create less access to care, and yet 35 states still have CON laws in place. For instance, research shows that states with CON laws have 131 fewer ICU beds per 100,000 people than states without CON laws. We hope that as states begin the process of recovering from the COVID-19 pandemic, CON laws will be near the top of the list of laws that have no place in a post-COVID society.”

The Institute for Justice is a national nonprofit public interest law firm that has worked to remove and reduce unreasonable licensing restrictions for nearly 30 years, including in medical professions. In 2012 IJ filed its first CON lawsuit in Virginia. Today, IJ has four active medical CON cases. These cases are part of IJ’s larger mission to ensure that all Americans can earn an honest living in the profession of their choosing and that all Americans can choose the type of healthcare that is best for them. These letters identify specific laws governors should suspend and urge them to take immediate action. They are part of IJ’s campaign to ensure that government responds to the current health and economic crisis by reducing red tape for individuals instead of creating more of it.

New report: State laws may promote municipal fines and fees abuse

Arlington, Va.—Cities and towns nationwide use their power to enforce traffic, property code and other ordinances to raise revenue rather than solely to protect the public. Such “taxation by citation” is a perennial problem, but it could worsen in the coming months when many municipalities will find themselves facing budget shortfalls due to the COVID-19 crisis. A new Institute for Justice (IJ) report finds, a wide range of state laws may enable or even encourage this abusive behavior.

During the 2008 recession, many cash-strapped cities and towns saw taxation by citation as the solution to their fiscal woes and ramped up their fines and fees activity accordingly. To the extent they do the same amid the current economic slowdown, ordinary Americans—many of whom may already be struggling with illness or unemployment—will likely pay the price. Some already are: Earlier this month, the Marshall Project reported jurisdictions across the country are continuing to pursue court debt and even issuing new fines during the COVID-19 shutdown.

Released today, IJ’s new report, “Municipal Fines and Fees: A 50-State Survey of State Laws,” is the first comprehensive accounting of state laws relating to municipal fines and fees. It uses 52 legal factors to rank the 50 states according to how likely their laws, as of 2017, are to contribute to taxation by citation. The rankings offer a systematic way to diagnose possible relationships between state laws and municipal behavior—and to identify potential policy solutions.

“Regardless of what municipalities need or what state laws allow, cities should use code enforcement only to protect the public, not to shore up their finances,” said IJ Senior Attorney Bill Maurer, who is lead attorney on several IJ challenges to municipal taxation by citation schemes. “Until municipalities across the country commit to reform, IJ’s new report suggests state policymakers have a crucial role to play in shutting down municipal fines and fees abuse.”

Georgia ranks worst as the state whose laws appear most conducive to municipal taxation by citation. Georgia cities and towns enjoy broad authority to enact codes and enforce them in their own courts, and the state’s laws provide people with few protections against unjust convictions for ordinance violations or the fines, fees and other penalties that may come with them. Consequently, municipalities in Georgia may be more likely than municipalities in other states to pursue fines and fees revenue.

Georgia’s ranking is consistent with a 2017 U.S. Commission on Civil Rights report that found Georgia cities were disproportionately represented in the top 10 of all U.S. cities in fines and fees revenue as a percent of all revenue. Three of those cities were the subject of another IJ study, 2019’s “The Price of Taxation by Citation,” which found heavy reliance on fines and fees revenue puts citizens’ rights and community trust at risk.

Ranking best, North Carolina’s legal environment appears least hospitable to municipal fines and fees abuse, largely because the state does not allow municipalities to operate their own courts. The state also prohibits jailing people or suspending their driver’s licenses when they cannot pay fines and fees unless that failure was willful. As a result, cities and towns in North Carolina may find it more difficult to chase revenue through code enforcement. And, indeed, no North Carolina municipality appeared among the 840 jurisdictions reported by Governing magazine to derive more than 10% of their revenues from fines and fees or to collect more than $100 in fines and fees per adult resident. However, some observers report fines and fees abuse still occurs in the state.

The report’s rankings reflect how likely states’ laws are to contribute to municipal fines and fees abuse relative to other states’ laws, not actual municipal behavior. Municipal courts—the primary purpose of which is to process citations—are a major driver of the rankings. Such courts are present in 28 states. Not only are these courts often susceptible to municipal pressure to convict and impose fines on people, but their presence can also open the door to other provisions and practices that facilitate municipal taxation by citation.

Other key findings from “Municipal Fines and Fees” include:

  • Very few states meaningfully restrain municipalities’ financial incentive to pursue fines and fees. Only two—Kentucky and Missouri—cap municipal fines and fees revenue, and no state with municipal courts requires municipalities to send all court revenue to a neutral, non-municipal fund.
  • In line with U.S. Supreme Court precedent, 35 states have laws barring courts from incarcerating people only because they cannot pay fines and fees. However, a sizable minority—15—fail to provide this or other critical safeguards to help poor people stay out of jail.
  • Few states protect people from driver’s license suspensions for failure to pay fines and fees in traffic cases—one of the harshest means courts can use to try to force payment. Only three states—Hawaii, Nebraska and North Carolina—bar courts from suspending people’s licenses when they cannot pay court debts.

“Our results indicate the laws of too many states give cities and towns ample incentive and means to pursue fines and fees for financial gain,” said Dr. Dick Carpenter, a director of strategic research at IJ and co-author of the report. “Whether municipalities engage in taxation by citation is ultimately a matter of local policy, but state policymakers should take a hard look at how state laws may be contributing to the problem. Our rankings can provide greater insight and may point the way to reforms.”

The Institute for Justice, which litigates property rights cases nationwide, has challenged unconstitutional fines and fees across the country. In February of last year, IJ won a victory before the U.S. 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. And in 2018, IJ secured a consent decree in Pagedale, Missouri, in which the city agreed to widespread reforms of its unconstitutional ticketing scheme. IJ is currently suing Chicago over its abusive car impound system and Doraville, Georgia, over its use of code enforcement to raise revenue.

Idaho Man Sues Utah For Patently Unconstitutional, Protectionist Licensing Law

Jeremy Barnes learned the hard way how Utah is unlike any other state. A former police officer turned entrepreneur, Jeremy started a private investigation business three minutes from the Utah border in rural Franklin, Idaho, part of the Logan metropolitan area. He did so planning to serve clients in both Idaho and Utah. In Idaho, he does not need a state license, but when he applied for a private investigator license in Utah, he was told not to bother, because he doesn’t live in Utah. But Jeremy lives in an area with few people, and needs to be able to legally serve clients throughout the Logan metropolitan area for his business to succeed. Unable to expand his business without access to an entire state just minutes away, Jeremy was forced to postpone his dream of working on his private investigation business full time.

Utah is the only state in the country with a residency requirement for private investigators, and if Jeremy lived in Utah, the licensing board would be required to give him a license because he meets all the requirements for licensure. But Jeremy isn’t giving up. He’s teamed up with the Institute for Justice (IJ) to file a federal lawsuit against the Utah Department of Public Safety, challenging the state’s protectionist unconstitutional residency requirement for violating the U.S. Constitution in three ways.
“Utah’s residency requirement for private investigators is blatantly unconstitutional,” IJ Senior Attorney Jeff Rowes said. “States aren’t allowed to hoard jobs for their own citizens by walling off their economies from the rest of the country.”

Utah’s private investigator residency requirement violates the Constitution in three ways: the law violates the Equal Protection Clause by discriminating against nonresidents; it violates the Privileges and Immunities Clause by not offering the same privileges of state citizenship to nonresidents; and it violates the Commerce Clause by burdening interstate commerce by discriminating against nonresidents.

“I looked into it further and saw no other states but Utah did this. I guess I was more surprised than anything.” Jeremy said. “Given where I live, I have to work in Utah too to make my business work.”

Until 2011, when Utah overwhelmingly passed the residency requirement into law, Utah’s private investigator license requirements fell in line with every other state’s. What changed? The Private Investigators Association of Utah, the largest private investigator association in the state, stepped in to support this legislation. During committee hearings, Rep. Keith Grover said the requirement “prohibits less qualified out-of-state competitors from taking Utah jobs.” Rep. David Clark said at the same hearing what was obvious: that this was a “self-preservation bill.” In other words, this bill was protectionist, and became law because of special interests.

“Our country was founded on the idea that we’re one nation, a United States, and Utah’s law violates this basic American principle,” IJ Constitutional Law Fellow Richard M. Hoover said. “The Supreme Court has condemned this sort of economic protectionism for nearly 200 years.”

The Institute for Justice (IJ) is a nonprofit public interest law firm that fights for the right to earn an honest living. IJ is currently litigating lawsuits against protectionist laws in Minnesota, North Carolina and more.

Ohio Supreme Court Declines to Consider Whether Lower Courts May Create Barriers to Lawsuits

Akron, Ohio—Today, the Ohio Supreme Court declined to hear an appeal in a case challenging Akron’s refusal to allow Sage Lewis and The Homeless Charity to operate a homeless community on private commercial property. In appealing the permit denial, Sage’s attorneys sent the court documents to the city’s attorney. However, the Ninth District Court of Appeals ruled last year that the documents needed to be sent to the City Council itself, rather than the City Council’s attorney. Even though no law provides for this outcome and the city was in fact on notice that it had been sued, the Ninth District has created an artificial barrier to people looking to the courts to protect their rights.

“The Ohio Supreme Court eventually needs to reject this judge-made rule that prevents people from defending their rights in court,” said IJ Senior Attorney Jeff Rowes. “Rather than making the City of Akron defend its decision on the merits, the courts dismissed this case for reasons that have no practical significance.”

The result in Ohio reflects a longstanding problem across the country, as governments and courts invoke procedural technicalities to avoid reviewing the actual issues. Courts are relying on these procedural escape mechanisms to avoid addressing weighty constitutional matters. “Informing the city’s attorney of a lawsuit has the exact same effect as informing a city agency, and pretending otherwise ignores reality,” Rowes continued.

“While I am disappointed the Ohio Supreme Court isn’t taking this case, I’m determined to continue to fight and ultimately have a court answer whether the Constitution protects my right to shelter people in need on my private property,” said Lewis.

And the fight continues. After Akron denied the conditional-use permit, the city issued Sage a notice of violation, and he applied for a variance from the city’s Board of Zoning Appeals, which denied the request. That decision is currently on appeal at the Summit County Court of Common Pleas and will enable Sage and IJ to address the key constitutional questions.

“We will continue to fight on behalf of Sage and The Homeless Charity to protect their constitutional rights to provide a low-cost, private-sector alternative for addressing homelessness. Good Samaritans have used their land to shelter the neediest since ancient times, and we will not stop defending Sage and the charity’s right to do so,” said IJ Attorney Diana Simpson.

14 Months After U.S. Supreme Court Victory, Tyson Timbs Wins Civil Forfeiture Case

Arlington, Va.—In February 2019, Indiana resident Tyson Timbs made national headlines when the U.S. Supreme Court ruled that the 8th 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. Thanks to a ruling issued yesterday, however, that may soon change.

Fourteen months ago, the U.S. Supreme Court sent Tyson’s case back to the Indiana Supreme Court. That court, in turn, sent the case back to the trial court in Grant County, Indiana, with instructions to decide anew whether taking Tyson’s vehicle was unconstitutionally excessive.

Yesterday, April 27, 2020, Judge Jeffrey D. Todd, of the Grant County Superior Court, ruled in Tyson’s favor, holding that forfeiting Tyson’s $35,000 Land Rover violates the 8th Amendment. Having charged Tyson with a low-level drug crime—the court noted—“the State sought forfeiture of his only asset; an asset he purchased using life insurance proceeds rather than drug money, and a tool essential to maintaining employment, obtaining treatment, and reducing the likelihood that he would ever again commit another criminal offense.” That mismatch between crime and punishment meant that Tyson could prove “by a significant margin” that the forfeiture was excessive. The court’s judgment directs the State to return Tyson’s car “immediately.”

READ THE TRIAL-COURT RULING

“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. “To me, 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 parole officer or go to a drug recovery program or go to work? Forfeiture only makes it more challenging for people in my position to clean up and be contributing members of society.”

“As the court correctly recognized, the State’s campaign to take Tyson’s car is just the sort of abusive forfeiture that the Excessive Fines Clause is designed to curtail,” said Sam Gedge, an attorney for the Institute for Justice (IJ), which represents Tyson. “The State of Indiana has spent over a half-decade trying to confiscate a vehicle from a low-income recovering addict. No one should have to spend seven years fighting the government just to get back their car, and we look forward to the Indiana Attorney General’s restoring Tyson’s property to him without further delay.”

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.

In 2015, the trial court ruled that the police should return Tyson’s vehicle because forfeiting it would be “grossly disproportional” to his offense and thus unconstitutional under the Excessive Fines Clause. The Indiana Court of Appeals agreed. Initially, however, the Indiana Supreme Court ruled in favor of the government, holding that state and local authorities are not bound by the 8th Amendment at all when they impose fines and forfeitures. That decision was vacated by the U.S. Supreme Court in February 2020. And the case wound on. On remand from the U.S. Supreme Court, the Indiana Supreme Court announced an 8th Amendment standard for evaluating fines and forfeitures and returned the case to Judge Todd’s courtroom in October of last year. Back in Courtroom 1 of the Grant County Superior Court, Tyson took the witness stand at a second trial this past winter.

“Yesterday’s ruling brings to a close the State of Indiana’s seven-year 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, twice. 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.”

The State has not yet said whether it intends to appeal the court’s ruling.

Institute for Justice Urges States to Expand Access to Telemedicine

Arlington, Va.—As states scramble to shore up their medical systems, the Institute for Justice (IJ) is urging state regulators to drop barriers limiting residents’ access to telemedicine. In a series of letters, IJ attorneys urged regulators in Arizona, Illinois and Minnesota to immediately allow out-of-state doctors to provide medical advice using smartphone apps, video conferencing systems or even over the telephone.

“Now is not the time to allow protectionist policies like these get in the way of medical care,” said Institute for Justice Attorney Jaimie Cavanaugh. “A doctor licensed in Wisconsin or Iowa is just as capable as a doctor in Minnesota to provide front-line medical advice. Restricting telehealth appointments to in-state providers is completely unnecessary and only serves to preserve in-state doctors’ medical monopolies. Right now, many in-state providers are answering the call to work wherever they are needed. And while the majority of Americans are staying home, everyone should have access to healthcare practitioners without having to take undue risks to visit a clinic or hospital emergency room.”

For instance, in light of the pandemic, Minnesota Governor Tim Walz waived certain telehealth requirements to allow Minnesotans to use telehealth platforms to see mental health providers licensed anywhere in the United States. But his waiver should have gone further to allow Minnesota residents to use telehealth appointments to see any type of healthcare provider licensed anywhere in the U.S.

Likewise, governors in Arizona and Illinois both issued executive orders mandating health insurance coverage for telehealth services, but the orders still limit telehealth providers to in-state practitioners.

In comparison, states such as Idaho, Florida and Utah have allowed their citizens to benefit from telehealth services provided by practitioners licensed anywhere across the country. That is because virtual appointments are proven both safe and effective.

“It shouldn’t have taken a pandemic to realize that state-authorized medical monopolies are problematic,” continued Cavanaugh. “We’re urging states to drop their in-state limits in light of the current pandemic, and ultimately eliminate them once and for all.”

During the pandemic, increasing access to telehealth eases burdens on hospitals and increases safety for those staying at home. But beyond the pandemic, telehealth allows individuals that are immuno-compromised, disabled and/or living in rural areas to have access to much-needed medical care.

IJ is a national nonprofit, civil rights law firm that has worked to remove and reduce licensing restrictions for nearly 30 years, including in medical professions. IJ currently has two pending lawsuits in South Carolina and Texas challenging limits on providing medical advice online. Moreover, IJ challenges certificate of need laws and law prohibiting doctors from distributing prescription drugs. These letters are part of IJ’s larger effort to ensure that government responds to the current health and economic crisis in a commonsense fashion, by cutting red tape for individuals instead of creating more of it.

Jaimie Cavanaugh is available for interviews via phone or teleconference.

FDA Clears the Way for Family-Run Farm to Sell Truthfully Labeled Pure Skim Milk

Arlington, Va.—A family-run dairy farm in Maryland has won the right to sell its pure skim milk without having to label the milk as “imitation.” According to written FDA regulations, only skim milk with artificial vitamins A and D added can be labeled as “skim milk.” However, in response to a lawsuit, the FDA publicly released a letter to dairy farmer Randy Sowers stating that it will not enforce the regulation against him or any other dairy farmers, and it will no longer require states to enforce the regulation either. Randy teamed up with the Institute for Justice (IJ) in 2018 to sue for his right to sell truthfully labeled product.

“It never made any sense that I had to add something artificial to my skim milk in order to sell it as skim milk,” said Randy. “I’m glad that the FDA has come to its senses. Now, I will be able to ship my pure, all-natural skim milk, truthfully labeled, to customers in other states.”

The general understanding of skim milk is milk with the cream skimmed off. But FDA regulations state that skim milk can only be called “skim milk” if farmers add synthetic vitamins. For farmers like Randy, the FDA long insisted that, unless they added the synthetic vitamins, their product must be labeled as “imitation skim milk” or “imitation milk product.”

“The government does not have the power to change the dictionary,” said IJ Senior Attorney Justin Pearson. “Randy’s product was the real thing, not an imitation. It was a clear violation of his First Amendment rights to force him to use a label that wasn’t truthful. Now, this communication from the FDA should allow Randy and other dairy farmers across the nation to sell pure skim milk across the country without fear of prosecution.”

With the FDA filing sworn statements that it would not enforce against Randy, not enforce against anyone, allow states not to enforce, and not hold farmers like Randy responsible if the FDA changes its position again in the future, District Judge Yvette Kane dismissed the suit without prejudice. This would allow Randy and IJ to resume the suit should the FDA ever decide to enforce the regulations in the future. The publicly posted letter also enables other farmers to demonstrate to their local authorities that the regulations should no longer be enforced.

“Words mean what the public understands them to mean, not what the government wishes they meant,” said IJ Attorney Anya Bidwell. “Randy just wants to use the plain language that consumers understand.”

Randy’s case was the second time IJ challenged skim milk labeling requirements.  When the Florida Department of Agriculture tried to stop a Florida creamery from honestly labeling its pure skim milk as skim milk under state law, the 11th U.S. Circuit Court of Appeals overturned the law as a violation of the creamery’s First Amendment rights. Florida’s regulation was based on the FDA’s definition of skim milk.

“The First Amendment protects the rights of business owners to truthfully communicate to their customers,” said IJ President and General Counsel Scott Bullock. “The FDA so thoroughly backed down from its own rule that there was no longer enough of a dispute to obtain a judgment from a federal court. But if the government ever tries to enforce this indefensible rule again, IJ will be there to stand up for the Constitution.”

Michigan Governor Reverses Ban on Selling Home Gardening Supplies

Only a week after the Institute for Justice (IJ) sent a letter to Michigan Governor Gretchen Whitmer urging her to allow garden centers and nurseries to operate during the COVID-19 pandemic, the governor has done exactly that. On Friday, she rescinded an earlier executive order that had prohibited these vital businesses from operating and issued a new order allowing them to reopen, subject to social-distancing guidelines.

“During these difficult times, gardening has become a vital source of sustenance and sanity for countless Americans,“ said Michael Bindas, an IJ senior attorney who directs IJ’s National Food Freedom Initiative and authored the letter to Whitmer. “Growing food at home is the surest and safest way for Michiganders to meet their food needs in the midst of the ongoing pandemic, and garden centers and nurseries are vital in helping them obtain the tools and resources to do so. Thankfully, Governor Whitmer has finally recognized just how important these businesses are in ensuring Michiganders are able to provide for themselves and their families during these times.”  

Whitmer’s order takes effect immediately.

Dunedin Homeowner Wins Round One in Tall Grass Lawsuit

Dunedin, Fla. — Yesterday, Jim Ficken— a Dunedin, Fl. homeowner facing $30,000 in fines and even foreclosure for letting his grass get too long—won round one in court. A judge in the Middle District of Florida denied the city’s motion to dismiss Jim’s lawsuit. Now the lawsuit, which argues the city’s imposition of $500 daily fines for trivial home maintenance issues violates the Excessive Fines clauses of the U.S. and Florida Constitutions, will proceed to final judgment.

“Nobody should incur tens of thousands of dollars in fines and risk losing their property because their grass grew too long,” IJ Attorney Ari Bargil said. “The constitution expressly protects against fines that are excessive—and excessive is precisely what these penalties are. No one should have to pay $30,000 for tall grass. Yesterday’s decision takes us one step closer to vindicating Jim’s constitutional rights in court.”

The challenge stems from a two-month period in the summer of 2018, during which Jim Ficken was in South Carolina tending to his late mother’s estate. While Jim was out of town, the man he had hired to tend to his lawn passed away unexpectedly and the grass was left to grow unabated. Jim eventually cut the grass himself after he returned home, but by then it was already too late. Dunedin had been fining Jim $500 per day for months, starting when he was out of the state.

“Dunedin made regular visits to Jim’s property to check for noncompliance, but never once tried to tell Jim that he was under investigation or that he was racking up violations,” IJ Attorney Andrew Ward said. “But the government is supposed to provide reasonable notice. The city’s treatment of Jim violated his right to due process, and we look forward to showing just that in court.”

All told, Dunedin told Jim he owed the city $30,000 in fines. But $30,000 is a significant amount of money for Jim, and because he did not pay it, the city voted to foreclose on his home.

“When I found out how much Dunedin said I owed in fines, I was stunned,” said Jim. “They never even told me that I was going to be fined until I already owed them almost $30,000. I’m willing to pay a fine for violating the ordinance, but the punishment should fit the offense.”

The case is part of a broader effort by the Institute for Justice to put a stop to out-of-control municipal fines.

Institute for Justice Calls on States to Allow Food Trucks to Serve Hungry Truck Drivers Delivering Essential Goods During COVID-19

Arlington, Va.—The Institute for Justice (IJ) sent open letters to six states calling on authorities to rescind their prohibition on food trucks operating at highway rest areas. Commercial truck drivers are delivering essential goods like medical devices, groceries and PPEs during the COVID-19 pandemic. Now states can help drivers keep doing just that by letting mobile vendors provide them with fresh, hot meals. But, regulators in Georgia, Illinois, Maryland, North Carolina, Texas and Virginia are still preventing food trucks from providing hot meals to hard working truck drivers.

“Beating COVID-19 means getting critical supplies to where they need to go. That means supporting America’s truck drivers, including giving them more food options,” said IJ Legislative Counsel Jessica Gandy. “But in many states, stay-at-home orders have closed restaurants and left those drivers hungry.”

Federal policy has long made it harder for drivers to get the services they need to operate safely. For decades, the federal government has prohibited commercial food trucks from operating at rest areas. States had to honor that prohibition or else risk losing their federal highway funds. This prohibition meant drivers traditionally had to fend for whatever they might happen to find in vending machines. But in response to the ongoing pandemic, the Federal Highway Administration (FHWA) has declared that it will not enforce that prohibition. Many states have followed suit, including Arizona, Arkansas, California, Connecticut, Florida, Idaho, Indiana, New Mexico, Ohio, and West Virginia. But Georgia, Illinois, Maryland, North Carolina, Texas and Virginia have yet to act, spurring IJ to action.

“Food trucks have a vital role to play in America’s COVID-19 response. By operating at rest areas, these vendors can provide truck drivers with additional food options that help with their long hours on the road,” said IJ Senior Attorney Robert Frommer. “States should get out of the way by letting these kitchens on wheels help feed this essential industry.”

But even while COVID-19 rages, entrenched interests like truck stops and restaurants are fighting to reduce options for drivers. In a letter to the FHWA, a coalition led by the National Association of Truck Stop Owners (NATSO) complained about how food trucks operating at rest areas could hurt their bottom line. Even though the primary goal should be getting hot, fresh food to truck drivers, NATSO asked the FHWA to allow food trucks only at rest areas that aren’t a competitive threat to its members and to resume banning food trucks altogether once the pandemic comes to an end.

“NATSO’s demand that the FHWA drive off the competition, the public be damned, is shortsighted and counterproductive,” said Frommer. “Government exists to keep the public safe, not to dole out special protections to whatever industry group can lobby the best. Let truck drivers decide for themselves whether they want to go to a rest stop or to a food truck. They don’t need the government making that decision for them.”

IJ is a national nonprofit organization that has worked to remove and reduce licensing restrictions for nearly 30 years. Through its National Street Vending Initiative, IJ challenges anti-competitive laws that harm street vendors by unconstitutionally restricting their right to earn an honest living. The initiative helps vendors defeat such restrictions by bringing lawsuits in state and federal courts, equipping vendors to fight these restrictions through activism, and educating the public about the social and economic importance of street vending. IJ’s report on “Seven Myths and Realities About Food Trucks” tackles many of the common arguments against allowing food trucks. IJ also recommended policy proposals to encourage food trucks in the report “Food Truck Freedom.” These letters are part of IJ’s overall efforts to respond to the current health and economic crisis by working to cut red tape hampering individuals’ ability to help one another.

IJ Legislative Counsel Jessica Gandy, and Senior Attorney Robert Frommer, are available for interviews via phone and teleconference services. To schedule, please contact Matt Powers at mpowers@ij.org or call (631) 949-2328.

IJ Files Two Lawsuits Challenging Laws Limiting Medical Access

Arlington, Va.—Today, the Institute for Justice (IJ) partnered with medical professionals in two states to challenge laws that limit medical access and entrepreneurship. The lawsuits, which target certificate of need (CON) laws in Nebraska and North Carolina, challenge the constitutionality of laws that artificially limit doctors, hospitals and other medical professionals’ ability to provide services in excess of governmentally determined “need.” The lawsuits come amidst a nationwide shortage of hospital beds, which has been exacerbated, in part, by state CON laws.

“It shouldn’t have taken a worldwide pandemic to realize that putting arbitrary limits on the availability of medical facilities and equipment is a shortsighted policy,” said Renée Flaherty, an attorney at IJ who filed the NC lawsuit. “Certificate of need laws are a relic of a policy abandoned by the federal government decades ago. At this point, their only purpose is to protect health care conglomerates’ monopoly on care. We filed these lawsuits today to ensure that we don’t repeat the mistakes of the past.”

Certificate of need laws limit healthcare access by forcing medical entrepreneurs to get a government permission slip to offer or expand services. To do that, they have to prove that their services are “needed” before they can start their business. For instance, CON laws across the country cover everything from hospitals that want to add additional ICU beds, to doctors who wants to perform outpatient surgeries, to transportation companies that would like to drive patients to routine medical appointments. If the government deems that there are already “enough” providers in a region, then the CON is denied.

Nebraska and North Carolina require CONs for a number of medical services:

  • In Nebraska, operating a non-emergency medical transport requires a “certificate of public convenience and necessity.” Getting the certificate requires a business owner to prove not only that they are able to safely provide service, but also that their business will not financially impact existing providers. Essentially, an entrepreneur has to get their future competitors’ permission to start their business. Omaha Home healthcare business-owner Marc N’Da applied for the CON, was declared “fit, willing, and able” to provide service, but was denied the CON after existing transportation companies objected.
  • In North Carolina, state regulators determine the need for surgery centers on a county-by-county basis. With government-determined “need” already being met almost exclusively by existing hospitals, it is practically impossible to open an outpatient surgery center in most parts of the state. Dr. Jay Singleton owns an ophthalmology practice in New Bern. While he could safely provide common outpatient surgeries at his facility, he is required to perform certain procedures at a local hospital. Surgeries at the local hospital cost thousands of dollars more than what Dr. Singleton could charge at his center.

N’Da and Dr. Singleton partnered with IJ to file lawsuits challenging CON laws under the Nebraska and North Carolina state constitutions. A win in either case would pave the way for future CON challenges.

In total, 35 states plus the District of Columbia have some form of CON law in place. Because CONs intentionally limit the supply of health services, 22 of those 35 states have waived certain requirements in light of the COVID-19 epidemic. Both North Carolina and Nebraska waived CONs for adding hospital beds during the crisis. A 2016 study by the Mercatus Center at George Mason University found that in states where there is a CON for acute hospital beds, there are on average about 131 fewer beds per 100,000 people.

“Research demonstrates that CON laws fail to control routine healthcare costs, and, in many cases, patients pay significantly more because a few companies monopolize services,” said IJ Attorney Will Aronin. “At the same time, CON laws also limit the growth of medical providers and their ability to respond to market forces. If a hospital thinks it needs more beds, it should be able to add those beds without getting permission from the government. It is time for states to let hospitals, doctors and entrepreneurs bring more competition and choice to the healthcare marketplace.”

Challenging CONs is one part of the Institute for Justice’s effort to help individuals and small businesses fight the COVID-19 pandemic. In recent weeks, IJ has urged state medical boards to reevaluate scope-of-practice regulations requiring that nurse practitioners be supervised by a physician. The IJ Clinic on Entrepreneurship and activism teams created websites to help connect small businesses offering essential products and services to consumers in Chicago and Washington, D.C. IJ filed a lawsuit on behalf of a Washington state woman stopped from running a “little free pantry” to help her neighbors in need. IJ also has existing lawsuits against CONs in Kentucky and Iowa.

“The Institute for Justice calls on states to take immediate action to lower barriers so that people can get greater access to health care and essential resources during the COVID-19 pandemic,” said IJ President and General Counsel Scott Bullock. “This is part of IJ’s long-term strategy to eliminate barriers to competition and choice in health care and many other occupations.”

New Lawsuit Challenges Nebraska’s Non-emergency Medical Transportation Cartel

Omaha, Neb.—If you are allowed to drive a home health patient to get groceries, can that passenger also get her prescription filled? In Nebraska, that would be against the law unless you had permission from the government to operate a non-emergency medical transportation company. And, by the state’s certificate of need or “CON” law, the only way to get permission is for the existing transportation companies to allow you to operate. Today Omaha and Lincoln home health business owner Marc N’Da teamed up with the Institute for Justice (IJ) to file suit asking Nebraska courts to strike down the law for violating the state’s constitution.

Marc N’Da is an American success story and a problem solver. He came to the United States as a political refugee with just $60. He worked his way through college and graduate school. When he saw seniors in his community struggling to get good health care, he started his home health business, Dignity Home Care. Now he wants his employees to be able to drive patients to the pharmacy and regular doctors’ appointments, but his competition will not allow the state to give him a “certificate of public convenience and necessity.”

“Marc’s employees can drive patients to Wal-Mart but not the Wal-Mart pharmacy. That makes no sense,” said IJ Attorney Will Aronin. “The Nebraska Constitution does not allow government power to be used simply to protect favored businesses from competition. If you meet the qualifications to open a business, your competitors should not be able to stop you from operating.”

Dignity Home Care is already approved to transport patients for routine errands. In 2017, Marc applied for the non-emergency medical transport certificate and the government found that he was “fit, willing, and able” to provide service. Yet it is not enough to be qualified, an applicant must also prove that the business is “required by public convenience and necessity.” And the government bases this determination on whether the existing companies object. When the state denied his application, Marc had to shelve his plans to purchase additional vehicles and hire new employees.

“I’ve seen patients stranded at doctors’ offices or miss appointments because of the poor service offered by the companies they are forced to use right now,” said Marc. “The current cartel doesn’t care about their customers because they know that the government will protect their business. All I want is the opportunity to compete and help raise the quality of service for everyone.”

Nebraska’s CON requirement originated in a long-debunked effort to control costs. Because CONs intentionally limit the supply of health services, a number of states have waived certain requirements in light of the COVID-19 epidemic. In fact, Nebraska waived its CON to allow hospitals to add beds or convert beds in order to care for COVID-19 patients.

Starting in 1974, Congress offered incentives for states to pass CON laws, hoping that they would restrain rising health costs. However, just 12 years later the federal government reversed course after studies showed that costs were not being controlled. And while the Bush, Obama and Trump administrations have all encouraged states to eliminate CONs, only a dozen states have done so.

“CONs fail to control costs, but they succeed at keeping competition out of health care,” said IJ Senior Attorney Justin Pearson. “Now especially is the time to increase access to medical care. Nebraska’s CONs limit patient access and choice for the benefit of a few connected insiders.”

Nebraska’s CON law grants extraordinary power to a handful of companies, allowing them to protect their private interests. Marc’s suit maintains that the CON law violates three different provisions in the Nebraska Constitution: the prohibition on special legislation, the guarantee of due process of law, and the prohibition on granting special privileges or immunities.

The Institute for Justice is a nonprofit public interest law firm that fights for the right to earn an honest living. IJ is currently challenging medical CON laws in Kentucky, North Carolina and Iowa. IJ also has a long history of challenging transportation cartels across the country.

Marc N’Da and IJ Attorney Will Aronin are available for interviews via phone and teleconference services. To schedule, please contact Andrew Wimer, IJ Assistant Communications Director, (703) 298-5938 or awimer@ij.org.

N.C. Doctor Sues to End Restrictions on Medical Facilities

For the last month, governors across the country have clamored to find or build hospital ICU beds to deal with the influx of COVID-19 patients in need of advanced medical care. To do that, many states, including North Carolina, were forced to suspend laws artificially limiting the number of hospital beds available in a state. These laws, called “certificate of need” (CON) laws, require state permission to add hospital beds or a variety of other services. Unfortunately, these suspensions may come too late: by some estimates North Carolina is predicted to run out of hospital beds during the height of the COVID-19 pandemic.

Now, a North Carolina doctor is partnering with the Institute for Justice (IJ), a non-profit public interest law firm, to challenge the state’s CON law in an effort to ensure that this situation never happens again. The lawsuit was filed in conjunction with a similar challenge in Nebraska.

“Certificate of need laws have exacerbated North Carolina’s ability to respond to the current crisis,” said Renée Flaherty, an attorney at the Institute for Justice. “In fact, the dozens of states that still have CON restrictions on hospital beds average nearly half as many ICU hospital beds as those states that have eliminated their CON requirements. Limiting the number of hospital beds, or other medical services, only hurts the patients and others who would benefit from greater access to care.”

Although hospital beds are at the heart of the current crisis, North Carolina’s CON restrictions go well beyond hospital beds; the state’s CON laws cover 25 different health services—making it the fourth most restrictive state in the country. Dr. Jay Singleton, who filed today’s lawsuit, wants to offer one of these services: affordable and life-changing eye surgeries at his office in New Bern, North Carolina. Although his office has everything necessary to safely perform outpatient surgical procedures, he is not allowed to because a board dominated by health care industry insiders has determined that there is no “need” for a facility that would compete with a nearby hospital, CarolinaEast. So Dr. Singleton must perform his surgeries there, even though it would be cheaper and more convenient for his patients to receive care at his own facility. (At the moment, Dr. Singleton has postponed all elective surgeries in compliance with to state emergency orders.)

Dr. Singleton thinks that competition is critical to maintaining quality, affordable health care, especially in an age when hospitals are overburdened and can’t provide the services patients need at an affordable price. Thankfully, the North Carolina Constitution specifically outlaws state-enforced monopolies and protects citizens’ rights to earn an honest living.

“The only reason Dr. Singleton can’t perform eye surgeries in his office is that the hospital down the street is already doing so,” said IJ attorney Josh Windham. “That’s unconstitutional: The North Carolina Constitution expressly forbids the government from picking winners and losers in the marketplace.”

The North Carolina Constitution outlaws monopolies and special privileges and protects citizens’ right to earn an honest living. In fact, the last time the North Carolina Supreme Court considered a previous version of the state’s CON law, it struck it down for just these reasons. The law was subsequently re-passed with minimal changes.

“Our government in North Carolina has created a monopoly that decreases patient choice and access while increasing profits for hospitals with CONs,” said Dr. Singleton. “It is ludicrous to think that the state has put an artificial barrier between me and the surgical care of my patients.”

Dr. Singleton is not alone in his frustration with the state’s CON law. Across the country, medical innovators have been forced to grapple with them since they were put in place in the mid-1970s. Since then, 14 states, including California and Texas, have eliminated their CON laws all together.

“CON laws are destructive,” said Windham. “Nothing illustrates this better than how recent shortages in the supply of medical services and equipment have hamstrung our ability to respond to the COVID-19 pandemic. It’s time to eliminate these outdated laws so that doctors can do what they do best: provide services that patients need, right when they need them.”

Dr. Singleton isn’t the first North Carolina doctor to challenge the state’s CON law. In 2018, IJ challenged the CON law on behalf of a Winston-Salem surgeon, Dr. Gajendra Singh. Unfortunately, Dr. Singh had to close his imaging center earlier this year, in part because of the enormous costs imposed by the CON law. Dr. Singh’s lawsuit could not continue, but Dr. Singleton has taken up the mantle to end the healthcare monopoly once and for all.

This is also not IJ’s first time challenging CON laws in court. IJ has fought to end CON laws in Virginia and Iowa, and it is currently litigating cases in Kentucky and Nebraska.

Supreme Court Requires Unanimous Jury Verdicts in Criminal Cases

Yesterday, in Ramos v. Louisiana, the Supreme Court ruled that the Sixth Amendment to the U.S. Constitution requires a unanimous jury verdict of guilty to convict someone of a serious crime in state court.

The Institute for Justice (IJ), which won a unanimous decision last year in a related case, filed an amicus brief in Ramos urging the Court to overturn Apodaca v. Oregon, a 1972 decision  which permitted non-unanimous verdicts in state court.  For the last 48 years, two states—Oregon and Louisiana—have allowed non-unanimous criminal convictions when as many as two jurors believe the defendant is innocent.

With yesterday’s decision, the Supreme Court has overturned Apodaca and reversed Ramos’s conviction, making the Sixth Amendment’s guarantee of a unanimous jury verdict the law in all 50 states. Wesley Hottot, a senior attorney at the Institute for Justice who authored the amicus brief, issued the following statement:

“The decision in Ramos follows from the unanimous decision from last term in Timbs v. Indiana. The Supreme Court held in Timbs that state and local governments must comply with the Eighth Amendment’s Excessive Fines Clause when they strip someone of their property using civil forfeiture, without a criminal conviction.  In Ramos, the Court has insisted that state and local governments also comply with the Sixth Amendment’s guarantee of a unanimous verdict of guilt when they attempt to convict a person of crime.  Both things have to be true, based on our nation’s history and traditions.”

In its opinion, the Court repudiated the so-called “two-track” approach to applying the Constitution to state laws, which the court had relied on in Apodaca.  Relying on Timbs, Justice Gorsuch’s opinion for the majority reiterates that there is “no daylight” between the meaning of a constitutional right in federal court and its meaning in state court.

Locking horns with a dissent authored by Justice Alito (joined by Chief Justice Roberts and Justice Kagan), Gorsuch ends his opinion with a call for judicial engagement regardless of the perceived costs or inconveniences:

“[T]he best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.  But where is the justice in that?  Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory.  But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”

“This decision is a model of judicial engagement,” said Scott Bullock, the president and general counsel of IJ.  “Our constitutional rights depend on the willingness of judges to enforce them.  Courts across the country should follow the Supreme Court’s example in Ramos and never hesitate to follow the Constitution’s commands.”

Institute for Justice Calls on Michigan Governor to Open Garden Centers

As many Americans find themselves sheltering in place at home, home gardening is growing increasingly popular. But in Michigan, thanks to a series of executive orders issued in response to the COVID-19 pandemic, garden centers, greenhouses, and plant nurseries have been effectively barred from selling to the public through April 30.

On Wednesday, the Institute for Justice sent a letter urging Governor Gretchen Whitmer to reconsider her “unconstitutional prohibition” on selling plants, seeds, and home gardening supplies. “Growing food at home is the surest and safest way for Michiganders to meet their food needs in the midst of the ongoing pandemic,” the letter notes, which is why states like Illinois and Minnesota have recognized garden centers and nurseries as essential or critical businesses. The letter details the harms imposed on both small business owners, who operate in a highly seasonal industry, and on Michiganders, who wish to secure their own “vital source of sustenance and sanity.”

Around the same time that IJ sent the letter to the governor, she appeared on the Today Show, explaining that the restrictions in her executive order were ultimately of no moment because it was snowing in parts of Michigan. According to Whitmer, “The fact that we’re cracking down on people…planting…for a couple more weeks isn’t going to meaningfully impact people’s ability to do it, because the snow will do that in and of itself.”

“There is no inclement weather exception to the Constitution,” said Michael Bindas, senior attorney at the Institute for Justice and author of the letter to Whitmer. “Moreover, much of Michigan is already in or entering prime season to plant vegetable seedlings and transplants, or to start vegetable seeds outdoors. Depriving people of this prime planting window will directly impact their ability to provide sustenance for themselves and their families.”

The letter over Michigan’s garden ban is part of a new effort by the Institute for Justice to expand economic opportunity and counter government overreach during the pandemic. IJ has urged state medical boards in California, Florida, Georgia, North Carolina, Oklahoma, Texas, and Virginia to reevaluate scope-of-practice regulations that ban nurse practitioners from offering their services–even as volunteers–without physician supervision. In Chicago, Washington, DC, and Miami, IJ has launched websites that let locals shop in place from neighborhood businesses, providing both buyers and sellers with a critical lifeline amidst the pandemic. 

And through its National Food Freedom Initiative, the Institute for Justice has secured a landmark reform in Florida that protects the right to garden at home, and liberalized home baking laws in Kentucky, Maryland, Minnesota, West Virginia, Wisconsin, and Wyoming, as well as the District of Columbia. 

Although the government has the power to take action during the COVID-19 pandemic, those actions must be reasonable and substantially related to public health,” said Scott Bullock, president and general counsel at the Institute for Justice. “To avoid litigation, we urge the governor to amend or clarify her executive order so that it will no longer impede Michiganders individual liberties.

Amid Crisis, Neighbor Fights for Right to Help Feed Others in Need

Clarkston, Wash.—When Kathy Hay set up a little free pantry in her backyard last December, she had no idea that an unprecedented crisis was about to create thousands of newly-jobless neighbors scrambling to find food for their families. At the time, she just wanted to share food with her lower-income neighbors and give back to a community that had supported her when she was having a hard time putting food on her own table.

Unfortunately, no good deed goes unpunished. Rather than sending her a note of thanks, Asotin County sent her a cease and desist letter in February, demanding that she shut down the pantry. To reopen, the county said that she has to pay annual fees, a fine and obtain a burdensome permit. If she tried to reopen without complying, the county threatened criminal prosecution.

Now Kathy and two of her neighbors who used the pantry have partnered with the Institute for Justice to f