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Final Victory for North Dakota Cottage Food Producers

The Cottage Food Act is safe after the N.D. Health Department makes clear the legal fight is over

Final Victory for North Dakota Cottage Food Producers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

READ THE COURT’S OPINION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 


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

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

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

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

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

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

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

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

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

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

Maine School Choice Case Appealed to Supreme Court Now Fully Briefed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Illinois Legislature Sends Right to Garden Bill to Governor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Minnesota Soon to Dramatically Expand Cottage Food Businesses

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

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

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

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

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

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

 

New Alabama Law Protects Innocent Owners From Civil Forfeiture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alabama Soon to Dramatically Expand Homemade Food Businesses

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To-Go Cocktails Now Permanently Legal in Florida

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

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

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

New Law Allows Montana Doctors to Dispense Medications Directly to Patients

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arizona Governor Signs Important Forfeiture Reform Bill

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

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

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

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

HB 2810 makes five important reforms:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vietnam Vet Beaten by Police Continues Supreme Court Appeal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Florida Legislature Passes Bill to Boost Homemade Food Businesses

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

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

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

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

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

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

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

Newly Approved Bill Clears the Way for Home-Based Businesses

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

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

Arizona Legislature Sends Important Forfeiture Reform Bill to the Governor

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

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

If enacted, HB 2810 would:

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

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

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

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

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

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

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

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

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

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

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

Federal Court Upholds $30,000 Fines for Tall Grass

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

Read the decision

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

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

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

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

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

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

Arkansas Untangles Hair Stylists from Licensing Red Tape

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

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

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

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

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

Newly Passed Bill Eliminates Patchwork of Local Occupational Licenses in Florida

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

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

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

Florida Legislature Approves School Choice Scholarship Expansion

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

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

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

Supreme Court Hears Major Donor Privacy Cases

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

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

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

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

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

About the Institute for Justice

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

Supreme Court Refuses to Hear Case Challenging Federal Forfeiture Abuse

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

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

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

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

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

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

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

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

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

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

Florida Barbers Free to Leave the Shop Under Newly Approved Bill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Mexico Enacts Landmark Bill Against Qualified Immunity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This case is part of IJ’s broader initiative to protect occupational speech. In 2010, IJ successfully challenged the District’s licensing requirement for tour guides as a violation of the First Amendment, and IJ successfully represented a psychologist who was prosecuted by Kentucky’s psychology licensing board for distributing a newspaper advice column in the state without a license. IJ is also currently challenging a Texas law forbidding licensed veterinarians from giving online advice, as well as Arizona’s attempt to prohibit a trained engineer from truthfully describing himself as an “engineer.”

Homemade Food Businesses Could Boom if Florida Legislature Passes Sensible Reforms

Tallahassee, Fla.With the Florida House of Representatives’ passage of House Bill 663, Florida moves one step closer to reforming rules on selling shelf-stable homemade food, commonly known as cottage foods. Florida law currently includes outdated requirements that do not exist in most states, and this overdue reform could lead to the creation of new small businesses across the Sunshine State. The Institute for Justice (IJ), which supports cottage foods reform across the U.S., strongly encourages the Florida Legislature to empower home entrepreneurship by passing the bill. This will happen if the Florida Senate passes the bill’s Senate companion, SB 1294. 

Eighty-three percent of cottage-food entrepreneurs are women, said Florida Office Managing Attorney Justin Pearson. This reform will create hundreds, and possibly thousands, of women-owned businesses around the Sunshine State. 

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

“We want to thank the lead sponsors, Representative Salzman and Senator Brodeur, for doing a terrific job advocating for this important bill,” said Pearson. “We also want to thank the bill’s large and bipartisan group of supporters, including Speaker Sprowls.” 

Florida currently lags behind many other states in providing cottage foods producers the freedom they need to start sustainable home businesses. House Bill 663 and its companion, Senate Bill 1294, would reform cottage foods regulation in four critical ways: 

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

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

Major Class Action Lawsuit Against TSA and DEA Over Airport Seizures Achieves First Round Victory

PITTSBURGH—When travelers go online to find out whether it is legal to fly with cash, the government tells them that there are no restrictions on traveling with any amount of money on domestic flights. What it does not tell flyers is that, upon seeing cash, Transportation Security Administration (TSA) screeners will detain them and turn them over to law enforcement, who will take their money without any cause for suspicion and without filing any criminal charges. Now, a Fourth Amendment, class action lawsuit filed by the Institute for Justice (IJ) to end these unconstitutional practices by the TSA and the Drug Enforcement Administration (DEA) will move forward in federal court after a judge rejected the government’s motion to dismiss.

“TSA and DEA routinely violate Americans’ Fourth Amendment rights at airports across the country by detaining them for doing something completely legal: flying with cash,” said IJ Senior Attorney Dan Alban. “Seizing and forfeiting someone’s savings should not be done lightly, yet we’ve documented how easy it is for law enforcement to take money at airports without any evidence of a crime. Now, thanks to our class action lawsuit, we are going to uncover the truth behind how and why the government is targeting innocent flyers, and ultimately put an end to this predatory practice.”

The class action lawsuit was filed in January 2020 on behalf of Terry Rolin and his daughter Rebecca Brown. TSA and DEA officials seized Terry’s life savings of over $82,000 from Rebecca as she was flying from Pittsburgh to her home outside Boston, where she intended to open a joint bank account to help care for her father. After IJ filed the lawsuit, DEA returned Terry and Rebecca’s money, but only after holding it for over six months without any accusations of criminality, let alone criminal charges.

Additional named plaintiffs joined the suit in July 2020. DEA seized $43,000 from Stacy Jones at the Wilmington, North Carolina, airport in May 2020 as she was flying home to Tampa. The agency returned her money after she joined the lawsuit and nine months after it was seized. Once again, criminal charges were never filed.

“TSA’s and DEA’s unconstitutional conduct across the country suggests that the agencies are more interested in seizing cash than securing safety,” said IJ Attorney Jaba Tsitsuashvili. “And these seizures subject people to a confusing bureaucratic process, without an attorney provided, where a single misstep could mean losing their life savings forever. Even those who succeed in getting their money returned are deprived of it for months or years, often upending their lives. No one should lose their money without a criminal conviction.”

U.S. District Court Judge Marilyn Horan yesterday rejected the government’s motion to dismiss the plaintiffs’ three class action claims. Those claims are 1) that the TSA exceeds its statutory authority by detaining travelers and their cash after the security screening has ended; 2) that the TSA violates the Fourth Amendment by detaining travelers and their cash without reasonable suspicion of criminality; and 3) that the DEA violates the Fourth Amendment by detaining travelers without reasonable suspicion and seizing their cash without probable cause.

National School Choice Advocate Stands Ready to Defend Kentucky’s New Educational Choice Program Against Anticipated Legal Challenge

Frankfort, Ky.—This evening, the Institute for Justice (IJ) announced that it stands ready to defend against an anticipated legal challenge to Kentucky’s newly enacted Education Opportunity Account (EOA) Program by opponents of educational choice. Earlier this evening, the Kentucky General Assembly overrode Gov. Andy Beshear’s veto of the legislation creating the program.

The EOA Program authorizes a tax credit for private donations to nonprofit account-granting organizations, which, in turn, provide funds to private accounts for low- and middle-income families to use for expenses incurred in the education of their children. The General Assembly created the program “to give more flexibility and choices in education to Kentucky residents and to address disparities in educational options available to students.”

“The Education Opportunity Account Program provides desperately needed options and opportunity to Kentucky families,” said IJ Senior Attorney Michael Bindas. “The program is perfectly constitutional, and the Institute for Justice stands ready to defend it.”

IJ Attorney Milad Emam added, “The need for educational opportunity is greater now than ever, and the Institute for Justice will not let opponents of choice take it away.”

IJ is the nation’s leading legal defender of educational choice programs, having won numerous litigation fights, including three at the U.S. Supreme Court, the most recent of which was the landmark decision Espinoza v. Montana Department of Revenue in 2020. IJ is currently defending choice programs in Nevada, North Carolina and Tennessee and currently challenging the exclusion of religious options from choice programs in Maine, New Hampshire and Vermont.

Supreme Court Rules a Police Shooting Is a “Seizure” Officers Must Justify Under the Fourth Amendment

Arlington, Virginia—Today, the Supreme Court held in Torres v. Madrid that a woman who was shot in the back by plain-clothed police officers may proceed with her Fourth Amendment challenge to the shooting. In a 5–3 decision, the Court rejected the officers’ argument that Roxanne Torres was not “seized” by their bullets merely because she was not immediately killed or incapacitated.

“The Supreme Court’s decision in Torres v. Madrid is a win for government accountability and our constitutional rights,” said Institute for Justice (IJ) Attorney Jaba Tsitsuashvili. “The Court made clear that the Fourth Amendment’s protection of our personal security applies whenever police use physical force to restrain a person.” In a friend-of-the-court brief, IJ joined a coalition of civil liberties groups to explain how a contrary holding would immunize a wide range of police violence from constitutional scrutiny.

The case arises from a lawsuit brought by Torres against two New Mexico State Police officers. Torres was sitting in her car when two people she could not identify as police officers tried to open her locked car door. The officers were apparently in the area looking for someone else. Thinking she was being carjacked, Torres started driving away. In response, the officers fired a barrage of bullets—two into Torres’ back and thirteen into her car—that left her permanently injured. Torres, wounded but able to continue driving, eventually got herself to a hospital.

The 10th U.S. Circuit Court of Appeals tossed Torres’ case against the officers out, holding that because their bullets did not immediately incapacitate Torres, they did not “seize” her despite their intentional use of deadly force. The Supreme Court rightly reversed.

“We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued,” wrote Chief Justice John Roberts for the Court. Relying on the common law of arrest, the Court held that for physical force, it is the officers’ conduct—not the victim’s response—that dictates whether a seizure has occurred.

The Court rejected the idea, laid out by three dissenting Justices, that old cases on the topic could not govern the officers’ use of bullets, because those cases dealt only with the “laying on of hands.” In rejecting this “artificial line,” the Court recognized that a seizure “can be as readily accomplished by a bullet as by the end of a finger.” It went on to explain: “We will not carve out this greater intrusion on personal security from the mere-touch rule just because founding-era courts did not confront apprehension by firearm.”

“The Supreme Court’s decision today is an important step towards securing Americans’ persons and property,” said IJ Senior Attorney Robert Frommer. “It wisely recognizes that government actors must justify their actions when they use force to violate our personal security, even if that force does not lead to our immediate incapacitation. And as the Court correctly emphasized, the Fourth Amendment’s protections apply no matter what type of force those actors use.”

“Americans can only be secure in their constitutional rights when they can hold officials accountable for violating them,” said Scott Bullock, president and general counsel for the Institute for Justice. “Today’s decision is a victory not just for government accountability, but for ensuring that our right to be secure in our persons and property is just as robust as the Founders intended.”

Drone Operator Grounded by Self-interested Government Board Fights Back

Raleigh, N.C.—Drones are revolutionizing the way we view the world, making aerial photography easier and less expensive. But drone entrepreneurs on the cutting edge are finding a very old industry standing in the way: land surveying. In North Carolina, the Board of Examiners for Engineers and Surveyors sends warnings to drone operators saying that certain photography amounts to surveying without a license and threatens them with possible criminal prosecution.

Now, drone entrepreneur Michael Jones is fighting back. The images and maps that Michael was creating for willing customers were not being used to set legal boundaries; they were purely for informational purposes. And creating and sharing information is speech protected by the First Amendment. To protect his right to free speech, Michael is teaming up with the Institute for Justice to file a federal lawsuit.

“Drone technology may be new, but the principles at stake in Michael’s case are as old as the nation itself,” said Sam Gedge, an attorney with the Institute for Justice. “Taking photos and providing information to willing clients isn’t ‘surveying’; it’s speech, and it’s protected by the First Amendment.”

Michael is a Goldsboro, North Carolina, photographer and videographer who expanded into drone imagery about five years ago. Michael’s drones took photos of homes for sale, buildings under construction, and a warehouse that wanted to use thermal imaging to see where heat was escaping. He also used his drones to stitch together images into orthomosaic maps composed of multiple images.

It was not until he received a warning letter from the Board in December 2018 that Michael had any idea that what he was doing could be considered “surveying.” He had always been careful to note that his work did not establish property lines and could not be used for legal purposes. But a Board investigator told him that providing images with any metadata (information about GPS coordinates, elevation, or distance) or that stitching together images qualified as surveying and required a full-blown, state-issued license. Worried about the Board’s threat that he could be fined or even criminally prosecuted, Michael shut down much of his drone business.

“When the surveying board wrote that I was breaking the law, I could hardly believe it,” said Michael. “I didn’t think that I was doing anything that could be considered surveying. In fact, I don’t know of any surveying company that was using drones like I was.”

The Board—which is chaired by a licensed surveyor—has a strong incentive to define “surveying” broadly to prevent competition that could impact surveying businesses. But the First Amendment prohibits the government from restricting free speech, and free speech includes taking photographs and sharing information about the photos. And just because Michael sells his images to willing buyers does not mean that the government can ban his speech.

“This is just the newest example of a licensing board expanding its authority to crack down on competition,” said IJ Attorney James Knight. “But licensing boards should not be able to use their authority just to protect businesses from competition. The government should step out of the way and let innovative businesses like Michael’s continue serving their customers.”

IJ defends First Amendment rights and economic liberty nationwide. In December 2020, IJ successfully defended a Mississippi mapping company that was similarly charged by its state’s surveying board with unlicensed practice. IJ also recently won appeals court decisions in free speech cases on behalf of a veterinarian in Texas and tour guides in Charleston, South Carolina.

IJ Urges Supreme Court to Reject Dangerous Expansion of “Community Caretaking” Doctrine

Arlington, Virginia—In Caniglia v. Strom, to be argued on Wednesday, March 24, the U.S. Supreme Court will decide if the Fourth Amendment allows police to enter people’s homes without a warrant whenever an officer is acting as a “community caretaker.” The Institute for Justice (IJ) submitted a friend-of-the-court brief asking the Court to reject that sweeping approach as contrary to the Fourth Amendment’s command that Americans should be secure in their persons and property.

The Fourth Amendment prevents the government from conducting “unreasonable” searches or seizures. But courts often struggle to decide what is or is not “reasonable” in a given context. Here, the 1st U.S. Circuit Court of Appeals held that police could enter the Caniglia family home to seize handguns just because one of the officers felt that Mr. Caniglia might be upset from an argument he had with his wife the previous day. In the court’s view, it is reasonable for officers to enter peoples’ homes without a warrant—regardless of whether or not there is an emergency—so long as they are acting as “community caretakers” instead of enforcing criminal laws.

That cannot be right.

The Fourth Amendment begins by declaring “the right of the people to be secure,” and history makes clear that the Amendment was designed to protect us from threats to our persons and property. It is this right—the right to be secure from government officers’ unchecked power to search and seize—that should serve as the Court’s compass when evaluating the reasonableness of police conduct. In the past, the Court has allowed police to enter homes without a warrant (or consent) only when the facts show a genuinely dangerous situation requiring immediate action.

The lower court veered away from that bedrock principle when it relied on an irrelevant decision from the 1970s involving vehicle searches. Almost 50 years ago, the Supreme Court held that officers do not need a warrant before taking possession of vehicles that pose a risk to the public. And after a vehicle is in police custody, officers do not need a warrant before conducting a routine “inventory search” to collect valuables and protect police against unknown threats within the vehicle. But that case was limited to the context of vehicles within police custody—not our homes. The Court should reject the lower court’s overly broad approach that would weaken all Americans’ right to be secure in their homes.

“The Fourth Amendment protects our right to be secure in our property, which means the right to be free from fear that the police will enter your house without warning or authorization,” said Joshua Windham, IJ attorney. “A rule that allows police to burst into your home without a warrant whenever they feel they are acting as ‘community caretakers’ is a threat to everyone’s security. We call on the Court to correct the lower court’s error and clarify that the community caretaking exception only applies to narrow circumstances involving vehicles in police custody.”

“The Founders wrote the Fourth Amendment to prevent abusive and arbitrary searches and to make us secure in our persons and property,” explained IJ Senior Attorney Robert Frommer, who heads up IJ’s Fourth Amendment work. “But the lower court’s decision treats our security as expendable whenever law enforcement can think of a reason to enter your home.”

“The Supreme Court should reverse this dangerous decision and signal to lower courts that peoples’ rights are too important for the government to cut constitutional corners whenever law enforcement can come up with a vague reason for why entering your home without a warrant is convenient,” said Scott Bullock, president and general counsel for the Institute for Justice.

New Mexico Senate Passes Homemade Food Act, Paving Way for More Cottage Food Businesses

Santa Fe, N.M.—Saturday afternoon, the New Mexico Senate voted 38-2 to pass the Homemade Food Act, which would make it easier for New Mexicans to support their families by selling foods made in their home kitchens. The bill passed the New Mexico House of Representatives 63-1 earlier in March. Currently, New Mexico has one of the weakest homemade or “cottage food” laws in the country, making this route for entrepreneurship unfeasible for ordinary New Mexicans. Worse yet, Albuquerque completely bans the sale of homemade foods. That is all set to change as Gov. Michelle Lujan Grisham is anticipated to sign the uncontroversial yet groundbreaking bill, which stands to create thousands of small businesses in the coming years.

Once signed into law, the bill will accomplish three major goals. First, it will allow sales directly to consumers, rather than only at farmers’ markets or roadside stands. Second, it will remove a burdensome New Mexico Environment Department permit requirement that requires pages of paperwork and can require thousands of dollars in kitchen upgrades before a person can sell. Finally, sales will be legal throughout the state, including in Albuquerque, where the sale of all homemade foods is currently banned. The Institute for Justice (IJ), the nation’s leading advocate for food freedom, condemned Albuquerque’s ban and supported the Homemade Food Act to help all New Mexico homemade food producers thrive. The Rio Grande Foundation and Americans for Prosperity also supported the bill.

“This legislation proves that when there are needless restrictions hurting New Mexico families, both parties can work together to solve it,” said IJ Senior Attorney Erica Smith. “People should be able to freely buy and sell homemade foods without having to worry about the cookie police.” Reps. Marion Matthews and Zach Cook sponsored the bill.

Many would-be homemade food sellers have called the Legislature to ask them to support the bill, which applies only to the sale of shelf-stable foods like baked goods, jams, popcorn, dried pasta and roasted coffee beans. One of them is Trish Ray from San Felipe Pueblo, who testified in support of the bill.

“Passing this bill means that I can legally sell baked goods to fellow New Mexicans and supplement my income,” Trish said. “As a single mother I am doing everything possible to save up for my son’s college tuition and a home-based bakery would help me get started towards that goal.”

For Katie Sacoman in Albuquerque, the change in law will mean she gets to support her family doing what she loves most: baking. Katie quit her teaching job when her daughter was born, but was so frustrated to learn of Albuquerque’s ban, she considered moving. Now, she can make money from home while selling delicious cookies.

“I am really grateful for all the representatives and senators who took time to listen and talk to us,” Katie said. “I’m so grateful that this huge barrier has been lifted for starting my business. We can stay in our homes and start this dream.”

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

The Homemade Food Act is expected to go into effect on July 1, 2021.

California Supreme Court Punts on Property Rights, Refuses to Hear Appeal of Receivership Abuse Victim Ron Mugar

Riverside, Calif.—Four years ago, Norco homeowner Ron Mugar dared to defend his property in court, and he won. Yet for doing so Ron was nonetheless punished. Norco’s for-profit code enforcement prosecutors—lawyers with Dapeer, Rosenblit & Litvak LLP—charged Ron over $60,000 for what they called “obstructive tactics.” It is illegal and brazen for a law firm to seek attorneys’ fees for a case it lost, but so goes the perverse incentives of a code-enforcement system motivated by profit rather than public safety. Ron fought back with the Institute for Justice (IJ) to challenge the constitutionality of being punished for successfully defending himself in court. Unfortunately, Ron’s journey came to an end Thursday when the California Supreme Court refused to hear his appeal.

“Ron made sure his home was up to code and then he won in court. But he is still being punished with an outrageous charge for exercising his constitutional right to defend himself,” said IJ Attorney Joshua House. “California property owners everywhere should be gravely concerned that having your house up to code won’t stop for-profit prosecutors from robbing you of your savings or your home. We will never stop fighting for property rights in California.”

When Ron received a notice indicating that he had violated the city’s housing code, the city’s for-profit prosecutors with Dapeer, instead of fining him or asking him to bring his property up to code, declared they were going to take his house using a legal process known as a “receivership.” Receiverships are an extreme code enforcement remedy in which a court gives one’s property to a receiver for it to be brought up to code. But because the costs of a receiver can be high, it’s often impossible to pay back the receiver and the homeowner will lose their home. Ron made sure his yard was cleaned up, defended himself in court and got the receivership action against him dismissed. Yet proving that his house was up to code did not stop Dapeer from trying to profit from the ordeal.

For for-profit firms like Dapeer, the goal is not to make sure the city is up to code; it’s to make a massive profit off the backs of California homeowners. After today, for-profit law firms hired by California municipalities will feel emboldened to go after innocent homeowners, even if their homes are up to code.

“Receiverships should be a last resort, because when cities use receiverships, they’re taking away someone’s home and likely all of their equity. The stakes are huge,” said IJ Attorney Jeffrey Redfern. “For-profit prosecutors like Norco’s have a financial incentive to get paid for bringing receivership actions. That is not what code enforcement or receiverships should be about.”

Ron said, “I’m very disappointed that the California Supreme Court refused to hear my case. I will keep fighting to make sure that Californians aren’t punished for defending themselves and their homes in court.”

California is a haven for predatory for-profit code enforcement schemes that abuse citizens’ constitutional rights. In nearby Indio, California, the city had hired a law firm called Silver and Wright LLP to enforce its municipal code. There, the lawyers charged an elderly woman nearly $6,000 in attorneys’ fees because her tenants were keeping chickens in their backyard. Indio no longer uses the firm for prosecution, and it has agreed to settle the lawsuit.

The Institute for Justice has been at the forefront of fighting efforts by the government to use fines, fees and civil forfeiture to raise revenue. Most recently, it secured a unanimous  victory at the U.S. Supreme Court ruling that states cannot impose excessive fines.

Supporters of the Homemade Food Act Ask New Mexico Senate To Consider Bill Today

When the New Mexico House of Representatives considered the Homemade Food Act, HB 177 last week—a bill to make it easier for people to support their families by selling foods made in their home kitchen—several legislators touted the bill as an example of the system working. In a time when partisan politics are at their peak, the Act represents politics at its finest: Republican and Democratic sponsors working together to bring relief to its citizens during the pandemic. Reps. Zach Cook (R) and Marion Matthews (D) are the lead sponsors of the bill and the bill passed the House last week with only one vote against.

Now the bill is due to be considered on the Senate Floor. But because the session ends at noon tomorrow, supporters of the bill are hoping the Senate will have time to consider the bill before time runs out.

Selling homemade foods—like baked goods, jams, dried pastas, honey, and roasted coffee beans—is a common way for people in 49 states to support themselves, their families and their farms. During the pandemic, being able to make money from home is more important than ever. The problem is that New Mexico currently has the most restrictive homemade food law in the country of the states that allow cottage food sales. The only state with a more restrictive law is New Jersey, which bans sales completely.

Many would-be homemade food sellers have called the legislature to ask them to support the bill. One of them is Trish Ray from San Felipe Pueblo, who testified in support of the bill.

“Passing this bill means that I can legally sell baked goods to fellow New Mexicans and supplement my income,” Trish said. “As a single mother I am doing everything possible to save up for my son’s college tuition and a home-based bakery would help me get started towards that goal.”

The bill would fix three problems with New Mexico’s current law. First, the laws allow cottage food producers to sell only at farmers markets and roadside stands. That means that while a cottage food producer can sell bread at the market, she can’t deliver the exact same bread to her neighbor down the street. (Only four other states have this restrictive requirement). Secondly, before the baker can even sell the bread at the market, she needs to get a burdensome permit from the Environment Department that requires pages of paperwork and can require thousands of dollars in kitchen upgrades. Finally, Albuquerque bans the sale of cottage foods completely—one of the only cities in the nation to do so.

HB 177 would fix these problems by making three changes.
· Allow all sales directly to consumers, including from home and online;
· Remove the burdensome permit requirement for all areas under NMED’s jurisdiction and instead require sellers to obtain a food handler certificate and abide by basic safety standards;
· Make sales legal everywhere, including in Albuquerque.

There are no safety concerns with the bill. The bill applies only to the sale of shelf-stable foods like baked goods, jams, popcorn, and roasted coffee beans. Under the bill, sellers would also need to take a one-day online safety course and abide by safety standards.

The Senate is due to reconvene today at noon.

Federal Court Rules Coast Guard Violated Federal Law by Denying a Captain His Right to Earn a Living

WASHINGTON—In a battle waged in a federal courtroom rather than the high seas, an experienced merchant mariner yesterday bested the Coast Guard and a private association, moving him a step closer to piloting ships on the Great Lakes. D.C. District Court Judge Amit Mehta ruled that the Coast Guard violated federal law in denying Captain Matthew Hight the opportunity to take an exam that would allow him to register as a pilot. Captain Hight’s victory is a rare instance of a federal agency losing a case about how it interprets its own regulations.

Prior to this decision, the Coast Guard allowed the St. Lawrence Seaway Pilots Association, a for-profit business, to determine who can and cannot work as a pilot on the Great Lakes. The members of the association are themselves pilots on the Great Lakes, and thus pick their own competition.

After Captain Hight raised questions about how the association’s leadership was managing the association’s finances, the association gave Captain Hight a negative recommendation. Among other supposed offenses, the association complained that Captain Hight used profanity while piloting a ship—allegedly swearing like a sailor. As far as the Coast Guard was concerned, that negative recommendation was the end of Hight’s career as a pilot.

Before his dreams of becoming a pilot sunk below the waves, Captain Hight teamed up with the Institute for Justice (IJ) to file a federal lawsuit to protect his right to earn a living. The lawsuit challenged the constitutionality of the Coast Guard’s delegation of its power to a private association, and it also argued that the delegation violated the Coast Guard’s own regulations.

“The government must follow its own rules,” said IJ Senior Attorney Anthony Sanders. “This decision is an important vindication of that principle: the government cannot arbitrarily deny a qualified American his right to earn an honest living. The Supreme Court has recently made clear that agencies cannot interpret their own rules however they wish and get away with it. Captain Hight’s win here is an example of that renewed attention to bureaucratic shenanigans making a difference in real people’s lives.”

Judge Mehta ruled that the Coast Guard violated the Administrative Procedure Act, which governs how federal agencies regulate. In his decision, Mehta wrote that the Coast Guard’s interpretation of its rules, “[M]ay be wise policy, but that is not what the regulations say, and the text controls.” Judge Mehta also noted that the Coast Guard had failed to offer any interpretation of its regulations that would justify its delegation of authority to the association.

The decision orders the Coast Guard to administer the exam, but that does not guarantee that Captain Hight will receive his registration should he pass. It remains an open question whether the Coast Guard will continue to defer to the pilot association’s negative recommendation even though that decision was motivated by a personal disagreement rather than Captain Hight’s capabilities.

The judge declined to consider Captain Hight’s broader constitutional challenges to the Coast Guard’s regulatory scheme and its delegation of authority to the pilot’s association. Those issues could be considered in further litigation should Captain Hight continue to be blocked from receiving his pilot’s registration.

“This is a great victory for Captain Hight but his odyssey is not at an end,” said IJ Attorney Jeff Redfern. “We will be watching closely to see what the Coast Guard does next, and if it does not restore Captain Height’s right to earn a living all possible options will remain on the table—including returning to court to challenge the constitutionality of this regulatory scheme.”

South Padre Island food trucks ask Texas Supreme Court to rein in city flouting constitutional ruling

SOUTH PADRE ISLAND, Tx.—Late last year, Texas Judge Arturo Cisneros Nelson struck down South Padre Island’s anti-competitive 12-permit cap and restaurant permission scheme, declaring them unconstitutional and ending two years of litigation. This was great news for area food truck owners, who began taking steps to take full advantage of the busy travel season kicking off with Spring Break.

But South Padre Island, after conferring with the Texas Municipal League, astonishingly chose to defy the district court’s order. The city did not appeal or seek to stay the loss. Instead, it continued enforcing both its cap on food truck permits (ensuring no more than 12 food trucks on the island) and its restaurant-permission scheme, which says that food truck owners must obtain approval of a local restaurant owner to qualify for a permit.

The city initially claimed that its defiance was because it did not understand the court’s order, but it simultaneously refused to ask the district court for clarity. And at the same time, the city misled the public on its official Facebook page, indicating that the district court had not done what it did. Based on that misrepresentation, the city announced that both the permit cap and restaurant permission scheme “will remain in effect.”

The city’s behavior is a direct slap in the face of the Texas courts, which exist to protect Texans’ constitutional rights. So today the Institute for Justice, working on behalf of a group of food trucks, has asked the Texas Supreme Court to intervene and force the city to comply with the Judge Nelson’s court order and the Texas Constitution.

“When a law is ruled unconstitutional by a Texas court under Article I of the Texas Constitution (Bill of Rights) that law is immediately void and unenforceable” said Arif Panju, Managing Attorney of the Institute for Justice’s Texas office. “By continuing to fence out food-truck competition at the behest of local restaurant owners, the city is not only defying the authority of Texas courts, but also preventing food truck vendors from earning a living. Now the city must answer to the Texas Supreme Court.”

In February 2019, IJ challenged the city of South Padre Island’s anti-competitive restrictions on behalf of food truck owner SurfVive, a local nonprofit spearheaded by Erica Lerma, and the Brownsville-based Chile de Árbol food truck operated by brothers Anubis and Adonai Avalos. Both food trucks were forced to the sidelines for over two years and could not operate under the city’s permitting scheme. After taking the city to court to vindicate their constitutional rights, they won in the district court after proving that the two restrictions had nothing to do with protecting health and safety, but rather only the profits of local restaurant owners who wrote the ordinance.

Broad Left-Right Coalition Urges Congress to Protect Americans From Civil Forfeiture

More than a dozen influential nonprofit organizations from across the political spectrum sent a coalition letter this week calling on Congress “to curb law enforcement’s power to use and abuse the practice of civil forfeiture by enacting strong reforms.” Under civil forfeiture, law enforcement can permanently confiscate property from innocent owners without ever charging them with a crime, let alone securing a conviction. At the federal level, about 80-90 percent of all forfeitures are conducted “administratively,” i.e. without any judicial oversight and with the seizing agency acting as judge and jury.

Driving these abuses is a perverse incentive to police for profit; federal agencies can keep the proceeds from forfeited property, giving them a strong financial motive to seize property. Over the past two decades, more than $45.7 billion was deposited into the forfeiture funds run by the U.S. Department of Justice and the Treasury Department. State and local agencies can profit too. Through “equitable sharing,” police and prosecutors can collaborate with a federal agency, evading any stricter state law protections against civil forfeiture, and collect up to 80 percent of the proceeds. Altogether, at least $68.8 billion was forfeited by state and federal agencies from 2000-2019.

“Congress must protect the civil liberties and property rights of all Americans,” said IJ Senior Attorney Dan Alban, who co-directs IJ’s National Initiative to End Forfeiture Abuse. “For nearly four decades, civil forfeiture has victimized far too many innocent property owners who never had a chance in a system that stacks the cards against them in order to send billions of dollars to law enforcement. That must end now.”

Spearheaded by the Institute for Justice, the coalition letter was sent on Monday to the Chairs and Ranking Members of the House and Senate Judiciary Committees and identified several key reforms. Short of fully abolishing civil forfeiture, Congress should end forfeiture’s “improper” incentives by redirecting all forfeiture proceeds to the Treasury’s General Fund and by dismantling the equitable sharing program. Congress must also strengthen safeguards for due process, including by raising the standard of proof, guaranteeing the right to legal representation for indigent owners, and by eliminating the administrative forfeiture system. 

Although many Americans are bitterly polarized, a solid majority stands against civil forfeiture. Two-thirds of Americans (and 60 percent of Republicans) said they would be more likely to vote for a Member of Congress who wants to abolish civil forfeiture, according to a poll conducted last fall by YouGov on behalf of the Institute for Justice. Reflecting this bipartisan consensus on the dire need for forfeiture reform, the coalition letter was signed by organizations spanning the political spectrum, including the ACLU, American Commitment, Americans for Prosperity, Campaign for Liberty, DKT Liberty Project, the Drug Policy Alliance, the Due Process Institute, FreedomWorks, Goldwater Institute, LEAP, the Leadership Conference, NACDL, National Motorists Association, National Taxpayers Union, and R Street. 

“It is our hope that, whether through standalone legislation, provisions included in broader criminal justice reform, or the appropriations process, this Congress will finally solve this longstanding problem,” concluded the letter. 

Since the Institute for Justice began its End Forfeiture initiative in 2014, 35 states and the District of Columbia have enacted forfeiture reforms. Seven states and the District have restricted equitable sharing, limiting law enforcement’s ability to receive funding through the program and making it harder for law enforcement to circumvent state civil forfeiture laws. And in 2015, New Mexico abolished civil forfeiture, replacing it with criminal forfeiture and requiring that all forfeiture proceeds be deposited in the state’s general fund. In 2019, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

Lots of Support from Friends of the Court As Maine School Choice Case Appealed to Supreme Court

Arlington, Virginia—Last week, a collection of ten different “friends of the court” urged the U.S. Supreme Court to hear a school choice case arising out of Maine. The question before the Court is whether states may bar families from participating in student-aid programs simply because they send their children to schools that provide religious instruction. Among those filing briefs were a coalition of 18 states, various non-religious private schools, a diverse group of religious liberty organizations, an interfaith coalition of religious schools, and education policy experts.

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

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

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

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Senior Attorney Michael Bindas of the Institute for Justice, which represents the families in the suit. “The state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”

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

Lea Patterson, an attorney with First Liberty Institute, which serves as co-counsel with the Institute for Justice in the case, said, “For 40 years, Maine has rejected parental choice in education and allowed religious discrimination to persist. The Supreme Court should act now so yet another generation of schoolchildren is not deprived of desperately needed educational opportunity and the right to freely exercise their religion.”

Among the ten different groups that filed amicus briefs urging the U.S. Supreme Court to hear the Maine families’ appeal were:

  • A coalition of 18 states—Arkansas, Alabama, Arizona, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah and West Virginia—that are “united in recognizing religious and nonreligious schools as valid educational partners” argued that “a State need not discriminate on the basis of religion to serve its undoubtedly compelling interest in educating children.” They stressed that “[i]f left to stand,” the 1st Circuit’s decision “threatens not just the freedom of religious schools and families in Maine but also the flexibility of the States to partner with religious schools.”
  • A broad coalition of religious schools, including the Council of Islamic Schools in North America (a non-profit accrediting and advocacy organization that supports Islamic schools, which serve approximately 24,000 students), the Partnership for Inner-City Education (a non-profit operator of Catholic pre-K–8 schools in Harlem, the South Bronx, and Cleveland) and the Union of Orthodox Jewish Congregations of America (a Jewish synagogue organization representing more than 400 Jewish K–12 schools) stressed that “ 1 entral to these schools’ religious and educational missions is the integration of faith throughout all aspects of their educational programs, making the status/use distinction employed by the [First Circuit] both unworkable and discriminatory,” and“[t]o discriminate against these religious schools on the basis of use,” the brief makes clear, “is to discriminate against religious schools on the basis of their status.”
  • Innovative private schools Build UP (which operates a workforce development model to provide low-income youth in Alabama and Ohio with career-ready skills through paid apprenticeships) and Kuumba Preparatory School for the Arts (an African-centered private school located in southeast Washington, D.C.) were “founded on the principle that different students learn differently, and that it is the responsibility of educators to embrace students’ unique capacities as a tool for learning, not an obstacle to it.” The 1st Circuit’s decision, their brief argues, “will have the perverse effect of hurting those who are most likely to benefit from innovative schools, and it will chill creativity and experimentation by schools that fear such experimentation may cause their students to lose access to critical tuition assistance.”
  • EdChoice, a national nonprofit leader in educational-choice research, legal defense, policy development and outreach, provides an extensive examination of Maine’s history of hostility to religion—from its subjecting Catholic students to Protestant religious exercises in its 19th-century public schools to its current prohibition on students’ selection of private schools that accord with their religious faith under the states’ tuition assistance program. EdChoice urges the Court to “tak[e] this opportunity to clarify that religiously neutral application of student-aid programs is both permitted by the Establishment Clause and required by the Free Exercise Clause.”

“We are grateful for the support of every organization that submitted an amicus brief in support of our appeal,” said Scott Bullock, president and general counsel of the Institute for Justice. “The Supreme Court’s taking this case and ruling in favor of the families will ensure that educational choice programs can provide a wide range of school options—whether public or private, religious or non-religious—that enable parents to find a school that best meets their children’s individual needs. Now more than ever, it’s time to expand educational opportunities for all families.”

#  #  #

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

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

Washington Supreme Court to Hear Significant Excessive Fines Case

SEATTLE—This morning, the Washington Supreme Court will hear argument in City of Seattle v. Long, a case concerning the Excessive Fines Clause of the U.S. Constitution. The court will consider whether the clause prohibits the city of Seattle from imposing a $547 charge on a homeless man after the city impounded the truck in which he lived. It is an opportunity for the court to define the boundaries of the Excessive Fines Clause after the U.S. Supreme Court held that the constitutional provision restricted state and local governments in Timbs v. Indiana in 2019.

The case concerns Steven Long, who was forced to live in his truck after losing his home. The truck, which did not work properly, was parked in a secluded gravel lot owned by the city. In 2016, Seattle police were dispatched to the area for an unrelated complaint. While there, police ticketed Long for parking in one spot for more than 72 hours. A few days later, a private towing company that contracted with the city towed his truck, leaving Long to sleep on the streets. He was eventually fined $44 and charged $547 for the cost of impounding his truck. He appealed the impound charge to the Seattle Municipal Court, which found the charge to be an unconstitutionally excessive fine. The King County Superior Court agreed, and the city sought review before the Washington Court of Appeals. That court reversed the Superior Court. Long appealed to the Washington Supreme Court, which agreed to hear the case earlier this year.

One of the most significant issues before the Washington Supreme Court is whether a court must consider the individual circumstances of an offender in determining whether a particular fine is excessive. In its briefing before the Supreme Court, the city argues that so long as the government approves the amount of the fine and it reflects the cost of enforcement, it can impose that fine on an indigent person.

“The city’s position is essentially that there is no difference between imposing a fine of $547 on a homeless individual living in a truck or imposing it on Bill Gates,” said Bill Maurer, the Managing Attorney of the Seattle office of the Institute for Justice (IJ), which represented Tyson Timbs in the U.S. Supreme Court case that bears his name. “But the purpose of the Excessive Fines Clause is to prevent the government from pushing a defendant to the wall. There is no way to prevent that unless the courts consider the financial circumstances of a defendant.”

IJ filed a friend of the court brief supporting Long on its behalf as well as on behalf of the Fines and Fees Justice Center, the Southern Poverty Law Center, the Oregon Law Center, Equal Justice Under Law, the Policy Advocacy Clinic of the U.C. Berkeley School of Law, and the MacArthur Justice Center. The case is one of the first state supreme court cases in the country to address the contours of the Excessive Fines Clause. The only other state supreme courts in the country to consider the issue post-Timbs—Indiana and Colorado—have both concluded that courts must consider a defendant’s circumstances in determining whether a penalty is unconstitutionally excessive.

“For someone forced to live in their vehicle, a $547 fine might as well be a $547,000 fine—a homeless individual can pay neither,” continued Maurer. “The city should reconsider whether it should be fining someone for the crime of being so poor that they have to live in an inoperable vehicle.”

The oral argument will be streamed online and broadcast by TVW at 9:00 a.m. PDT: http://www.tvw.org/.

Texas Federal Judge Tosses Qualified Immunity Defense in First Amendment Retaliation Case

On Friday Sylvia Gonzalez—a retiree and former Castle Hills, Texas, councilmember thrown in jail for speaking out against her local government—got the news she has waited more than a year to hear. In a powerful ruling issued Friday afternoon, Judge David Alan Ezra dismissed the city’s motion to dismiss and ruled that her case alleging First Amendment retaliation against the city’s chief of police, the mayor, a detective, and the city itself can proceed.

“I’m incredibly grateful to be able to proceed with my case,” said Sylvia Gonzalez, who is represented by IJ in her fight. “I’m glad that after all I’ve been through the truth will prevail.”

This decision marks an early and important victory in the fight to vindicate Sylvia’s constitutional rights. Too often, government officials argue that a legal doctrine known as “qualified immunity” shields them from being held responsible for violating individual rights. Soon after Sylvia filed her lawsuit, the government defendants claimed immunity and argued that the case should be thrown out. Judge Ezra disagreed and ruled for Sylvia. Now, Sylvia and IJ can proceed and are looking forward to their day in court.

Sylvia’s case started in May 2019, when she decided to run for a city council seat. As part of her campaign, she helped organize a non-binding petition calling on the council to remove the Castle Hills city manager from his position. This did not sit well with the mayor and the police chief, among others, who engineered a campaign to retaliate against Sylvia by removing her from office. When that failed, they engineered a plot to throw her in jail—nonsensically arguing that she tried to steal her own petition. Seventy-two years old at the time, Sylvia spent an entire day behind bars, forced to sit on a metal bench (and not allowed to stand), wear an orange shirt, and use a bathroom with no doors or opportunity for privacy. Her mugshot appeared on TV screens all over Castle Hills and San Antonio.

When Sylvia sued, the defendants invoked qualified immunity—a doctrine that shields government employees from being held accountable, even when they violate individual rights. To overcome immunity, the victim must prove that a court has ruled that the exactly the same conduct was already ruled unconstitutional.

But here, the court saw through the government’s attempt to hide behind qualified immunity. Judge Ezra ruled that the law is clearly established, and the government has more than fair warning that throwing someone in jail in retaliation for exercising their free speech is a violation of the First Amendment. The judge also ruled that the claims against the city must move forward.

“This decision is a remarkable victory for government accountability,” said Will Aronin, one of the IJ lawyers representing Sylvia in this case. “The judge ruled that Sylvia’s claims against every single defendant—including the city itself—can proceed. Now, Sylvia will finally get her day in court and we’re confident a jury will see the city’s actions for what they were—an unconstitutional attempt to punish her for exercising her constitutional rights.”

Sylvia’s case is a part of IJ’s Project on Immunity and Accountability, which is dedicated to the principle that our Constitution is not an empty promise and must be enforced. In addition to Sylvia’s case, the Institute for Justice is litigating several other constitutional cases that arose in Texas: including one on behalf of a Vietnam veteran who was senselessly beaten by security guards at a veterans hospital in El Paso, Texas, and one on behalf of an innocent homeowner in McKinney, Texas, who was left holding a bill for more than $50,000 after a SWAT team destroyed her home in pursuit of a fugitive.

Lawsuit: Florida Parents Partner with IJ to Shut Down Dystopian “Predictive Policing” Program

Pasco County, Florida’s future policing program is as dystopian as it is unconstitutional. Under the guise of “predictive policing,” for the last 10 years the Pasco County sheriff’s department has used a crude computer algorithm to identify and target supposed “future criminals.” Once identified, these supposed “prolific offenders”—many of whom are minors—are relentlessly surveilled and harassed. As a Tampa Bay Times in-depth investigation uncovered, police regularly show up at their homes unannounced and demand entry. If they or their parents don’t cooperate, police write tickets for petty violations, like missing house numbers or having grass that is too tall. As one former Pasco County deputy put it, they were under orders to “make their lives miserable until they move or sue.”

After weathering years of misery, today a group of Pasco residents partnered with the Institute for Justice—a nonprofit public interest law firm—to sue the county and put an end to its predictive policing program once and for all. The lawsuit, which was filed in federal court, argues that the county violated residents’ First, Fourth and Fourteenth Amendment rights.

“Pasco’s program seems like it was ripped from the pages of a dystopian sci-fi novel and not a manual on effective police strategies,” said Institute for Justice Attorney Ari Bargil. “This program isn’t just unethical, it’s patently unconstitutional to use a crude computer calculation to target, harass, fine, and even arrest citizens who have done nothing wrong.”

Robert Jones, a plaintiff in the lawsuit, knows the cruelties of Pasco’s program firsthand. In 2015, Robert’s teenage son had a number of run-ins with the law. That landed his son on Pasco’s “prolific offender” list. Shortly thereafter deputies started to conduct “prolific offender checks.” These warrantless “checks” involved repeated, unannounced visits to Robert’s home at all hours of the day. Robert grew tired of the harassment and stopped cooperating with police. That only made matters worse.

Code enforcement is a common tactic to compel cooperation. One deputy said they would “literally go out there and take a tape measure and measure the grass if somebody didn’t want to cooperate with us.” In Robert’s case, deputies cited him for tall grass, but failed to notify him of the citation. Then, when he failed to appear for a hearing that he was never told was happening, they arrested him for failure to appear.

All told, Robert was arrested five times by Pasco deputies. Although the bogus charges never stuck—they were all dropped—the harassment accomplished its goal: Robert ultimately moved his family out of Pasco County to escape the constant harassment from the Sheriff’s Office.

“I lived through a living hell because a computer program said my family didn’t belong in Pasco,” said Robert Jones. “I only thought this kind of thing happened in movies, not in America. We’ve got rights. And I’m going to stand up for them and shut this program down.”

Predictive policing gained prominence in the late 2000s as a way for police to use data to better allocate resources. Cities including Los Angeles and Chicago experimented with predictive policing but have subsequently scrapped their programs because of civil rights and effectiveness concerns. In most cases, police departments used data to identify geographic areas in need of additional resources. But Pasco took it one step further by using data to target specific individuals.

“Pasco defends its program as a crime fighting tool,” said Institute for Justice Attorney Robert Johnson. “But in America, there is no such thing as ‘innocent until predicted guilty.’ The government cannot harass people at their homes just because it thinks they might commit some unspecified future crime.”

Robert is joined in the lawsuit by Tammy Heilman, Dalanea Taylor, and Dolly Deegan. Like Robert, their families have all suffered unconscionable harassment by the Pasco deputies. Their lawsuit alleges that the county’s prolific offender checks violate the plaintiffs’ constitutional right to be protected from unreasonable searches and seizures. Beyond that, it argues that the due-process and equal-protection guarantees of the Fourteenth Amendment guard against arbitrary or irrational government actions. In this case, law enforcement officials cannot use a legitimate law, like code enforcement, to achieve an illegitimate purpose, like harassing and forcing prolific offenders and their families to “cooperate” during prolific offender checks.

For nearly three decades, the Institute for Justice has represented homeowners and others to stand up for their constitutional rights. Earlier this month, for instance, IJ filed a lawsuit against the city of Lantana, Florida, after it fined a homeowner more than $100,000 for parking violations. In Pagedale, Missouri, IJ won a class action lawsuit and shut down the city’s program of using fines and fees for trivial issues to raise revenue for the city. And in Dunedin, Florida, IJ filed a lawsuit on behalf of homeowner who was driven into foreclosure after the city fined him nearly $30,000 for having grass that was too long.


Every Contribution Helps IJ Fight for Americans’ Rights

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

New Lawsuit Seeks to End Colorado’s Transportation Monopoly Law

Arlington, Va.—Abdallah Batayneh just wants to start a new shuttle service in Steamboat Springs, but Colorado law allows existing transportation companies to veto new businesses in their regions. Today, in order to clear the way for himself and other entrepreneurs in Colorado, Abdallah is partnering with the Institute for Justice (IJ) in a lawsuit to put an end to this unconstitutional law.

Abdallah came to America to build a better life for himself and his family. He currently manages his own cleaning service and works at a beautiful mountain resort. He heard many complaints about the two existing shuttle services. So, Abdallah decided to start his own shuttle service to improve access to transportation in his community.

Unfortunately, he quickly hit a roadblock. As required, he applied to the Public Utilities Commission (PUC) for permission to start his shuttle service. Under Colorado law, existing transportation companies are given the power to object to new transportation businesses and ban them from operating in their region. That is just what happened to Abdallah. Even though the PUC determined he was “operationally, managerially, and financially qualified” to operate his proposed shuttle service, he was banned from operating because the two existing shuttle services objected.

“I’m just pursuing my American Dream and simply wanted the chance to compete,” said Abdallah. “I should be encouraged—not blocked by government officials who are more interested in protecting a cartel of connected insiders.”

“The government admits Abdallah is qualified and has the experience necessary to run a safe, affordable, shuttle company,” said IJ Attorney Will Aronin. “But, because the cartel said no, the government banned him from starting his business. That’s not just wrong. It’s unconstitutional.”

IJ has been challenging laws protecting transportation cartels and monopolies for over 25 years. In 1993, IJ’s constitutional challenge to Denver’s taxi cartel spurred the Colorado Legislature to change the law, dramatically improving transportation throughout the city. Even then, IJ successfully sued again to enforce the improved law after the PUC refused to abide by it. And IJ’s litigation on behalf of transportation entrepreneurs has eliminated other anticompetitive restrictions nationwide, including in Bowling Green, Chicago, Las Vegas, Little Rock, Milwaukee, Nashville, New York, and San Diego. Now, Abdallah and IJ are teaming up to build on IJ’s success in Denver and eliminate transportation monopolies throughout Colorado.

“Restrictions like these hurt customers, the community and local businesses,” said IJ Senior Attorney Justin Pearson. “It’s not the government’s job to pick winners and losers in the marketplace. That right belongs to consumers.”

Victory for Food Freedom in Lincoln, Nebraska

Lincoln, Neb.—Homemade food producers will soon be free to sell their goods within Lincoln without being forced to follow burdensome regulations by the city. Under an amended ordinance, set to take effect on March 15, cottage food producers registered under LB 304 simply have to register with the city, and inspections are only allowed under narrow circumstances (for example, based on a specific complaint of foodborne illness). The amended ordinance was prompted by a lawsuit filed last year by the Institute for Justice (IJ) and home baker Cindy Harper, in partnership with Husch Blackwell LLP.

“This new ordinance is a major improvement for cottage food producers in Lincoln,” explained IJ Attorney Joshua Windham, lead counsel on the case. “Shelf-stable foods like Cindy’s sugar cookies are just as safe in Lincoln as they are in the rest of the state, so there was never any reason for Lincoln to set itself apart with additional regulations. This new ordinance better reflects that reality.”

“I’m very pleased with the revision to the ordinance and that cottage food producers in Lincoln can now work with regulations that are more in line with the state law,” said Cindy. “I want to thank the Institute for Justice and my attorneys for all the hard work that went into making this happen for all of us.”

In 2019, Cindy helped convince state lawmakers to adopt LB 304, which reformed Nebraska’s regulations for the home-based sale of shelf-stable foods like Cindy’s decorative sugar cookies. Specifically, LB 304 exempted cottage food producers from the burdensome permitting and inspection requirements that apply to commercial restaurants—as long as they register with the state and pass a simple food safety course.

Within months, however, the city of Lincoln went rogue by imposing the same permitting and inspection requirements on cottage food producers operating locally. So last year, Cindy teamed up with IJ to file a constitutional lawsuit to have the city’s ordinance declared preempted by LB 304.

The city initially dug its heels in, filing a motion to dismiss Cindy’s case. But in October 2020, a state trial court denied the motion, noting the clear “tension” between the city’s ordinance and LB 304.

In response to the court’s decision, on Tuesday Lincoln’s City Council voted unanimously to amend its cottage food regulations. Under the new regulations:

  1. Cottage food producers registered under LB 304 simply need to file their state registration with the city, pay a fee and have a “consultative visit” with the health director so that the director can provide some food-safety information.
  2. Cottage food producers registered under LB 304 will have to follow labeling requirements similar to those listed in LB 304.
  3. The broad inspection authority under the previous ordinance—which allowed the city to inspect private homes whenever it pleased—has been replaced with a more narrowly tailored system under which (a) inspections can only occur based on a complaint of foodborne illness, improper labeling, or some other specific violation of the Lincoln Code, and (b) must be limited to places where cottage foods are actually handled, stored, or sold.
  4. Finally, the ordinance clarifies that the city’s cottage-food regulations apply only to sales inside the city.

Today, IJ and Cindy Harper voluntarily dismissed their lawsuit challenging Lincoln’s burdensome cottage food regulations.

“The city’s new ordinance finally recognizes that the right to sell home-baked goods in Nebraska shouldn’t depend on what city you happen to live in,” said IJ Attorney Keith Neely. “That’s a principle that applies everywhere, and IJ will continue to be on the lookout for local regulations that flout state protections for food freedom.”

A SWAT team destroyed a Texas home and refused to pay for the damage. Now the homeowner is fighting back.

McKinney, Tex.—Last summer, Vicki Baker woke up one morning to every homeowner’s worst nightmare: the night before, a fugitive had taken refuge in her second home, and after a standoff, the police SWAT team used tear gas grenades, explosives and an armored vehicle to utterly destroy the home. They called it “shock and awe.”

The incident left Vicki in shock, too. When the smoke cleared, the home—which her daughter was living in and which was under contract to sell—was uninhabitable. The only living thing that survived the raid was her daughter’s dog, which was left deaf and blind from the explosions.

Vicki, who had recently moved to Montana to retire, was left holding the bill. The city of McKinney and her homeowner’s insurance company told her that police had “immunity” and wouldn’t pay for a dime of the damage. A few days later, the buyer walked away and the sale fell through.

All told, Vicki spent more than $50,000 and months of time to repair her home. She ran up debt on her credit cards, and when those ran out, she had to withdraw funds from her retirement account to afford the repairs. When she finally sold the home this winter, it was for substantially less than before the raid.

Case Resources

Although her home was ultimately sold, Vicki’s work in McKinney is not done. Today she partnered with the Institute for Justice, a nonprofit public interest law firm, to sue the city of McKinney for the damage its police did to her home.

“In America, ‘if you break it, you buy it,’” said IJ Attorney Jeff Redfern. “The McKinney SWAT team didn’t just break Vicki’s home—they destroyed it. Now it is time for them to pay for the damage they caused.”

The lawsuit, which was filed in the Eastern District of Texas federal court, argues that McKinney’s refusal to pay for the damage violates that Takings causes of both the U.S. and Texas Constitutions.

“The United States and Texas Constitutions make it clear that when the government takes property, whether it’s for a road or in capturing a suspect on behalf of the public, the government must compensate the owner,” said Suranjan Sen, a Liberty and Law Fellow at the Institute for Justice. “Taking a fugitive off the streets benefits everyone, so the cost of the damages caused by the SWAT team should be borne by everyone, not Vicki alone.”

“I appreciate that the police did what they thought was necessary to protect the community,” Vicki said. “But it’s unfair to place the costs—replacing or redoing all of my flooring, the burst pipes, the damaged roof, the blown-out garage door, the broken doors, the toppled fence—on me, just because the guy happened to pick my house and not someone else’s.”


Every Contribution Helps IJ Fight for Americans’ Rights

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

Amicus Briefs Support Veteran Beaten by Police To Get His Day Before U.S. Supreme Court

Arlington, Virginia—This spring, the U.S. Supreme Court will consider whether to grant review in Oliva v. Nivar, a police accountability case. If review is denied, more than 20,000 federal police in Texas, Mississippi and Louisiana will be free to violate the Constitution, no matter how egregious their conduct.

José Oliva is a Vietnam veteran with a 25-year career in federal law enforcement. Five years ago, he was on his way to a dentist appointment at a Veterans Affairs hospital when three VA security guards attacked him in an unprovoked assault caught on video, choking José and tackling the 70-year-old man who posed no threat.

“It was three against one, and they had guns; I knew better than to resist,” José said when describing the assault.

Prosecutors refused to charge the officers, so José sued them in federal court for their violation of his Fourth Amendment rights by using excessive force. José won in the trial court, which held that the officers were not entitled to qualified immunity, but the 5th U.S. Circuit Court of Appeals held that because the officers worked for the federal—rather than state or local—government, they could not be sued for constitutional violations, no matter how outrageous their actions.

“There is no reason to treat federal law enforcement differently from its state and local counterparts,” said Patrick Jaicomo, an attorney for the Institute for Justice, which represents José. “Having this two-track system of accountability provides additional loopholes for avoiding a day in court, making it difficult to achieve meaningful reforms.”

“The Supreme Court has an opportunity here to make it clear that when federal law enforcement uses excessive force, they will face exactly the same consequences as those who happen to work for a state or a municipality,” said IJ Attorney Anya Bidwell, co-counsel in this case.

In addition to the Institute for Justice’s brief filed on behalf of José, a number of amicus (or “friend of the court”) briefs have been filed by notable scholars and public policy experts across various disciplines and philosophical outlooks, all of whom urge the Court to accept José’s case. These include:

  • A brief on behalf of Peter Schuck. Prof. Schuck is the Simeon E. Baldwin Professor of Law Emeritus at Yale University. He is a legend in the field of constitutional accountability. He wrote a treatise—Suing Government: Citizen Remedies for Official Wrongs (1983)—which became the foundational text on the subject and inspired many great legal minds to get involved in the field. In his brief, Prof. Schuck argues that the 5th Circuit’s decision denying José Oliva his day in court “departs radically from this Court’s established framework for evaluating damages claims against federal officials for constitutional torts, creating a split among the circuits.” Supreme Court review, therefore, is not only warranted but badly needed.
  • A brief on behalf of Seth Stoughton. Prof. Stoughton is a former police officer, who, among other appointments, teaches at the University of South Carolina School of Law. He is a well-respected authority on the use of force issues that plague our nation today. According to his brief, the 5th Circuit is home to one of the largest federal law enforcement forces in the country. There are more than 18,000 federal law enforcement officers in Texas alone, with the 5th Circuit overall hosting more than 20,500 federal police. This means that if the 5th Circuit’s decision is allowed to stand, a constitutional remedy will “effectively be abolished exactly where it is most crucial.” In his brief, Prof. Stoughton urges the Supreme Court to take up this case and reverse the horrible holding that prevents José from getting his day in court.
  • A brief that crosses philosophical boundaries on behalf of the ACLU, Cato Institute, DKT Liberty Project, and Law Enforcement Action Partnership. The brief argues that our current moment calls for a reevaluation of the excessive force jurisprudence and also for getting back to the original principles of this country’s founding, such as that where there is a right, there must be a remedy. The legal precedent in Bivens, in which the U.S. Supreme Court ruled that those in federal law enforcement could be held accountable for their actions, has proven to be one of the most powerful tools for remedying government abuses. The decision below in José’s case cannot be allowed to stand lest this tool be denied to those who most need it.

“We are grateful for the support of Professors Schuck and Stoughton, as well as ACLU, Cato, LEAP, and DKT,” said Scott Bullock, president and general counsel of the Institute for Justice. “It is incredible to have such commitment, especially at this early stage of the Supreme Court review. The Constitution is not an empty promise but provides vitally important constraints on government power. We ask the Supreme Court to grant review and make this absolutely clear to federal courts nationwide.”

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

Threat of Nonprofit Donor Harassment Spotlighted in U.S. Supreme Court Case

Institute for Justice files amicus brief to protect donor privacy

Arlington, Virginia—Imagine being a supporter of Planned Parenthood living in the Bible Belt, or a supporter of the NRA living in San Francisco. Would you want your identity disclosed to government officials who might misuse that information or allow it to be leaked to the public?

That question is at the heart of two consolidated U.S. Supreme Court cases—Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra—to be heard later this term, in which the Court will consider the constitutionality of one of the most sweeping intrusions into private speech and association in decades. Unless the Court overturns the decision of the 9th U.S. Circuit Court of Appeals upholding that intrusion, donors’ safety and the financial footing of nonprofits could be placed at risk.

The case arose when California’s Attorney General began demanding that nonprofits in the state turn over a list of their large contributors as a condition of charitable fundraising. Even though the Supreme Court has held for decades the First Amendment protects the right of nonprofits to keep their supporters’ identities private, the 9th Circuit ignored this precedent and instead relied on the Supreme Court’s decisions on campaign finance to uphold the suspicionless bulk collection of donor information.

“That was wrong and dangerous,” said Institute for Justice Senior Attorney Paul Sherman. The Institute for Justice filed a friend of the court brief on behalf of the Thomas More Law Center and the Americans for Prosperity Foundation. “The Supreme Court’s campaign finance jurisprudence is unlike any other area of First Amendment law and permits regulations of speech and association that would be unthinkable in other domains.”

Sherman added, “The Supreme Court must not allow those outlier precedents to swallow the general rule that Americans have the right to privacy of association. Doing so would open nonprofits to government retaliation that may be difficult or even impossible to detect.”

These concerns are not far-fetched.

“Imagine if the Trump administration had suddenly announced that it was requiring all tax-exempt groups to provide a list of their supporters to the Attorney General,” Sherman said. “Would liberal-leaning groups have felt confident that information would be used only for legitimate law-enforcement purposes?”

In the 1950s, the Court rejected an attempt by the state of Alabama to force the NAACP to turn over the names of its donors, recognizing that the risk of donors being harassed or threatened would undermine the civil rights organization’s base of financial support.

“Multiple people associated with Americans for Prosperity have received death threats or otherwise been harassed,” Sherman said. “At the same time, California has done a terrible job of keeping the nonprofit records it receives confidential; Americans for Prosperity’s expert witness was easily able to access all 350,000 of the supposedly ‘confidential’ documents stored on the Attorney General’s website.”

Institute for Justice President and General Counsel Scott Bullock said, “Everything the Court has done so far in this case—from relisting it multiple times to calling for the views of the Solicitor General—indicates that they are very concerned about the implications this ruling will have for nonprofits across the country. We hope and expect that the Court will reverse the 9th Circuit’s ruling and make clear that its unique campaign finance precedents have no proper application outside of that narrow context.”

Bullock added, “A fundamental purpose of privacy of association is to protect citizens from what government might do with that information. At a time when trust in government is near historic lows, charitable donors have every reason to want to keep their identities private. If the government thinks that information is necessary to investigate violations of the law, it can do what the government is supposed to do: get a warrant.”

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

Lawsuit Challenges New York City’s Abusive Building Code Fines and Fees

In 2016, Queens homeowner Joe Corsini came home to find a piece of paper on his door. It was a notice from the city. He was being fined $3,000 because he moved his pigeon coop from his backyard to his roof and didn’t realize he needed a building permit. Joe was frustrated, but not deterred. He hired an architect—and a lawyer—and started to work with the city to bring the coop into compliance. The city set out a series of unreasonable requirements and after months of going back and forth, Joe finally gave up. Despite working with the city, however, it continued to fine him. When he finally gave up, the city had imposed $11,000 in fines—all for a pigeon coop. To make matters worse, to appeal the fines, he had to first pay them in full. Understandably, Joe tore down the coop and paid the fines.

Resources

Joe is not alone in being targeted by the city’s abusive building inspectors. This year, the city brought in nearly $1 billion in fines and forfeitures, much of it raised by the Department of Buildings. Next year, the city projects it will increase that amount by another $150 million. It can only do that by increasing inspections and fines.

Although Joe may have torn down the coop, he is not done fighting the city. Today, he partnered with the Institute for Justice, a nonprofit public interest law firm, to sue the city and put an end to its unconstitutional program of trapping property owners in a byzantine system of permits and fines that few can escape.

“New York City’s building code treats ordinary homeowners like a revenue source, regularly imposing huge fines for minor violations,” said Bill Maurer, a senior attorney at the Institute for Justice. “An innocent mistake shouldn’t cost a homeowner tens or even hundreds of thousands of dollars in fines. The city’s system is so rigged against small property owners that few can escape unscathed.”

Every year, New York City’s Department of Buildings (DOB) issues thousands of tickets and fines for violations of the city’s codes and regulations, which are long, complex, and contained in three different sources. Some of these violations are issued to large developers for serious problems. No one denies that the city should protect public safety by enforcing its building code against skyscrapers and other major developments, but a growing number of tickets target ordinary homeowners who made inconsequential changes to their own property. For many of these tickets, the property owners cannot mount a defense and there is no appeals process. They have one option: pay. For other tickets, like Joe’s, the property owner can defend themselves, but they cannot appeal a decision to the city’s administrative appeals process and then to a court without first paying all fines the city has levied. This system is not only abusive and unfair; it is also unconstitutional.

The fines and fees collected through this process benefit the city’s General Fund, creating an incentive to impose maximum penalties without regard to whether a violation poses a threat to safety or whether the property owner can afford to pay.

“I cannot believe the Department of Buildings can just issue fines without any oversight,” said Joe. “And for the fines I could appeal, I could not even do that without paying thousands of dollars. This system is set up to punish homeowners and is designed to wring every dollar it can for harmless things.”

The Department of Buildings is not above the Constitution. When it imposes fines and fees on property owners, the owners must have a meaningful opportunity to be heard by an impartial adjudicator without the burdensome condition of paying everything upfront. This protection is the bedrock of due process and is especially crucial when the fines provide a financial incentive for the Department of Buildings to stack up penalties, as it did to Joe.

“The constitutional guarantee of due process for deprivation of property guards against precisely what the DOB is doing to unsuspecting homeowners across New York City,” said IJ Attorney Diana Simpson. “Joe’s lawsuit seeks to put an end to the DOB’s role as cop, judge, and jury for the city’s building code. It will ensure that the city focuses on actual threats to public safety, instead of targeting small homeowners without the know-how or the resources to fight back against the city’s draconian system that lines its own coffers.”

The Institute for Justice is the national law firm for liberty and the nation’s premier defender of private property rights, including lawsuits against New York City’s unconstitutional “no-fault” evictions, unconstitutional code enforcement practices in Pagedale, Missouri, and eminent domain abuses in National City, California.

IJ Supports New Bill in Congress That Would End Qualified Immunity Nationwide

Arlington, Va.—Rep. Ayanna Pressley (D-MA) reintroduced the Ending Qualified Immunity Act today, a bill that would make it much easier for individuals to sue government employees who violate their constitutional rights. The Institute for Justice is proud to endorse this bill as an important and long overdue solution for fixing the problem with government accountability that has been plaguing this nation for some time.

Under qualified immunity, government workers can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law.

Created by the U.S. Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in the statute that authorizes civil rights lawsuits against state and local government officials (Section 1983, originally Section 1 of the Ku Klux Klan Act of 1871). Yet even when qualified immunity is denied, government workers are almost always indemnified, with their employer or municipality ultimately paying their legal costs. In fact, one study found that “individual officers contributed to settlements in just 0.41% of these cases, and paid approximately 0.02% of the total awards to plaintiffs.”

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Anya Bidwell, a lawyer with the Institute for Justice. “For too long, qualified immunity has thwarted the original intent of Section 1983 and denied victims of government abuse a remedy for violations of their constitutional rights,” added IJ attorney Patrick Jaicomo.

True to its name, the Ending Qualified Immunity Act would eliminate qualified immunity for all local and state government employees—not just law enforcement officers, but also prison guards, county clerks, public school administrators, and municipal and state employees. If enacted, government workers would no longer be able to hide behind a hyper-technical analysis of what it means for the law to be clearly established and to violate the Constitution even when acting in bad faith. The courts would be able to focus—as is the case with non-governmental defendants—on whether the law was violated and on ordering a proper remedy.

First introduced last year by then Libertarian Rep. Justin Amash and Democratic Rep. Pressley, the Ending Qualified Immunity Act became the first bill to ever receive tripartisan support in Congress. Opposition to qualified immunity crosses party lines, earning the support of roughly two-thirds of Americans, and the killing of George Floyd last year united Americans on the need to fix the system in which government workers are above the law.

“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” concluded IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights exist only to the extent that they are actually enforced—and Ayanna Pressley’s bill is an important step in ensuring that they are. The Ending Qualified Immunity Act has our full support.”

Brownback Case Is NOT Over: What Happened Yesterday in the Police Brutality Case and What Happens Next

Arlington, Virginia—Yesterday, the U.S. Supreme Court issued its decision in Brownback v. King, a police brutality case involving an innocent college student, James King, who was brutally beaten in an unprovoked assault by members of a state-federal task force. On first glance, many presumed yesterday’s opinion ended James King’s legal quest to hold the officers who assaulted him accountable for their actions. But that is far from the case. The Court, in fact, remanded the heart of James King’s case to be heard by the 6th U.S. Circuit Court of Appeals.

King sued officers Allen and Brownback for violating his constitutional rights. In the same lawsuit, he filed claims against the U.S. government, under the Federal Tort Claims Act (FTCA). The case went all the way to the Supreme Court because the federal government argued that once King’s FTCA claims against the government got dismissed, his constitutional claims against the officers were also cancelled.

“Yesterday’s opinion handed the government a technical victory on an obscure issue of jurisdiction dealing with the FTCA, but through footnote 4 of the opinion and a powerful concurrence by Justice Sotomayor, the Court denied the government the substance of what it wanted, which was to end James King’s case,” said Institute for Justice Attorney Patrick Jaicomo, who argued the case before the Supreme Court. “Instead, the Court cleared away the complicated issues of jurisdiction and merits and remanded the case for the 6th Circuit to address the strongest argument James King has—whether you can sue the United States and its employees in the same lawsuit without one claim cancelling out the other one. The Institute for Justice will now present that case squarely and cleanly before the 6th Circuit.”

Associate Justice Thomas wrote in his opinion:

King argues, among other things, that the judgment bar does not apply to a dismissal of claims raised in the same lawsuit because common-law claim preclusion ordinarily “is not appropriate within a single lawsuit.” The Sixth Circuit did not address those arguments, and “we are a court of review, not of first view.” We leave it to the Sixth Circuit to address King’s alternative arguments on remand.

“We have centuries of common law on our side to make the point that if claims are brought in the same lawsuit, a dismissal of one cannot affect the fate of another,” said IJ Attorney Anya Bidwell, co-counsel in the case. “There is still a path to accountability for King, and if we prevail, the impact will be significant for those who want to hold government officials individually accountable for their actions when they violate your constitutional rights.”

As reported late yesterday by SCOTUSblog, “King’s case will live to see another day as he seeks to hold the officers who assaulted him accountable.”

For more information on this case, visit:  https://ij.org/case/brownback-v-king/.

Case Appealed to U.S. Supreme Court Asks: May Federal Appeals Courts Abandon Neutrality and Create Arguments for the Government in Civil Rights Cases?

Arlington, Virginia—In an appeal filed on February 18, the Institute for Justice is asking the U.S. Supreme Court to examine the question of whether federal judges have unfettered discretion to unilaterally inject their own arguments or legal theories into cases where state action is challenged and reaffirm that the federal courts cannot act as advocates for the state.

READ THE PETITION HERE.

Marcus & Millichap Real Estate Investment Services, Inc. (“Marcus & Millichap”) is a commercial real estate investment services company with offices throughout the U.S. and Canada. In the U.S., Marcus & Millichap brokers commercial real estate investment transactions that are inherently complex and national in scope. Most states accommodate the sort of interstate brokerage work that Marcus & Millichap performs. Nevada, however, requires individual licensees to maintain a physical presence in the state and prohibits most out-of-state broker involvement, even if working in cooperation with a local broker. As one of Nevada’s enforcers admitted, the law serves to prevent outsiders from “taking business away from our Nevada licensees.”

Marcus & Millichap filed suit in 2016 in federal court to challenge Nevada’s system as protectionist and unconstitutional. The trial court ultimately upheld Nevada’s law and Marcus & Millichap appealed to the 9th U.S. Circuit Court of Appeals. Marcus & Millichap asked the court of appeals to rule that the trial court had erred. The state of Nevada then asked the court of appeals to rule that the trial court got things right.

Rather than deciding which side was right, the 9th Circuit resurrected a procedural argument that no one had made on appeal, called “Younger abstention.” The Younger doctrine says that federal courts shouldn’t interfere with state-court enforcement proceedings. The problem, though, was that Nevada hadn’t asked the court of appeals to apply the Younger doctrine. Nevada, when pressed at oral argument, suggested that the omission had been deliberate.

Even so, the 9th Circuit raised Younger abstention unprompted and dismissed the case. The court introduced a theory no party had presented. It gave no reason for taking that unusual step, and on the strength of that new theory, it withdrew the federal courts from a case they had the power to decide.

Now, Marcus & Millichap and its brokers are asking the U.S. Supreme Court to step in. The 9th Circuit’s decision spotlights a broader phenomenon: courts of appeals’ exercising unconstrained and unexplained discretion to inject procedural hurdles into civil rights cases. The result is arbitrariness on a national scale. Across several courts of appeals, a subset of federal plaintiffs found themselves randomly ejected from federal court on Younger grounds. In all these cases, the federal courts have the power to address the merits. They can rightly exercise that power. Yet appellate courts raise Younger unilaterally, leaving parties unable to proceed in federal court. Represented by the Institute for Justice, Marcus & Millichap is asking the Supreme Court for justice: few questions are more demanding of uniform, transparent resolution than whether and when the federal courts can abdicate their duty to decide cases.

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

Washington Supreme Court rules the state cannot make innocent activity a felony

Today, the Washington Supreme Court ruled that the state cannot make innocent conduct illegal. In doing so, it struck down Washington’s felony drug possession statute, RCW 69.50.4013, because it criminalizes any and all drug possession, even when the person unknowingly possesses an illegal drug. The case is State v. Blake, No. 96873-0. 

The case concerned the conviction of Sharon Blake from Spokane, Washington. Ms. Blake was arrested for possessing a small baggy of methamphetamine in the coin pocket of her jeans. She argued that she had bought the jeans the previous day from a thrift store and did not know there had been drugs in the jeans when she wore them.  

Washington felony drug possession statute, however, makes it a crime to possess drugs even if the person had no idea that they were doing so. This statute is a “strict liability” statute, so a defendant’s state of mind, or “mens rea,” was irrelevant. Under the statute, a postal employee who unwittingly delivered a package containing drugs or the person who plucked the wrong bag at the airport are all as equally guilty as a person who intentionally trafficked drugs. Out of all states, only Washington had such a strict liability possession law. 

As a result, the court overturned Ms. Blake’s conviction. In doing so, the court recognized the ancient requirement thatwith very few exceptionscriminal laws may only punish knowing, deliberate conduct. It therefore struck down Washington’s felony drug possession law, leaving it to the Washington Legislature to pass a possession law consistent with constitutional guarantees. 

“Today’s decision recognizes what should be obvious—except in exceedingly rare instances, people who unknowingly or unwittingly violate a law cannot be convicted of crimes,” said William Maurer, the Managing Attorney of the Institute for Justice’s Seattle, Washington, office. The court specifically requested that IJ file a friend-of-the-court brief regarding the constitutionality of the law. “This recognition is particularly welcome now when we have seen how overzealous criminal prosecutions have harmed people across the country.”   

With the law struck down, the Washington Legislature will need to pass a new law if it intends to keep the knowing possession of drugs illegal. Maurer added, “When it addresses this issue the Washington Legislature must respect citizen’s due process rights and not needlessly criminalize any conduct that poses no threat to society.”  

Supreme Court Orders Appeals Court To Take Second Look at Case of Man Assaulted by Law Enforcement Officers

Arlington, Virginia—Today, in a case involving a college student beaten by law enforcement officers in an unprovoked attack, the U.S. Supreme Court refused the government’s request to create a new kind of immunity for the officers.  Instead, it sent the case against the officers back to a federal appeals court to decide whether claims brought in the student’s lawsuit should be dismissed simply because a government employee is the defendant.

Institute for Justice Attorney Patrick Jaicomo, who argued the case before the Court, said, “Although today’s decision appears at first glance to deal a blow to constitutional accountability, in reality, the Supreme Court teed up the central issue in this case for the federal appeals court to reconsider.  It is asking the 6th U.S. Circuit Court of Appeals to weigh in on whether centuries of common-law practice should apply—or be abandoned—when the issue involves constitutional violations committed by federal police.  When it does, our client James King, the innocent college student the officers choked and beat in 2014, will be able to persuasively argue why he deserves a day in court.  And that’s what we have been fighting for since day one.  If Americans must follow the law, government employees must follow the Constitution.”

In footnote 4 of the opinion, the Court notes, “King argues . . . that the judgment bar does not apply to a dismissal of claims raised in the same lawsuit because common-law claim preclusion ordinarily ‘is not appropriate within a single lawsuit.’”  But the Court declined to decide that issue at this stage of the case: “We leave it to the Sixth Circuit to address King’s . . . arguments on remand.”

IJ Attorney Anya Bidwell, co-counsel in the case, said, “When James King’s case goes back down to the federal appeals court, all this discussion about the merits of the case will no longer apply.  The only question before the court will be whether claims brought in the same lawsuit should cancel each other out simply because a government employee is the defendant.  That should never have been the case, but that is exactly what the government argued, and it seems the justices were rightly not convinced.”

Today’s opinion holds that when a court issues a judgment in one case, that judgment can be used to bar future legal actions.  But in King’s case, that “judgment bar” doesn’t apply to block multiple claims brought in the same case.  So, when King sued the government and the individual officers in separate claims as part of a single lawsuit, just because his case against the government didn’t proceed doesn’t mean his case against the officers is barred from being considered by the court.

In a powerful concurrence, Associate Justice Sonia Sotomayor highlighted many of the arguments made by King’s attorneys, noting that “while many lower courts have uncritically held that the [Federal Tort Claims Act (FTCA)’s] judgment bar applies to claims brought in the same action, there are reasons to question that conclusion.  This issue merits far closer consideration than it has thus far received.”  Further, she notes, “King raises a number of reasons to doubt [the government’s] reading” of the FTCA.

The Sixth Circuit will now decide whether the type of immunity the government requests ever applies when constitutional claims and FTCA claims are brought in a single lawsuit.

“When we go back to the 6th Circuit, this should not be a close call,” said Jaicomo.  “As Justice Sotomayor said in her concurrence, the government argues for a significant departure from the normal operation of common law, and the 6th Circuit will now get the opportunity to make it absolutely clear.”

“When the 6th Circuit finally rules that claims brought in the same lawsuit do not cancel each other out simply because a government employee is the defendant, this will send a clear message to the rest of the courts of appeals that they should abandon the loophole they have been using for years to deny individuals like James King their day in court,” said Bidwell.

“I am  happy with the outcome,” said IJ client James King.  “The fight continues, and this time on our terms.  I’m looking forward to being back in court.  The officers who assaulted me are not above the law and neither is anyone else, simply by virtue of being employed by the government.”

The opinion released this morning is consistent with the questions Justices asked during the oral argument, where the focus was on whether it makes sense to overturn centuries of common law and deny accountability by creating a special loophole for the government.

“We look forward to going back to the 6th Circuit and making it harder for government workers to violate the Constitution without consequences,” said IJ President and General Counsel Scott Bullock.  “This was the Institute for Justice’s first case we argued before the High Court as part of our Project on Immunity and Accountability, but it won’t be the last.  Just as IJ spotlighted and curtailed government abuse in the form of eminent domain for private gain and civil forfeiture, we will continue our work in the courts of law and in the court of public opinion until immunity doctrines are exposed and curtailed if not eliminated entirely.”

“Rights without remedies are not rights,” explained Patrick Jaicomo.  “The U.S. Supreme Court’s decision allowing King to continue his lawsuit gives power to the limits the Constitution places on government officials.”

The Institute for Justice’s Project on Immunity and Accountability seeks to hold government officials accountable when they violate individual rights like those of James King. As part of the Project, IJ will continue to fight against the many special protections that shield government officials from accountability.

For more information on this case, visit:  https://ij.org/case/brownback-v-king/.

Homeowner Facing $100,000 Parking Violation Sues Florida Town for “Excessive Fines”

West Palm Beach, Fla.—The town of Lantana has practically robbed Sandy Martinez of the value of her home through excessive fines, mostly as a result of the way she parks her own cars in her own driveway. One parking violation, assessed daily for over a year, totals more than $100,000. The total amount the town fined her, which includes two other minor infractions, comes to an astounding $165,000, more than half what her home is worth. It is also an amount that is impossible for Sandy to ever pay off.

But now Sandy is teaming up with the Institute for Justice (IJ) to file a lawsuit that asks a Florida court to rule that her excessive fines violate the state constitution. If Sandy’s suit is successful, it could pave the way for other Floridians to seek protection from crippling fines that trap them in a cycle of debt and poverty.

“The government cannot lock you into a lifetime of debt and cripple you financially for minor infractions that do not threaten health or safety,” said IJ Attorney Ari Bargil. “Florida’s Constitution forbids fines that are ‘excessive’ or ‘shock the conscience.’ And that’s exactly how to describe six-figure fines for petty violations—unconscionable.”

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

With no other safe or legal options for parking other than the driveway, Sandy has received several citations. When Lantana cites a homeowner, the city forces them to correct the violation then call and schedule another inspection. After one violation, Sandy called the city but an inspector never came out. When Sandy discovered that the fines were still accruing over a year later, she immediately called and passed the inspection. But by then, the amount she owed was $101,750. This fine is on top of fines for two other similarly trivial violations—for cracks in the driveway and a fence that fell over during a storm.

“I think it’s ridiculous that Lantana would charge me over $100,000 for parking on my own grass that I paid for,” said Sandy. “Fines I can never hope to pay off and that basically make me a renter in my own home are ‘excessive.’ I hope that by successfully challenging these fines, I can ensure that no one else has to go through something similar.”

Unfortunately, Sandy is far from the only American to be crushed by sky-high code citations. A 2017 report by the U.S. Commission on Civil Rights revealed how municipal fines and fees abuse is a nationwide problem. Yet some states, such as Indiana and California, have started to consider an offender’s ability to pay when assessing fines and fees. Florida’s Constitution protects residents from excessive fines and courts have held that fines that “shock the conscience” are unconstitutional. Sandy’s case could more firmly establish when fines violate the state constitution.

“Municipal code enforcement in America is completely out of control,” said IJ Attorney Michael Greenberg. “All over the country, hardworking people regularly face financial ruin from daily code enforcement penalties that quickly snowball into tens or hundreds of thousands of dollars. Our constitutional protection from excessive fines prohibits precisely this sort of abuse.”

IJ has challenged abusive fines and fees across the country, notably in Dunedin, Florida, where a homeowner is facing foreclosure over $30,000 in fines for tall grass, and in Eagle, Wisconsin, where a couple has been assessed $90,000 for parking trucks on their rural property. IJ has successfully protected homeowners in California and Missouri from abusive fines and fees practices. In 2019, IJ released a study of cities that relied heavily on fines and fees to balance their budgets, “The Price of Taxation by Citation,” and in 2020 released a 50-state survey of state laws governing municipal fines and fees.

City Reforms Cottage Food Ordinance in Response to Institute for Justice Lawsuit

Lincoln, Neb.—The city of Lincoln has amended the cottage food ordinance that last year prompted a lawsuit by the Institute for Justice (IJ) and home baker Cindy Harper, in partnership with Husch Blackwell LLP.

In 2019, Cindy helped convince state lawmakers to adopt LB 304, which reformed Nebraska’s regulations for the home-based sale of shelf-stable foods like Cindy’s decorative sugar cookies. Specifically, LB 304 exempted cottage food producers from the burdensome permitting and inspection requirements that apply to commercial restaurants—as long as they register with the state and pass a simple food safety course.

Within months, however, the city of Lincoln went rogue by imposing the same permitting and inspection requirements on cottage food producers operating locally. So last year, Cindy teamed up with IJ to file a constitutional lawsuit to have the city’s ordinance declared preempted by LB 304.

The city initially dug its heels in, filing a motion to dismiss Cindy’s case. But in October, a state trial court denied the motion, noting the clear “tension” between the city’s ordinance and LB 304.

In response to the court’s decision, on Tuesday Lincoln’s City Council voted unanimously to amend its cottage food regulations. Under the new ordinance, cottage food producers registered under LB 304 simply have to file that registration with the city, and inspections are only allowed under narrow circumstances (for example, based on a specific complaint of food-borne illness).

“I’m very pleased with the revision to the ordinance and that cottage food producers in Lincoln can now work with regulations that are more in line with the state law,” said Cindy. “I want to thank the Institute for Justice and my attorneys for all the hard work that went into making this happen for all of us.”

“This new ordinance is a major improvement for cottage food producers in Lincoln,” explained IJ Attorney Joshua Windham, lead counsel on the case. “Shelf-stable foods like Cindy’s sugar cookies are just as safe in Lincoln as they are in the rest of the state, so there was never any reason for Lincoln to set itself apart with additional regulations. This new ordinance better reflects that reality.”

Cindy is currently consulting with her attorneys to decide how this development impacts the legal status of her case.

New Mexico House Approves Major Bill Against Qualified Immunity

By a vote of 39-29, the New Mexico House of Representatives approved a landmark bill on Tuesday that would let individuals sue government agencies for violating their rights. Critically, the proposed New Mexico Civil Rights Act (HB 4) would eliminate “qualified immunity” as a legal defense. 

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

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Institute for Justice Attorney Keith Neely, who submitted testimony in favor of the bill.  “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”

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

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

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

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

National Food Freedom Advocate Endorses Bill That Would Expand Food Freedom in South Carolina

South Carolina is one step closer to taking a major step forward for food entrepreneurs and the “buy local” movement with the introduction of S. 506, which would expand the types of homemade foods South Carolinians can sell their neighbors to all shelf-stable foods, like jams, jellies, soup mixes and more. The legislation would also permit the sale of these foods via online orders, mail orders and retail. This would dramatically expand South Carolina’s food freedom, for current law limits home-produced food sales to just baked goods and candies. The Institute for Justice (IJ), the nation’s leading law firm for food freedom, supports the bill, which would benefit both consumers and entrepreneurs.

“South Carolinians should be able to freely buy and sell safe foods to their neighbors,” said IJ Attorney Tatiana Pino. “Especially now, the government should support giving its citizens the freedom to support themselves and their families through a homemade food business. This bill helps accomplish that goal.”

The bill would require home-based food products to be labeled with the name and address of the producer, or an identification number that can be used to trace the product if the producer does not want his or her address on the label. The label also requires a clear, all-caps label indicating that the food was produced at home.

For many South Carolinians, this freedom is not an abstract concept, but a needed change that would allow them to pursue their dreams and support their families.

Take Kathryn Riley, who lives in the suburbs of Charleston and wants to be able to mail cakes, pies and fruit tamales to local customers. Kathryn is disabled and can’t work outside the home, but does not receive government assistance. She loves baking, and if S. 506 becomes law, she intends to serve her community her tasty treats.

“I can’t drive or work outside my home because of disability, and this bill would help me bring some extra income for my family,” said Kathryn.

The stories for why South Carolinians want the legislature to pass S. 506 come in all kinds of different shapes and sizes, as do the businesses they plan to create. One South Carolinian who supports the bill previously worked as a professional baker, but gave up her business to homeschool her young son. She said this bill would give greater flexibility and let her expand her children’s opportunities and education.

Others already make some money through home-baked good sales but would like to expand that to a full-time business, which would allow her to be with her family more. Under South Carolina’s current food freedom laws, a full-fledged home-produced or “cottage food” business is not very feasible.

Whatever their reasons or long-term goals, the expansion of food freedom in the Palmetto State would mean new economic activity for families that need it most. Raw data backs up the effect these legal changes can have on working families: After IJ sued Minnesota for its homemade food laws, the state eased its restrictions in 2015, leading 3,000 cottage food producers to register with the state in just two years.

In 2017, IJ authored the nation’s first comprehensive study of cottage food businesses, which showed that cottage food businesses serve as an important path to entrepreneurship for their owners, who are often lower-income women living in rural areas.

AFP South Carolina Director of Grassroots Operations Candace Carroll praised the effects the bill would have on South Carolina’s economy if passed into law, saying, “South Carolina’s ‘cottage food laws’ are burdensome regulations on the sale of homemade foods. S 506 would remove these barriers and allow South Carolina’s homemade food producers to follow their passion and provide for their families. It’s time to free the food and recognize the benefits home cooking for profit can bring to entrepreneurs and food-loving South Carolinians.”

The bill now has a hearing scheduled for 9:00 a.m. EST Wednesday.

Sierra Vista Residents Sue City to Keep Their Homes in Place

Sierra Vista, Ariz.—Staring down the possibility of homelessness, three Sierra Vista residents ordered to move their RV homes sued the city today. The suit comes just days after the city council chose to enforce eviction orders initially issued in 2020. The Institute for Justice (IJ), which has been working with the homeowners since last summer, filed the lawsuit to protect the homeowners’ property rights under the Arizona Constitution.

“No one should be made homeless in the name of zoning,” said Paul Avelar, managing attorney of IJ’s Arizona office. “There is no health or safety reason for kicking our clients out of their homes. The city’s eviction orders are senseless and cruel and come in the middle of a pandemic.”

Amanda Root and Georgia and Grandy Montgomery live in the Cloud 9 neighborhood. For years they have lived in trailer homes the city deems RVs that are on property that they respectively own and rent. The neighborhood is dotted with derelict mobile homes, yet the city is seeking to evict well-maintained RV homes. Living in RVs is not illegal in the Cloud 9 neighborhood, just on the certain properties – including those occupied by Root and the Montgomerys.

Amanda Root has lived in Sierra Vista for 26 years and owned her property in Cloud 9 for 21 years. Unfortunately, Amanda’s manufactured home was lost to fire in 2016. Without insurance, she was not sure whether she would be able to afford another. Fortunately, friends donated the trailer she lives in now.

“I’m suing Sierra Vista because their order would make me homeless,” said Amanda. “I love my home, I take good care of my property and I shouldn’t have to move. It’s frustrating because I’m surrounded by houses that are falling apart and the city is doing nothing about them. I own this land, why should I have to go somewhere else?”

In July 2020, Cloud 9 residents received notices ordering them to move their homes within 30 days. The orders came without hearings, a procedure for appeal, or any court approvals. The city does not maintain that the homes are unsafe for their residents or a danger for the neighborhood. The lawsuit asserts that abusive zoning laws and failure to provide residents with due process before taking away their property rights are violations of the Arizona Constitution.

More broadly, restrictive zoning makes it difficult, and sometimes impossible, for people of modest means to live in modest homes. Amanda, Georgia and Grandy have affordable housing that allows them to live on their fixed incomes. The city is asking them to leave simply because it says so and without regard to the fact that the residents do not have clear options for other housing.

“Homelessness is a serious and growing problem and there’s broad agreement that restrictive zoning makes it nearly impossible for many Americans to find affordable housing,” said IJ Constitutional Law Fellow John Wrench. “Eviction should be a tool of last resort and should only come after homeowners have a chance to contest the order. Your property rights don’t depend on whether you live in a castle or RV.”

The Institute for Justice defends property rights nationwide. IJ successfully defended a neighborhood targeted with abusive fines in fees in Charlestown, Indiana. In Dunedin, Florida, IJ is defending a homeowner facing foreclosure over fines for tall grass. And in North Wilkesboro, North Carolina, IJ is helping a homeless shelter that was denied a permit despite meeting all of the city’s zoning requirements.

Seven Wisconsinites Challenge State Ban on Sale of Homemade, Shelf-Stable Foods

Thinking of buying your sweetheart chocolates this Valentine’s Day? They better not be homemade, or you will be breaking the law. Although Wisconsin prides itself on fostering fresh and locally made food, it has one of the most restrictive laws on selling homemade food in the country. That’s why yesterday afternoon, seven Wisconsinites and the Wisconsin Cottage Foods Association teamed with the Institute for Justice (IJ) to challenge Wisconsin’s ban on selling their homemade shelf-stable foods.

Wisconsin bans the sale of many homemade foods, including common and shelf-stable foods like chocolates, candies, fudge, Rice Krispies treats, granola and roasted coffee beans. These foods are completely safe and commonly sold in other states. Yet the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) aggressively enforces this ban, even sending cease and desist letters to those who dare violate the ban.

“Selling homemade foods is an important source of income for farmers, stay-at-home parents, restaurant workers, and so many others across the state,” said IJ Senior Attorney Erica Smith. “Now, during the pandemic, being able to have a home-based business is more important than ever. Yet Wisconsin persists in arbitrarily banning the sale of many safe homemade foods. We hope the courts will protect economic liberty and strike this ban down.”

This is not the first time DATCP has been sued for Wisconsin’s unreasonable restrictions on homemade foods. In 2016, three home bakers joined with the Institute for Justice to bring a lawsuit against DATCP for its ban on the sale of home-baked goods. Judge Duane Jorgenson of the Lafayette County Circuit Court struck down the ban in 2017 as unconstitutional under the Wisconsin Constitution’s protections for economic liberty. As Judge Jorgensen ruled, shelf-stable home-baked goods are completely safe, and just as safe as other homemade foods that Wisconsin allows to be sold—such as cider, popcorn, honey, syrups, jams and jellies. Although Wisconsinites can sell shelf-stable baked goods under the court ruling, the sale of other shelf-stable foods are still banned.

The plaintiffs in the new lawsuit are seven individuals from across the state, as well as the newly formed Wisconsin Cottage Foods Association, a nonprofit association of people who make and support the sale of homemade foods in Wisconsin. The goods they want to sell vary, from home-roasted coffee beans to chocolate cocoa bombs. And the scope of the businesses they plan to create differs, too, from a few extra dollars for their families to a full-time occupation.

Mark and Paula Radl, for example, are longtime residents of Manitowoc County, and they have been looking for ways to supplement their income as they get older. A friend who sells honey and maple syrup suggested they sell roasted coffee beans, and the Radls paid thousands of dollars to create a setup for them to do so. As a precaution, the Radls contacted their local county health department to approve their setup. The health inspector admitted the setup was clean and safe, but told them they could not legally sell their roasted coffee beans without a license and commercial-grade kitchen. That can cost over $40,000.

“My wife and I are very entrepreneurial and like the idea of being self-sufficient, and we both love coffee. We believe in fairness and opportunity for the little guy, and that’s why we’re joining this lawsuit,” said Mark Radl.

Stacy Beduhn of Outagamie County used to run a small day care, but she had to close it because of the pandemic. In the meantime, Stacy has started her own bakery, “Sweet Creations by Stacy.” Although Stacy can sell home-baked goods under the Court’s 2017 ruling, she still must turn away customers who request other homemade foods. “Customers are requesting that I make cocoa bombs and Valentine’s Day chocolates, but I have to turn those orders down,” said Beduhn. “It doesn’t make sense that I can sell a cookie, but not a chocolate.”

Even after the 2017 court ruling allowing the sale of baked goods, DATCP remains stubbornly aggressive. It has interpreted “baked good” to mean foods made with flour, and continues to ban sales of baked goods without flour, like granola. Along with the new lawsuit to allow shelf-stable homemade food sales, the bakers filed a motion yesterday for DATCP to follow the court order and allow the sale of all shelf-stable baked foods, regardless of whether they contain flour.

“Years ago, a Wisconsin court declared the state’s ban on home-baked goods unconstitutional. ‘Baked goods’ means ‘baked goods,’ not just baked goods made with flour,” said IJ Law & Liberty Fellow Suranjan Sen.

Lisa Kivirist, a plaintiff in the original lawsuit against Wisconsin’s baked-good ban, is joining the new fight to expand food freedom in Wisconsin. She sells shelf-stable breads and muffins, but she would like to sell flourless baked goods like granola as well as other shelf-stable treats like chocolates and fried donuts—homemade foods that Wisconsin prohibits from sale.

“As small-scale rural entrepreneurs, we’ve hit many barriers within our state when it comes to earning an honest livelihood. Because of the ruling against Wisconsin’s baked-good ban, we have hundreds of new business upstarts throughout the state. We can expand that so much further by expanding to all shelf-stable goods,” said Kivirist.

The plaintiffs are also represented by Isaiah M. Richie in West Bend, Wisconsin who is serving as local counsel.

The seven cottage food producers are challenging DATCP for violating a court order by continuing to ban the sale of baked goods not made with flour. The new lawsuit challenging DATCP’s ban on the sale of other shelf-stable foods challenges the ban as a violation of their due-process and equal-protection rights under the Wisconsin Constitution. All they ask is that people in Wisconsin be able to sell their safe, shelf-stable foods directly to consumers.

In Precedent-Setting Decision, Pennsylvania Commonwealth Court Shines Light on Controversial Forfeiture Records

Harrisburg, Pa.—Today, the Pennsylvania Commonwealth Court struck a blow for transparency and good government when it ruled that the names of successful bidders at public auctions of property seized and forfeited by law enforcement are public records that must be disclosed. Today’s ruling is a victory for the LNP | LancasterOnline and its reporter, Carter Walker, who sought the records as part of an investigation into the civil forfeiture practices of the Lancaster County District Attorney. In 2019, Carter and LNP teamed up with the Institute for Justice (IJ) to defend the requests after then-District Attorney Craig Stedman challenged them in court.

“Today’s ruling is a win for transparency and the right of Pennsylvanians to know what happens when law enforcement takes property,” said IJ Attorney Kirby West. “This victory means Carter and LNP will now be able to shed light on forfeiture practices and hold officials accountable in Lancaster County. And it will allow other members of the media and the public throughout Pennsylvania to request similar records to uncover forfeiture abuses in their own communities.”

After the Lancaster district attorney denied LNP reporter Carter Walker’s request for civil forfeiture records in September 2018, the Pennsylvania Office of Open Records said the records should be turned over. But former District Attorney Stedman appealed the decision in court and, although current District Attorney Heather Adams released some requested records upon taking office, she continued to claim that the names of winning auction bidders should not be turned over.

Today’s ruling from the Commonwealth Court rejected that plea for secrecy, with its decision firmly declaring that, “Disclosure of names of successful bidders at public auctions of forfeited items advances the accountability of the law enforcement authorities responsible for the civil forfeiture of property.”

“We’re pleased that Commonwealth Court agrees with LNP | LancasterOnline and the Institute for Justice that these records are a matter of great public interest and ought to be available for inspection by all citizens,” said LNP executive editor Tom Murse. “We look forward to using these public records, once shielded from public view by the former district attorney, to report more thoroughly on how Lancaster County uses civil forfeiture. The court’s ruling is a victory for transparency in government and, thus, a victory for all citizens of Pennsylvania.”

Sunlight is the best disinfectant, and it is nowhere needed more than in Pennsylvania. From 2002 to 2018, Pennsylvania law enforcement forfeited $279 million in property. And reports from other counties within the Commonwealth show that law enforcement officers have used their position and inside knowledge to purchase forfeited property sold at auction for their own financial gain. The loose laws surrounding forfeiture in the Commonwealth led IJ to bring a massive class-action to end the practice in Philadelphia. And by allowing the disclosure of the names of successful bidders, today’s ruling from the Commonwealth Court ensures that citizens throughout Pennsylvania will be able to hold law enforcement accountable for similar abuses of power.

New Report: Forfeiture Doesn’t Work to Combat Crime but Is Used to Raise Revenue

Arlington, Va.—Across the country, law enforcement agencies use forfeiture to take billions of dollars in cash, cars and homes under the guise of fighting crime. Yet a new study released today by the Institute for Justice (IJ), “Does Forfeiture Work?,” demonstrates that state forfeiture programs do not help police fight crime. Instead, the study indicates that police use forfeiture to boost revenue—in other words, to police for profit. The study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively—Arizona, Hawaii, Iowa, Michigan and Minnesota—as well as detailed state and local crime, drug use and economic data.

Specifically, the new study finds:

  • More forfeiture proceeds do not help police solve more crimes—and they may, perversely, make police less effective at solving violent crimes.
  • More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade—and the reduction of drug use—as a primary purpose of forfeiture.
  • When local budgets are squeezed, police respond by increasing their reliance on forfeiture. A one percentage point increase in unemployment—a common measure of economic health—is associated with an 11% to 12% increase in forfeiture activity.

“Law enforcement representatives have argued that any civil liberties intrusions from forfeiture are justified because the revenue helps fight crime, but the evidence does not support this”, said Dr. Brian Kelly, associate professor of economics Seattle University’s Albers School of Business and Economics and the study’s author. “In fact, the focus on bringing in revenue may well detract from efforts to fight serious, violent crimes.”

Watch a video interview with Dr. Kelly HERE.

This work builds on a 2019 nationwide study that considered whether the federal government’s equitable sharing forfeiture program was effective in fighting crime. Similarly, that study showed that forfeiture failed to fight crime but is used to raise revenue.

The scale of forfeiture is vast, with states and the federal government raking in at least $68.8 billion since 2000. With not all states providing complete data, this figure drastically undercounts property taken from people through forfeiture. The five states studied in “Does Forfeiture Work?” are among those that provide the most data, making this analysis possible.

The vast majority of forfeitures are conducted using civil forfeiture, a process that tips the scales heavily in the government’s favor. After the government seizes property, owners must navigate a maze of procedures to try to get it back. Owners are not afforded an attorney and the government need not charge them with a crime, let alone convict them of one, to forfeit—permanently keep—their property. Instead, the government just has to connect property to alleged criminal activity by a standard of proof that is typically far lower than the proof beyond a reasonable doubt required in a criminal trial. Finally, since many law enforcement agencies get to keep forfeiture proceeds, they have an incentive to seize as much as possible. These civil liberties concerns have prompted many states to closely consider or pass forfeiture reforms.

The findings from “Does Forfeiture Work?” are also reinforced by another recent study showing that when New Mexico eliminated civil forfeiture, public safety was not compromised. Compared to those in neighboring Colorado and Texas, crime rates in New Mexico remained steady in the months and years following the reform, suggesting forfeiture does not deter crime and law enforcement is able to do their jobs without forfeiture proceeds.

“This is more powerful evidence that lawmakers across the country need to prioritize ending civil forfeiture and replacing it with criminal forfeiture,” said Lee McGrath, IJ’s senior legislative counsel. “For years, law enforcement has maintained, on the basis of mere anecdotes, that forfeiture is essential to crime fighting and combating drug abuse. Lawmakers can ensure law enforcement is focused on public safety by removing the incentives to police for profit.”

Since the Institute for Justice began its End Forfeiture initiative in 2010, 35 states and the District of Columbia have enacted forfeiture reforms. Seven states and the District have restricted equitable sharing, limiting law enforcement’s ability to receive funding through the program and making it harder for law enforcement to circumvent state civil forfeiture laws. And in 2015, New Mexico abolished civil forfeiture, replacing it with criminal forfeiture and requiring that all forfeiture proceeds be deposited in the state’s general fund. In 2019, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

Tennessee Parents Ask Tennessee Supreme Court to Protect Education Savings Accounts for 2021-22

Last night, Natu Bah and Builguissa Diallo, two parents who partnered with the Institute for Justice (IJ) to defend the Tennessee Education Savings Account Pilot Program from a constitutional challenge levied against it in February, filed a motion with the Tennessee Supreme Court to ensure Tennessee families can use Education Savings Accounts (ESAs) in the upcoming 2021-22 school year should they prevail in the Tennessee Supreme Court. As of now, due to an injunction issued last year by the Chancery Court of Davidson County, even if Bah and Diallo prevail in Tennessee’s high court, they along with other Tennessee families will not have ESAs available in the fall unless the injunction is modified.

“Parents like Natu and Builguissa are among the thousands who will send their kids to better schools because of this program. This motion will ensure that they’re able to do so once the program is ruled constitutional,” said IJ Attorney Keith Neely.

The Chancery Court’s injunction went into effect in May 2020 and stops the Tennessee Department of Education from processing ESA applications and taking the administrative steps to ready the ESA program. In a September ruling against the program, the appeals court of appeals affirmed the lower court and ruled that the ESA program was unconstitutional under the Tennessee Constitution’s Home Rule Amendment. On February 4, the Tennessee Supreme Court granted review and will hear the case.

“The need to protect educational choice for Tennessee families is made even more clear by Metro Nashville and Shelby County shutting the doors to the public schools while simultaneously working to extinguish the educational options that empower parents to go elsewhere,” said IJ Managing Attorney Arif Panju. “Parents will vindicate their right to choose the best education for their children at the Tennessee Supreme Court.”

At issue in the Tennessee Supreme Court is how to interpret the Home Rule Amendment, a provision of the state constitution that prohibits the General Assembly from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.”

But the ESA program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. ESAs simply empower low- and middle-income families with children assigned to some of Tennessee’s worst-performing schools, and does so by allowing them to receive their education benefit in an ESA so that they can afford private educational options that meet their needs.

The ESA program was passed in 2019 by the Tennessee Legislature. The program can offer a lifeline to families that would like to leave underperforming school districts that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying low- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

Oral argument will be scheduled following the completion of briefing.

New Illinois Bill Would Protect the Right to Garden 

Late last week, Rep. Sonya Harper filed the Illinois Vegetable Garden Protection Act (HB 633), which would preserve and protect the right of all Illinoisans to “cultivate vegetable gardens on their own property, or on the property of another with the permission of the owner, in any county, municipality, or other political subdivision of this state.” The Act would protect the right to grow vegetables, as well as “herbs, fruits, flowers, pollinator plants, leafy greens, or other edible plants.” For many Illinoisans, this reform has been a long-time coming, as similar measures have come close to passage in prior sessions. A companion bill (SB 170) has also been introduced by Sen. David Koehler.  

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

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

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

National Food Freedom Advocate Announces Support of Bill Expanding Food Freedom in New Mexico

Albuquerque bans the sale of home-baked goods and New Mexicans living outside its largest city suffer from onerous regulations that make it difficult to start a homemade, or “cottage foods” business. A new bill being introduced Tuesday at 8:30 a.m. MST would permit New Mexican entrepreneurs in any city to start their own home-based food businesses, and it would also allow home-based food producers to easily sell properly labeled shelf-stable foods identified as homemade—similar to what is allowed in other states nationwide. The Institute for Justice (IJ), the nation’s leading advocate for food freedom, welcomes the effort to expand food freedom throughout New Mexico.

“Every year, more states expand their homemade foods laws, but New Mexico is still at the back of the pack,” said Erica Smith, senior attorney at the Institute for Justice and legal expert on cottage food laws. “These laws are great for farmers, stay-at-home parents, people with disabilities and many others who have a talent in the kitchen but want or need to work from home. Now during the pandemic, making it easier for people to work from home is crucial.”

After Albuquerque mother Katie Sacoman’s daughter was born, she quit her teaching job to watch her grow up, but she still wants to make some money to support her family doing what she likes best: baking.

After learning of the ban, Katie contacted the city to see if this was something that could be changed. She was told there were no plans to at this time, a fact so frustrating to her she considered moving, ultimately deciding against it because she loves Albuquerque and because her husband works in the city. Katie supports HB 177 because it would let her to continue raising her daughter at home while following her dreams of selling her popular sugar cookies to support her family.

“I’ve been looking into building this business for three years, and I haven’t been able to because of these restrictions. Having the ability to build a business that I can fit my family’s schedule around would be such a great privilege,” Sacoman said.

Albuquerque is one of the only cities in the country that still bans the sale of homemade food. Should Albuquerque lift its ban, it would create dozens, perhaps even hundreds of small businesses. After IJ sued, Minnesota eased its restrictions on cottage food sales in 2015, leading 3,000 cottage food producers to register with the state in just two years. Texas saw similar development after it expanded its cottage food laws. Albuquerque could similarly benefit from lifting its restrictions.

New Mexicans outside Albuquerque do not have it much better. The current law bans sales from the home, which are allowed in virtually every other state. The law also bans online sales, which have been increasingly popular in other states during the pandemic. Instead, sellers can only sell at farmers markets, roadside stands and special events. The bill would fix these restrictions.

Current state law also requires would-be cottage food producers to go through a burdensome application process to get a permit, just to sell safe and shelf-stable foods like cupcakes or bread. The permit application includes pages of paperwork, a $100 fee, a kitchen inspection, a food safety course, and unnecessary requirements for home kitchens that sometimes require thousands of dollars in upgrades, such as installing extra sinks. In addition, cottage food producers must provide health inspectors with each of their recipes, and keep samples of all their sold products. This is in contrast to other states, that allow cottage food producers to start selling without a permit or inspection or meeting other burdensome requirements. The bill would remove these barriers.

“Home bakers throughout New Mexico just want to do what people throughout the country have been safely doing for years: sell shelf-stable goods like cookies to support themselves and their families,” said IJ Activism Assistant Ellen Hamlett

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

The hearing on HB 177 will be in front of the House Agriculture and Water Resources Committee. The bill is sponsored by Rep. Zach Cook.

Maine Parents Appeal School Choice Case To U.S. Supreme Court

Arlington, Virginia—May states bar parents from participating in a student-aid program because they send their children to schools that provide religious instruction, or does that violate the Constitution?  That is the question the Institute for Justice (IJ) has asked the U.S. Supreme Court to resolve as it appeals a federal court ruling that discriminates against parents who select such schools.

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

Despite that ruling, the 1st U.S. Circuit Court of Appeals, in October 2020, upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, which was created in 1873, the state pays for students who live in towns that do not maintain a public school to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Until a flawed legal opinion by the state’s attorney general in 1980, parents were free to exercise their independent choice to select religious schools as one of their options. Now, however, the school that parents select for their child must be “nonsectarian,” which the state interprets to mean a school that does not provide religious instruction.

According to the 1st Circuit’s decision upholding this exclusion, the exclusion turns not on the religious “status” of the excluded schools, but rather on the religious “use” to which a student’s aid would be put—that is, procuring an education that includes religious instruction. In other words, the court held that although Espinoza prohibits Maine from excluding schools because they are religious, it can prohibit parents from choosing schools that do religious things.

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Institute for Justice Senior Attorney Michael Bindas. “Parents deserve the right to choose the school that is best for their children, whether it’s a school that focuses on STEM instruction, offers language immersion, or provides robust instruction in the arts. Maine correctly allows parents to choose such schools—or virtually any other school they think will best serve their kids. But the state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”

“Religious discrimination is religious discrimination,” Bindas said. “By allowing nominally religious schools to participate but excluding schools that actually provide a religious curriculum, Maine is making governmental decisions about how religious is too religious. Government should not have that power. It violates the Religion Clauses and Equal Protection Clause of the U.S. Constitution.”

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

There is a significant split of authority among courts across the nation on this issue. The 6th and 10th U.S. Circuit Courts of Appeals have held that government may not bar families participating in student-aid programs from choosing schools that provide religious instruction. The Vermont Supreme Court and now the 1st U.S. Circuit Court of Appeals, however, have upheld such religious exclusions.

“The Court should grant this case and resolve this issue once and for all,” Bindas said. “Whether there is a constitutionally significant difference between discrimination based on ‘religious status’ and discrimination based on ‘religious use’ is a profoundly important question, especially in the context of student-aid programs—programs that operate on the private choice of individuals. In such programs, any religious use of a benefit should be attributable to the individual recipient—the parent—and not to the government. States should not be permitted to withhold an otherwise available education benefit simply because a student would make the private and independent choice to use that benefit to procure an education that includes religious instruction.”

Maine’s exclusion of religious schools harms families like the Carsons and the Nelsons. Both families live in a school district that neither operates a public secondary school nor contracts with a particular secondary school for the education of its resident secondary students. Accordingly, the Carsons and Nelsons are entitled to the tuition assistance benefit. Because of the exclusion of religious schools, however, neither family can use the benefit at the school they believe is best for their child.

Amy and Dave Carson send their daughter to Bangor Christian Schools, a private, nonprofit school in Maine. They selected Bangor Christian because the school’s worldview aligns with their sincerely held religious beliefs and because of the school’s high academic standards.

The Maine Department of Education Department classifies Bangor Christian, which is fully accredited by the New England Association of Schools and Colleges, as a “private school approved for attendance purposes” and, thus, in satisfaction of Maine’s compulsory attendance laws. But because the school is “sectarian,” “instilling a Biblical worldview in its students” and “intertwin[ing]” religious instruction with its curriculum, it cannot be approved for tuition assistance. Consequently, the Carsons must pay their daughter’s tuition out-of-pocket.

Angela and Troy Nelson send their children to Erskine Academy, a secular private high school that is approved for tuition assistance purposes. However, they would prefer to send them to Temple Academy, a school that aligns with their sincerely held religious beliefs. Temple, like Bangor Christian, is fully accredited, but because it is “sectarian,” Maine excludes it from the state’s tuition assistance program. Because the Nelsons cannot afford tuition for their children to attend Temple, they remain at Erskine Academy, despite their firm belief that Temple would better meet their educational needs.

Meanwhile, schools that are only nominally religious are perfectly free to participate in the tuition assistance program. For example, Cardigan Mountain School—a private school in New Hampshire that purports to teach “universal . . . spiritual values,” both “in and out of the classroom” and at its required weekly chapel meetings—was approved to participate in the program. Yet a student cannot attend a Jewish, Catholic or Islamic school with her tuition assistance benefit.

Lea Patterson, an attorney with First Liberty Institute, which serves as co-counsel with the Institute for Justice in this case, said, “For 40 years, Maine has rejected parental choice in education and allowed religious discrimination to persist. The Supreme Court should act now so yet another generation of schoolchildren is not deprived of desperately needed educational opportunity and the right to freely exercise their religion.”

“The Supreme Court taking this case and ruling in favor of the parents will ensure that educational choice programs can provide a wide range of school options—whether public or private, religious or non-religious—that enable parents to find a school that best meets their children’s individual needs,” said Institute for Justice President and General Counsel Scott Bullock. “Now more than ever, it’s time to expand educational opportunities for all families.”

#  #  #

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

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

Tennessee Supreme Court to Hear Parents’ Appeal Defending School Choice Program

Monday afternoon, the Tennessee Supreme Court announced that it will hear the appeal from Natu Bah and Builguissa Diallo, two parents who partnered with the Institute for Justice (IJ) to defend the Tennessee Education Savings Account Pilot Program from a constitutional challenge levied against it in February. Bah and Diallo planned to use the ESAs to send their children to better-performing schools.

“Parents will vindicate their right to choose the best education for their children at the Tennessee Supreme Court,” said IJ Senior Attorney Arif Panju. “The Home Rule Amendment does not allow local governments to extinguish Tennesseans’ educational options.”

In the September ruling against the program, the appeals court ruled that the pilot program was unconstitutional under the Home Rule Amendment of the Tennessee Constitution. This provision prohibits the legislature from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.” But the program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. The law simply empowers low- and middle-income families with children assigned to some of Tennessee’s worst-performing schools, and does so by allowing them to receive their education benefit in an ESA so that they can afford private educational options that meet their needs. The parents filing today’s appeal are asking the Tennessee Supreme Court to reverse the appellate court and restore Tennessee’s Education Savings Account Pilot Program.

The ESA program was passed in 2019 by the Tennessee Legislature. The program can offer a lifeline to families that would like to leave underperforming school districts that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying low- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

Oral argument will be scheduled following the completion of briefing.

Oklahoma Eyebrow Threaders File Lawsuit Against Irrational Licensing Requirement

Oklahoma City, Okla.—Should Oklahoma entrepreneurs be forced to spend thousands of dollars and at least 600 hours on esthetician coursework that does not even teach their trade?

That question has led two Oklahoma eyebrow threading business owners, Shazia Ittiq and Seema Panjwani, to join forces with the Institute for Justice (IJ) to challenge the constitutionality of the licensing requirement that the Oklahoma Board of Cosmetology imposes on eyebrow threaders. The Board requires all threaders to hold at least an esthetician license. And last week, the Board ordered Shazia to shut down her business immediately for employing threaders without an esthetician license. She is filing for a temporary restraining order to block enforcement of the unconstitutional licensing requirement as litigation proceeds.

The lawsuit, filed late yesterday, challenges this licensing requirement as violating the Oklahoma Constitution’s due process clause and its inherent rights clause. Like Oklahoma, Texas previously mandated that eyebrow threaders hold at least an esthetics license. Then, following a lawsuit from eight eyebrow threaders who partnered with IJ, the Texas Supreme Court in 2015 reaffirmed its state constitution’s protections for Texans to work in the occupation of their choice without unreasonable government interference. The Oklahoma Constitution offers the same kind of protections to Oklahomans.

“Threaders don’t need a license to do their jobs across the border in Texas. And they shouldn’t need one in Oklahoma, either,” said IJ Attorney Marie Miller. “Threaders in Oklahoma have been providing high-quality, safe services to customers for years. They shouldn’t be put out of work because the Cosmetology Board demands they learn and prove competency in unrelated skills.”

Eyebrow threading is an ancient grooming technique common in South Asian and Middle Eastern countries, and has been passed down for generations. The threader makes a loop in a strand of cotton thread by twisting the strand around itself multiple times, then slides and traps unwanted hairs in the loop and lifts them from their follicles. The technique is often learned at a young age from family or friends, and it uses no chemicals, heat or sharp objects.

The experienced threaders in Oklahoma have become highly skilled in the technique, and requiring them to spend in some cases over $10,000 to obtain a license for services they will never provide, all to obtain permission to do the job they have already mastered, makes no sense. And because Oklahoma’s esthetician coursework does not teach threading and the esthetician exams do not test threading, licensed estheticians—who are permitted to thread commercially—do not necessarily know how to thread. As a result, threading salon owners like Shazia and Seema cannot employ enough licensed threaders to sustain a successful business. That, in turn, limits consumers’ access to eyebrow threading services.

“Threaders do not need to learn unrelated skills to become threaders. They have been doing it to each other for generations,” said Shazia Ittiq, owner of Brows & More, a threading salon in Oklahoma City. “Without this license requirement, I can serve more clients, and women can support their families without going off to school for a skill they know.”

The threading salon owners, with IJ, contend that applying the esthetics licensing requirements to threaders violates the Oklahoma Constitution’s due process clause because the regulations force threaders to complete onerous licensing requirements that bear no relation to their jobs, and they treat threaders the same as people who provide very different services. The state constitution’s inherent rights clause reinforces this right to earn an honest living free from unreasonable government regulation, because it recognizes that Oklahomans have an inherent right to the “enjoyment of the gains of their own industry.”

“Forcing eyebrow threaders to undergo fifteen weeks of irrelevant training is not just wrong: it violates the Oklahoma Constitution,” said IJ Senior Attorney Wesley Hottot. “The Oklahoma licensing requirements don’t protect the public; they just put skilled threaders out of a job.”

In addition to its 2015 victory on behalf of eyebrow threaders in Texas, IJ has also sued Arizona and Louisiana over their licensing requirements for eyebrow threaders, leading those states to allow threaders to operate without a license.

The threaders have applied for a temporary restraining order, and a hearing is expected in the next two weeks.

MEDIA ADVISORY

EVENT:

REMINDER OF THIS COURT ARGUMENT RESCHEDULED FROM JANUARY
Indiana Supreme Court Hears Timbs Excessive Fines Argument, for Third Time,
After U.S. Supreme Court Unanimously Overturns Earlier Ruling
& Trial Court Awards Timbs His Vehicle

DATE/TIME:
Thursday, February 4, 2021 / 9 a.m. EST

PLACE:
Indiana Supreme Court
Livestreamed on the court’s website:
https://mycourts.in.gov/arguments/default.aspx?court=sup

The livestream, which was originally scheduled for January, will begin two minutes prior to the argument. If you are unable to watch live, you can still view the argument at this link two hours after its conclusion.

PARTICIPANT:
Sam Gedge, Attorney, Institute for Justice

CONTACT:
John Kramer, IJ VP for Communications, (703) 682-9323 ext. 205

SUMMARY:
Will the third time before the Indiana Supreme Court finally be the charm for Tyson Timbs to resolve once and for all the legal case over the government’s seizure of his vehicle? Indiana’s lower courts have repeatedly ruled that taking Timbs’ vehicle for a low-level drug offense violates the Eighth Amendment’s Excessive Fines Clause. In 2019, the case also prompted the U.S. Supreme Court to rule definitively that the Excessive Fines Clause applies not just to the federal government, but to the states as well. Since then, the trial court in Grant County, Indiana, has once again ruled that the state’s forfeiture campaign against Timbs amounts to an unconstitutional excessive fine. The State of Indiana, once again, has appealed.

At the hearing at 9 a.m. on Thursday, February 4, 2021, Sam Gedge, an attorney for the Institute for Justice, which represents Timbs, will argue that the lower court got it right. Timbs’ misconduct was relatively minor: while struggling with addiction, he was induced by undercover officers to sell drugs—to them, and to them alone. And since pleading guilty in 2015, Timbs has turned his life around, holding down jobs, participating in treatment and caring for a sick aunt. But throughout, the government has made his recovery immeasurably harder by trying to strip him of his car. Following last year’s trial-court ruling, the state finally returned Tyson’s vehicle to him. But the case isn’t over; the state has again appealed, reprising an extreme argument that it debuted before the U.S. Supreme Court in 2018: the government should be allowed to impose any forfeiture—no matter how punitive—for any crime, no matter how minor.

Before the trial court, the Institute for Justice successfully argued that the forfeiture imposed on Timbs violates the Excessive Fines Clause. It will be defending that ruling on appeal.

Attorney Gedge said, “Incredibly, the State of Indiana has devoted nearly a decade to trying to confiscate a vehicle from a low-income recovering addict. No one should have to spend eight years fighting the government just to get back their car.”

Watch the argument live at:
https://mycourts.in.gov/arguments/default.aspx?court=sup

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Veteran Beaten by Police in Unprovoked Assault at VA Hospital Appeals Case to U.S. Supreme Court

“It was three against one, and they had guns. I knew better than to resist.”

5th Circuit Rules Federal Officers Can’t Be Sued
Even If Qualified Immunity Doesn’t Apply to Them

Arlington, Virginia—José Oliva survived the bloodiest year in Vietnam, but he most feared for his life when he was brutally beaten in an unprovoked attack by federal officers in a Veterans Affairs hospital in his hometown of El Paso, Texas that left him with several injuries, two of which required surgery. On January 29, 2021, the Institute for Justice filed an appeal to the U.S. Supreme Court asking it to reverse the 5th Circuit decision that ruled federal officers—such as those in a VA hospital—may act with impunity and not be held accountable for their actions, no matter how unconstitutional.

“I feared for my life,” José said. “I survived the bloodiest year in Vietnam, and here I was fearing for my life as these officers beat and choked me in a VA hospital in my own hometown. It was three against one, and they had guns. I knew better than to resist.”

José is a native of El Paso, Texas and a Vietnam War vet, who served nearly three decades in law enforcement, and advocated on behalf of veterans in his hometown and nationwide.

In February 2016, federal police working as security at an El Paso VA hospital assaulted José as he was entering the hospital for a dentist appointment. As a result of the assault, José suffered an injured shoulder and neck, each of which required surgery, along with a ruptured ear drum. The officers charged José with disorderly conduct—a charge that was dismissed.

When José sued the officers, a predictable thing happened. The officers invoked qualified immunity—a controversial doctrine that the Supreme Court invented in 1982 to protect government workers from being sued for unconstitutional conduct. The district court denied the officers qualified immunity. The 5th Circuit, however, agreed with the officers and reversed the district court, holding that even if qualified immunity were not available, José still can’t sue because he was assaulted by federal—and not state—officers.

“This decision is wrong,” said IJ Attorney Anya Bidwell. “Federal officials are not above the Constitution. The 5th Circuit’s decision disregards Supreme Court precedent and departs from the consensus of other courts of appeals that have considered this same issue. As a result, Texas, Louisiana and Mississippi are now constitution-free zones, as far as federal police are concerned. And there are more than 17,000 federal police who work within the jurisdiction of the 5th Circuit.”

The Institute for Justice is asking the Supreme Court to reverse the 5th Circuit’s decision and let the case proceed to trial.

“If the Fourth Amendment doesn’t protect a 70-year-old veteran beaten by federal police inside a veterans’ hospital for no reason, it doesn’t protect anyone,” said Patrick Jaicomo, an attorney with the Institute for Justice, which represents José.

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

Jaicomo said, “The Supreme Court will have to decide which court was right in José Oliva’s case: the trial court that ruled the officers should have known they couldn’t beat and choke a veteran in an unprovoked attack, or the 5th Circuit, that ruled that it didn’t matter and the officers cannot be held to account for their actions, thus fully immunizing the federal officers. For the sake of every veteran who goes into a VA facility, José hopes the Supreme Court accepts his case and finds in his favor.”

José’s petition further asks the Court to call for the view of the U.S. Solicitor General. With the new administration in office, it will be important for the Court, as well as the rest of the nation, to know where the chief appellate lawyer for the federal government stands on the issue of accountability for federal police.

As a former law enforcement officer, José’s goal in bringing this lawsuit is to ensure that other law enforcement officers respect the Constitution. When rogue law enforcement agents are allowed to violate the Constitution without consequence, the reputations of good law enforcement officers suffer.

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

South Padre Island Continues to Enforce Food Truck Laws Declared Unconstitutional by Texas Court

Brownsville, Tex.—Just six weeks ago, Judge Arturo Cisneros Nelson struck down South Padre Island’s anti-competitive food truck permit cap and restaurant-permission scheme. The district court ruled that the city violated the Texas Constitution when it forced food truck owners to get permission from local restaurant owners before being eligible for a food truck permit, and by making it illegal for more than 12 food trucks to open for business on the island.

Astonishingly, South Padre Island’s city government continues to enforce both unconstitutional restrictions despite the ruling. Despite its public statements, the city has not appealed the court’s ruling declaring the permit cap and restaurant-permission scheme unconstitutional; it appealed only a separate ruling rejecting its meritless argument that Texas cities are immune from the Texas Constitution. Nor has the city asked any Texas court to suspend Judge Nelson’s judgment. Today, the Institute for Justice (IJ), which represents food truck owners, filed a motion in the Thirteenth Court of Appeals (Corpus Christi–Edinburg, Texas), asking the court to prohibit the city of South Padre Island from enforcing the two restrictions that Judge Nelson declared unconstitutional and permanently enjoined.

“The city’s disregard of its own citizen’s constitutional rights and its lack of transparency should concern everyone,” said Arif Panju, Managing Attorney of IJ’s Texas Office. “It is astonishing that we had to ask the court of appeals to order what the district court already made clear: the city’s food truck permit cap and restaurant-permission scheme are unconstitutional and therefore unenforceable. By continuing to enforce both restrictions, the city and its officials are violating a court order while flouting the authority of Texas courts and the Texas Constitution.”

In February 2019, IJ challenged the city of South Padre Island’s anti-competitive restrictions on behalf of food truck owner SurfVive, a local nonprofit spearheaded by Erica Lerma, and the Brownsville-based Chile de Árbol food truck operated by brothers Anubis and Adonai Avalos. Both food trucks were forced to the sidelines and could not operate under the city’s permitting scheme. They won in the district court after proving that the two restrictions do not protect health and safety, but rather only the profits of local restaurant owners who helped write the ordinance.

Victory for Charlottesville Writers: City’s Tax on Freelance Authors Declared Unconstitutional

Charlottesville, Va.—Today, Judge Claude Worrell of the 16th Judicial Circuit of Virginia declared Charlottesville’s business license tax, as selectively applied to freelance authors, unconstitutional. For the past few years, Charlottesville and surrounding Albemarle County assessed freelance authors a business license tax, even if they did not run a business or a storefront of any kind. The city and county business codes cover dozens of occupations but don’t mention writers, who therefore had no notice that they would be taxed. What’s more, other kinds of media like newspapers and magazines are specifically exempted. This selective taxation violates the First and Fourteenth Amendments to the U.S. Constitution. In response, novelists Corban Addison and John Hart partnered with the Institute for Justice (IJ) to challenge Charlottesville and Albemarle County’s respective taxes. Last month, Judge Worrell rejected Addison’s First Amendment claim at a hearing but ruled today on the Fourteenth Amendment claim. 

“Charlottesville’s business-license code allowed tax collectors to target anyone in the name of raising revenue, whether they were actually covered by the tax or not. Today’s decision means that when Charlottesville taxes its residents, it must do so constitutionally,” IJ Attorney Renée Flaherty said.  

Business license taxes are supposed to defray the cost of infrastructure that businesses and their customers use. But while writers like Corban and John put no burden on city or county infrastructure, the city and county saw them as an untapped source of revenue. Charlottesville argued that Addison, even though all he does is sit in a room and write stories, is running a full-fledged business. 

Judge Worrell wrote that “The City has argued that [Mr. Addison] provides a service or business to his publisher. The Court disagrees. The Court finds the argument that [Mr. Addison] provides a service to this publisher to be forced, strained, or contrary to reason.” 

“Today’s decision mandates that Charlottesville’s creative class will no longer be subjected to an arbitrary, unconstitutional tax,” said IJ Attorney Keith Neely. Taxes must be certain and applied evenhandedly.” 

“The court’s ruling today affirms the instinct I had when I first read the City’s business license code: Authors are nowhere to be found in it,” Corban Addison said. “I have always paid my lawful taxes. But to be taxed under an ambiguous catch-all provision in the City Code at the sole behest of the Commissioner of the Revenue is manifestly unfair. I am gratified that the court agrees. 

While Corban’s lawsuit against Charlottesville’s levying of business license taxes against freelance authors is over, John’s case against the county is still active. However, with today’s decision, it is only a matter of time before the county’s tax is declared unconstitutional as well. 

 

 

Massachusetts Exempts Hair Braiders from Occupational Licensing

Massachusetts became the to eliminate licensing for natural hair braiders, thanks to a bonding bill signed late Thursday by Gov. Charlie Baker. With a rich heritage spanning millennia, natural hair braiding is a beauty practice common in many African American and African immigrant communities. Unlike cosmetologists, braiders do not cut hair or use any harsh chemicals or dyes in their work.

Yet Massachusetts was one of just seven states nationwide (and the only state in New England) that forced natural hair braiders to become licensed cosmetologists or hairstylists before they could work legally. In Massachusetts, a hairdresser license takes at least 1,000 hours of classes–an enormous burden, especially since many hairdressing schools don’t teach African-style braiding techniques. But now with the governor’s signature, braiding hair is finally exempt from the Bay State’s hairdressing regulations.

“The government has no business licensing something as safe and common as braiding hair. This is a great win for entrepreneurship, economic liberty, and just plain common sense,” said IJ Legislative Counsel Jessica Gandy, who lobbied on behalf of the braiders.  “Thanks to the advocacy of Sens. Nick Collins, Eric Lesser, and Ryan Fattman braiders across Massachusetts are no longer tangled in unnecessary red tape.”

Since its founding, the Institute for Justice has filed over a dozen lawsuits on behalf of natural hair braiders and is currently challenging a specialty braiding licensing in Louisiana. The Institute for Justice has also published a study, Barriers to Braiding: How Job-Killing Licensing Laws Tangle Natural Hair Care in Needless Red Tape, which found that braiders received very few complaints and that strict licensing laws stifle economic opportunity. A separate IJ study found that Massachusetts had the “10th most burdensome licensing laws” in the country, with the average license requiring 513 days of coursework and experience.

“I am thankful to the Institute for Justice and our legislators for recognizing the importance of this issue. We are now able to hire more braiders and continue to support our families and our communities,” said Coumba Diagana, who owns a braiding shop in Boston and organized in favor of the bill.

DC Day Care Providers Announce Plans to Appeal College Degree Requirement to DC Circuit Court

Late Wednesday, the United States District Court for the District of Columbia dismissed a lawsuit filed by two day care providers and a D.C. parent alongside the Institute for Justice (IJ) challenging a requirement by Washington, D.C. regulators in the Office of the State Superintendent of Education (OSSE) that day care providers obtain a college degree or look for another job.

When OSSE enacted the regulations in 2016, it did not cite any specific research to support its college requirement, but an OSSE official said the regulations were inspired by a 2015 report by the National Academies. That report actually stated that there is no empirical support for requiring day care providers to get college degrees and that there are many negative consequences in doing so. For example, the requirement threatens to put many lower-income women, often immigrants, out of work unless they upend their lives to obtain a college degree that adds nothing to their ability to care for children.

The district court opinion did not say that the degree requirement makes sense. Instead, the court concluded only that the plaintiffs failed to “establish that there is not ‘any reasonable conceivable state of facts that could’” support the degree requirement, further noting that the court “offers no evaluation of the real burdens it imposes on workers that may lose their jobs or on parents who are likely to pay more for childcare as a result.” But requiring college training when it’s been shown not to provide the skills those workers need (and in facts harms them) establishes the lack of any justification for the degree requirement.

“These regulations only serve to drive up the cost of child care in the District, when it’s already the most expensive in the country,” said IJ Attorney Renée Flaherty. “The degree requirement is not just a bad idea. The District’s arbitrary and irrational requirement violates day care providers’ right to earn an honest living guaranteed by the 5th Amendment to the U.S. Constitution. We will be appealing the district court’s decision to the U.S. Court of Appeals for the D.C. Circuit.”

Landmark D.C. Law Removes Occupational Licensing Barriers for Ex-Offenders

Washington, D.C. Mayor Muriel Bowser signed a bill that will make it much easier for people with criminal records to become licensed in their chosen field. Previously, the District had below-average protections for ex-offenders seeking licenses to work, receiving a C- in a recent report by the Institute for Justice, Barred from Working. But thanks to the bill signed this week, that grade will soar to an A-, with the District’s laws the best in the nation, second only to Indiana.

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Activism Policy Manager Chad Reese, who submitted testimony in favor of the bill. “This bill will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Americans looking for a fresh start.”

After adopting many of the suggestions IJ offered in its testimony, the Removing Barriers to Occupational Licensing for Returning Citizens Amendment Act will:

  • Block boards from denying licenses based on criminal convictions, unless there is “clear and convincing evidence” that the offenses are “directly related” to the license sought. This uniform standard will replace a byzantine patchwork of rules that varied dramatically based on the type of the license sought;
  • Prevent boards from using arrests that didn’t result in a conviction as well as sealed, expunged, or vacated records;
  • Repeal vague and arbitrary “good character” requirements found in multiple licenses (including for accountants, dental hygienists, and interior designers);
  • Enact new reporting requirements to track the number of applicants and licenses issued and denied to people with criminal records.

The bill will also create a petition process so that ex-offenders can see if their criminal record would be disqualifying, before they invest in any potentially expensive or time-consuming training or coursework. By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility and prisoner reentry. For instance, according to a separate report by the Institute for Justice, the average license for lower- and middle-income occupations in the District requires paying $400 in fees, finishing 261 days of training and experience, and passing one exam.

Washington, D.C. now joins a growing, nationwide movement. Since 2015, 34 states have removed licensing barriers for ex-offenders. This year alone, governors in Michigan and Ohio have already signed critical collateral-consequences reforms.

Ohio Governor Signs New Law That Lets Ex-Offenders Obtain Licenses to Work

Gov. Mike DeWine signed legislation Saturday (HB 263) that will make it much easier for Ohioans with criminal records to become licensed in their chosen field. Previously, the Buckeye State had scant protections for ex-offenders seeking licenses to work, receiving a D- in a recent report by the Institute for Justice, Barred from Working. Now that grade will soar to an A-.

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Legislative Analyst and Barred from Working author Nick Sibilla, who submitted testimony in favor of the bill. “This bill will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Americans looking for a fresh start.”

Apart from a small number of health care facility credentials, HB 263 will apply to more than 300 different licenses across 37 different agencies, boards, commissions, and departments.  Among its many reforms, the new law will:

  • Block boards from denying licenses based on criminal convictions, unless the board can prove that the offenses are “directly related” to the license sought;
  • Prevent boards from using criminal charges that didn’t result in a conviction as well as convictions older than five years, unless the latter involves sexual, violent, or fiduciary crimes;
  • Ban boards from using vague and arbitrary standards like “moral turpitude” or lack of “good character” to disqualify applicants; and
  • Enact new reporting requirements to track the number of applicants and licenses issued and denied to people with criminal records.

HB 263 builds off of previous reforms. In 2019, Ohio created a petition process that lets ex-offenders know if their criminal record would be disqualifying, before they invest in any potentially expensive or time-consuming training or coursework. This reform has now been adopted by 16 other states and was recently endorsed by the Trump Administration.

By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility. Those burdens add up to: According to the Institute for Justice, occupational licensing restrictions cost the state more than $6 billion each year, resulting in nearly 68,000 fewer jobs.

Supreme Court Declines to Review Navigable Waters Case

Arlington, Virginia—Today, the U.S. Supreme Court denied review in the decade-long lawsuit brought by brothers/entrepreneurs Jim and Cliff Courtney, who sought to provide boat service on Lake Chelan in Washington state.  The denial lets stand a 2020 decision of the 9th U.S. Circuit Court of Appeals dismissing the Courtneys’ lawsuit.

Since 1997, the Courtneys have tried to provide transportation—even just for customers of their family’s own businesses—along the 55-mile-long lake, a federally designated navigable water of the United States.  After years of being consistently thwarted by an anticompetitive state licensing law known as a “public convenience and necessity” (“PCN”) requirement, they teamed up with the Institute for Justice (“IJ”) to challenge the law.

The lawsuit alleged that the PCN requirement abridged the Courtneys’ “right to use the navigable waters of the United States,” which the U.S. Supreme Court, in the notorious Slaughter-House Cases of 1873, expressly recognized as protected by the Privileges or Immunities Clause of the Fourteenth Amendment.  In an opinion that otherwise largely gutted the clause, the Court in Slaughter-House recognized a handful of rights of national citizenship that the clause does, in fact protect, and among them was the right to use the navigable waters of the United States.

Slaughter-House was a terrible opinion, but it was correct in recognizing that inherent in the citizenship of every American is the right to use the nation’s navigable waters,” said Michael Bindas, IJ Senior Attorney and lead counsel for the Courtneys.  “Unfortunately, the Supreme Court refused to enforce that right today.  Nevertheless, the Institute for Justice remains steadfastly committed to revitalizing the Privileges or Immunities Clause—to restoring it to its rightful place as the cornerstone of the Fourteenth Amendment and the primary constitutional bulwark of economic liberty.”

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.  More information on the case is available at:  https://ij.org/case/lake-chelan-ferries/.]

Michigan Reforms Licensing Laws to Help People with Criminal Records Find Work

Michigan Gov. Gretchen Whitmer signed a package of bills Monday that will make it much easier for people with criminal records to become licensed in their chosen field. By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility and prisoner reentry. For instance, the average license for lower- and middle-income occupations in Michigan requires paying $242 in fees, finishing 255 days of training and experience, and passing two exams.

The bill package (HB 4488-4492) targets Michigan’s requirement that applicants must have “good moral character” in order to obtain occupational licenses–an often vague and arbitrary standard. Under the reform, licensing boards will only be able to disqualify applicants for lacking good moral character if they have been convicted of a felony that has a “direct and specific relationship” to the license sought or poses a “demonstrable risk to public safety.” Boards will also be required to consider an applicant’s evidence of rehabilitation, their employment history, any testimonials on their behalf, as well as the time elapsed since the crime was committed.

Previously, Michigan had mediocre protections for ex-offenders seeking licenses to work, receiving a C in a recent report by the Institute for Justice, Barred from Working. But thanks to the newly signed bills, that grade will rise to a B-, placing Michigan’s laws among the top 10 in the nation. (Neighboring Indiana ranks as the best overall, earning the report’s only A grade.) With this reform, Michigan joins 33 other states that have eased licensing barriers for ex-offenders since 2015.

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Legislative Analyst Nick Sibilla, who authored the report. “These bills will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Michiganders looking for a fresh start.”

Texas Doctor to Appeal Ruling Upholding Protectionist Ban on Doctor Dispensing

Austin, Texas—Yesterday, the Travis County District Court upheld Texas’s ban on doctor dispensing. Forty-four states and the District of Columbia allow doctors to dispense medicine to patients in their offices and to recover their costs. But in Texas, doctors could lose their licenses for doing so. The court’s ruling leaves that ban in place. The Institute for Justice (IJ) will appeal the decision.

The lawsuit was filed in 2019 by Dr. Michael Garrett, a family physician in Austin who wants to dispense basic drugs like antibiotics and allergy medicine. He is not interested in dispensing controlled substances or dispensing for profit. Rather, he simply wants to offer patients more convenient access to routine medications.

“This decision is disappointing for doctors and patients throughout Texas,” said Dr. Garrett. “As a licensed physician, I’m more than qualified to dispense patients the medicine I prescribe. This law just makes it harder for me to do my job, which can’t be constitutional. I’m ready for the next step in this fight.”

Texas’s ban isn’t about protecting patients. Indeed, the vast majority of states, the American Medical Association and the Texas Medical Association embrace the practice of doctor dispensing, and research confirms that doctors and pharmacies are equally safe when dispensing. Instead, the law simply protects pharmacies from competition.

Because the Texas Constitution requires that laws like the dispensing ban must meaningfully benefit the public, rather than favored market groups, Dr. Garrett’s lawsuit seeks to have the ban declared unconstitutional. With help from IJ, Dr. Garrett will appeal the decision.

“Government power should be used to benefit the public. A law that prevents doctors from helping their patients just to protect pharmacies’ bottom lines violates that basic principle,” said IJ Attorney Josh Windham, lead counsel on the case. “We expect the court to recognize that on appeal.”

Minnesota Supreme Court Eases CLE Rules

The Minnesota Supreme Court on Tuesday granted a petition that will ease regulatory burdens on lawyers. Every three years, attorneys in Minnesota need to finish 45 credit hours of continuing legal education (CLE) courses to maintain their licenses. Even though on-demand CLEs are more convenient, relevant, affordable and numerous than in-person CLEs and live-webcast CLEs, the justices capped on-demand CLE courses at 15 hours.

Although the petition was first filed by the Institute for Justice and lawyers from four other firms in August 2019, as the Minnesota Supreme Court noted, “access to legal programming and legal services has changed substantially,” with the cap suspended amidst the Covid-19 pandemic. Under Tuesday’s order, the CLE cap will be doubled to 30 credit hours starting with lawyers (CLE Cycle 1) whose reporting period starts on July 1, 2021, and will be fully scrapped with those same lawyers starting on July 1, in 2024.

Recognizing the technological advancements, the court saw “no reason to expect a decline in the state of Minnesota CLE’s system simply because 100 percent of credit hours can be secured in one format–on demand programming-rather than another format, i.e., live programming.”

“The court’s decision eventually will allow all Minnesota attorneys, particularly those working in out-state Minnesota, more flexibility in how they earn CLE credits,” said Institute for Justice Attorney Jaimie Cavanaugh, who argued for the petition last January. “Over the last nine months, most of the legal profession has been forced to meet the demands on their clients by working remotely. It’s fitting that attorneys finally will be allowed to meet all their CLE credits online and on-demand too.”

Final Victory for Pleasant Ridge Residents

CHARLESTOWN, Ind.—Christmas came early this year for residents of the Pleasant Ridge neighborhood in Charlestown, Indiana, after Judge Jason Mount signed an order barring the city from using its property maintenance code to force people out of their homes. The order formalizes a settlement agreement between the city and neighborhood and—after nearly four years—brings the neighborhood’s lawsuit against the city to a close.

As part of the settlement and order, the city has agreed to three things: First, it will give homeowners a reasonable opportunity to fix their homes before the city levies any fines. Second, it will not target the Pleasant Ridge neighborhood with code enforcement more than any other neighborhood in Charlestown. Last, it will not penalize anyone if they demand a warrant before the city performs an inspection of rental property. The order comes after Charlestown’s previous mayor Bob Hall, who lost his 2019 reelection bid, led an effort that imposed millions of dollars in daily accruing fines to force Pleasant Ridge property owners to sell to a private developer for just $10,000 per home.

“Four years ago, when things seemed darkest for the homeowners, IJ client Ellen Keith vowed that when the fight was over, she and her husband David would still be in their home and she was right,” said Institute for Justice Senior Attorney Anthony Sanders. “With this settlement and order, the city has agreed to never again use its power to levy fines to force residents out of their homes.”

The saga in Charlestown started in 2014 when then-Mayor Bob Hall decided that the working-class neighborhood of Pleasant Ridge had to go. That initial plan was thwarted when the city council refused to go along. After a November 2015 election, which Bob Hall won along with a slate of pro-redevelopment council members, the plan to eradicate Pleasant Ridge commenced. Under his direction, the Charlestown Redevelopment Commission came up with a scheme to replace the affordable houses of Pleasant Ridge with a planned “village-style” neighborhood, consisting of upscale housing and retail. The plans intended to replace all of the WWII-era Pleasant Ridge homes—whether owner-occupied or rentals—with new homes that the current residents couldn’t hope to afford. Working behind the scenes with a private developer, the city weaponized its property code and targeted owners for immediate, daily fines for rental properties.

The city initially focused on landlords and their rental units, including fines for minor or trivial property code violations—like a torn screen, chipped paint or a downed tree limb. The citations stated that the owner owed $50 per violation, per day, and multiple citations were issued per property, which meant that a single home accumulated hundreds of dollars in fines per day. Within weeks, Pleasant Ridge property owners had racked up millions of dollars in fines. Then the city made an offer that many property owners, faced with crippling fines, could not afford to refuse. If the owners agreed to sell their homes to the private developer for $10,000, the city would waive the fines.

The plan was as diabolical as it was unconstitutional. And it wasn’t limited to landlords. Various city planning documents, internal correspondence, text messages and a city council resolution made clear that homeowners were targeted as well. There were also internal discussions about using eminent domain to force homeowners out. The city and its developer envisioned an entirely new neighborhood with new and wealthier residents.

Pleasant Ridge residents partnered with the Institute for Justice and sued in January 2017. In December 2018, after a hearing in which former Mayor Hall testified that he would not promise to let homeowners keep their homes, Judge Mount issued a preliminary injunction against the city. The city appealed and lost. Those victories for the homeowners prevented the city from issuing any new fines, but didn’t completely derail the mayor’s plan. By then, hundreds of homes had been sold to the developer and, after months of sitting vacant, they were eventually razed. Finally, in 2019 the mayor lost reelection to Treva Hodges—who had campaigned on saving Pleasant Ridge—and settlement discussions began.

“No one should have to go through what we’ve gone through,” said Pleasant Ridge resident Tina Barnes, who was a plaintiff in the case. “What the city did to our neighborhood wasn’t just immoral, it was unconstitutional. Thankfully, with the help of IJ, we were able to stop the city’s illegal land grab. Now, with that in our past, it is time to focus on the future and rebuild our community.”

Supreme Court Appeal & Amicus Briefs Make Case for the Right of All Americans To Use the Nation’s Navigable Waters
  • Courtney brothers have tried for 23 years to transport passengers to their family’s businesses, only to be blocked by government every step of the way.
  • Infamous Slaughter-House Cases stripped Americans of most economic liberties, but explicitly protected right to use waters. If precedent means anything, the Courtney brothers should win.

Arlington, Virginia—Imagine Jim and Cliff Courtney’s frustration in spending 23 years trying to travel 55 miles by boat, but never reaching their destination.

The brothers from Washington State petitioned the U.S. Supreme Court in September to hear their challenge to a state law that has barred them from pursuing a livelihood on Washington’s 55-mile-long Lake Chelan.  On Friday, they filed their final brief with the Court before the justices are scheduled to hold a January 8, 2021 conference to decide whether to take up the appeal. Earlier this term, the Courtneys received significant support, as some of the nation’s leading historians and legal scholars, as well as a national nonprofit committed to the ideas, principles and policies of a free and open society, submitted amicus curiae (or “friend of the court”) briefs urging the Court to review the case.

Since 1997, the Courtneys have been fighting for their right to use Lake Chelan—a federally designated navigable water of the United States—in pursuit of a living. That right can be traced all the way back to Magna Carta and is protected by the Privileges or Immunities Clause of the U.S. Constitution’s 14th Amendment. In the landmark Slaughter-House Cases—decided in 1873, just five years after the 14th Amendment was ratified—the U.S. Supreme Court held that the “right to use the navigable waters of the United States” is one of the “privileges or immunities,” or rights, of national citizenship that no state may abridge. For the last 23 years, however, the state of Washington has used a century-old licensing of public ferries to prevent the Courtneys from even shuttling customers of their family’s own businesses at the far end of the lake.

The Courtneys challenged Washington’s law, but in April of this year, following nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. According to the 9th Circuit, the right to use the navigable waters of the United States is essentially meaningless. The court severely curtailed the scope of the right, holding that it protects only uses that “involve interstate or foreign commerce”—not “intrastate boat transportation” like that which the Courtneys wish to provide. The right, in other words, is a mere redundancy of the right to engage in interstate or foreign commerce.

And the 9th Circuit did not stop there. Not content with gutting this one particular right protected by the Privileges or Immunities Clause, it effectively gutted the clause itself. To support its holding that “intrastate” uses of the navigable waters are not protected, the court held that the clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.”

“The Courtneys’ petition raises fundamental questions regarding the constitutional provision that was supposed to be the cornerstone of the 14th Amendment, and it concerns a right that the U.S. Supreme Court has held every American possesses by virtue of their national citizenship,” said Michael Bindas, IJ senior attorney and counsel for the Courtneys.  “The 9th Circuit’s decision, if allowed to stand, will reduce that right to meaninglessness, and the Supreme Court should not let that happen.”

In three briefs, a group of historians, a coalition of law professors, and Americans for Prosperity Foundation highlighted the errors of the 9th Circuit’s decision and urged the Supreme Court to review it.

  • A group of eminent historians whose research and scholarly interests focus on African-American history, particularly in the antebellum South, submitted a brief providing historical context to inform the original understanding of what it meant to “use” the “navigable waters of the United States” around the time of the Fourteenth Amendment’s ratification. The historians—Jeffrey Bolster (University of New Hampshire, emeritus), Melvin Patrick Ely (College of William & Mary), and Michael Schoeppner (University of Maine, Farmington)—document the importance of the navigable waters to free blacks and slaves in the period leading up to the Civil War, as well as the widespread efforts by southern governments to restrict their use of those waters in both interstate and intrastate pursuits. The historical evidence, the brief notes, “undercuts the Ninth Circuit’s holding that the Privileges or Immunities Clause protects only against infringements on interstate uses of the navigable waters.”
  • A group of distinguished law professors—Richard Aynes (University of Akron School of Law, emeritus), James Ely (Vanderbilt University Law School, emeritus), Richard Epstein (New York University School of Law), Christopher Green (University of Mississippi School of Law), Michael Lawrence (Michigan State University College of Law), and Rebecca Zietlow (University of Toledo College of Law)—submitted a brief making clear that when the Privileges or Immunities Clause declares that “No State . . . shall abridge the privileges or immunities of citizens of the United States,” it actually means “No State,” including one’s own. The 9th Circuit’s contrary conclusion—which, the brief demonstrates, flies in the face of U.S. Supreme Court precedent, history, and the unanimous consensus of legal scholars—“has cudgeled the Privileges or Immunities Clause of the Fourteenth Amendment to within an inch of its life.”
  • Americans for Prosperity Foundation submitted a brief tracing the historical origins of the right to use the navigable waters, examining the basis for its protection as a right of national, rather than state, citizenship, and dispelling the 9th Circuit’s view that the Commerce Clause constrains the scope of the right. The brief urges the Supreme Court to review the lower court’s decision in order to “protect the right of the people to use the nations’ navigable waterways and unwind the conflation of limits on congressional power and protection of individual rights wrought by the Ninth Circuit.”

“The Slaughter-House Cases set a horrible precedent, but one thing it got right was that the Privileges or Immunities Clause protects every American’s right to use the navigable waters of the United States. Yet, now, the 9th Circuit has taken that away, too,” said Scott Bullock, president and general counsel for the Institute for Justice. “We urge the Court to take up the Courtneys’ case and restore this important right to all Americans.”

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.  More information on the case is available at:  https://ij.org/case/lake-chelan-ferries/.]

Federal Court Finds Doraville’s Addiction to Fines & Fees Constitutional

ATLANTA, Ga.—Yesterday a federal judge ruled against four Georgia residents who had sued the city of Doraville over its practice of heavily relying on fines and fees to balance its budget. The city fined them—two homeowners and two drivers—over extremely minor violations, including a cracked driveway and improperly stacked wood, as part of its policy of using fines and fees to make up anywhere between 34% and 17% of its budget. While ruling for the city, the judge nevertheless found the high percentage concerning, and noted that Doraville was included in a recent report by the U.S. Commission on Civil Rights as the sixth worst city nationwide in reliance on fines and fees—higher even than Ferguson, Missouri.

The plaintiffs, represented by the Institute for Justice (IJ), argued that the city’s reliance on speeding tickets, minor code enforcement violations and unnecessary fees tacked onto court sentences, violated their due process rights. This was because, as they argued, the tickets were issued not to protect public health and safety, but to raise revenue. However, federal District Judge Richard Story ruled for Doraville because of what seemed to be a lack of pressure on the city’s municipal judge, and its prosecutor and police, from the city council.

“The role of the police and municipal courts should be to serve and protect, not ticket to collect,” said IJ Attorney Joshua House. “There is substantial evidence of a connection between the council’s desire to raise revenue and pressure on the city’s municipal court, prosecutor and police to issue fines and fees. We look forward to making our case to the U.S. Court of Appeals.”

One of the plaintiffs, Hilda Brucker, was fined by Doraville for a cracked driveway. For that extremely minor infraction she was given a misdemeanor conviction and a sentence of six months probation.

“I’m disappointed in today’s ruling but looking forward to continuing the fight on appeal,” said Hilda. “It was a hopeful sign that the judge called out, in his written decision, how an over-reliance on fines and fees distorts the justice system and creates faulty incentives. I’m ready for the next step, and I’m glad to have the Institute for Justice in my corner.”

The Institute for Justice recently issued a report on the nationwide problem of fines and fees. The report highlighted the abuses in Doraville, and rated Georgia as the worst state in the country on the issue, considering its heavy reliance on municipal courts, lack of procedural protections and free hand given to cities to pad their budgets through fining ordinary people for minor offenses.

D.C. City Council Passes Sweeping Licensing Reform to Help People with Criminal Records Find Work

The Council of the District of Columbia unanimously passed a bill Tuesday that will make it much easier for people with criminal records to become licensed in their chosen field. Previously, the District had below-average protections for ex-offenders seeking licenses to work, receiving a C- in a recent report by the Institute for Justice, Barred from Working. But thanks to the bill passed this week, that grade will soar to an A-, with the District’s laws the best in the nation, second only to Indiana. 

“An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Activism Policy Manager Chad Reese, who submitted testimony in favor of the bill. “This bill will eliminate many licensing barriers that have little basis in common sense and unfairly deny countless Americans looking for a fresh start.”

After adopting many of the suggestions IJ offered in its testimony, the Removing Barriers to Occupational Licensing for Returning Citizens Amendment Act will: 

  • Block boards from denying licenses based on criminal convictions, unless they are “directly related” to the license sought; 
  • Prevent boards from using arrests that didn’t result in a conviction as well as sealed, expunged, or vacated records;  
  • Repeal vague and arbitrary “good moral character” requirements found in multiple licenses (including for accountants, dental hygienists, and interior designers); 
  • Enact new reporting requirements to track the number of applicants and licenses issued and denied to people with criminal records. 

The bill will also create a petition process so that ex-offenders can see if their criminal record would be disqualifying, before they invest in any potentially expensive or time-consuming training or coursework. By imposing significant costs in terms of time and money, licensing laws often create substantial hurdles to worker mobility and prisoner reentry. For instance, according to a report by the Institute for Justice, the average license for lower- and middle-income occupations in the District requires paying $400 in fees, finishing 261 days of training and experience, and passing one exam. 

Since 2015, 33 states have eased licensing barriers for ex-offenders.

Innovative Mississippi Analytics Firm Free to Expand Its Business

Arlington, Va.— Today, the real estate analytics firm Vizaline is free to legally operate in Mississippi following the approval of a consent agreement by a Mississippi state court. Vizaline is a technology start-up located in Mississippi that uses public data to draw lines on satellite photos showing property boundaries. This information is used by banks to better understand their property portfolios. Less uncertainty means safer loans, safer banks and safer customers. In 2017, the Mississippi Board of Licensure for Professional Engineers and Surveyors sued Vizaline for “unlicensed surveying.” In response, Vizaline sued the Board for violating its First Amendment rights, because using existing information to create new information is protected speech. The consent agreement was reached following a ruling from the 5th U.S. Circuit Court of Appeals saying that occupational licensing regimes are not exempt from First Amendment protections. Because the consent agreement recognizes that the services Vizaline is providing are legal, Vizaline has agreed to drop its First Amendment lawsuit.

“I am pleased that the lawsuit is over and that we can get back to providing our services to our Mississippi clients without threats from the Board,” said Vizaline’s CEO and co-founder Brent Melton. “The information that we provide has proven very useful to banks and their customers, and now we can continue to grow our business here and regionally.”

The consent agreement recognizes that what Vizaline does—use public data to draw property descriptions on satellite photos—is not the practice of surveying and does not require a surveyor license. Vizaline’s technology is similar to services featured in Google Maps and Zillow.

“Using public data to draw lines on satellite photos is not surveying, it’s free speech,” said IJ Senior Attorney Paul Avelar. “You don’t need the government’s permission to use information to create new information and sell it to willing customers. The consent agreement means that Vizaline can continue to do what it has always done, free from threats from the Board.”

In February 2020, the 5th Circuit unanimously ruled in the case that “Mississippi’s surveyor requirements are not wholly exempt from First Amendment scrutiny simply because they are part of an occupational-licensing regime.” That decision turned on a major 2018 ruling by the U.S. Supreme Court in NIFLA v. Becerra, which ruled that “professional speech”—speech subject to licensing requirements—is not exempt from the protection of the First Amendment. The 5th Circuit confirmed that the NIFLA decision overruled prior 5th Circuit case law instituting a problematic “professional speech doctrine,” which exempted professional speech from First Amendment protection. The 5th Circuit’s decision in Vizaline has since been used to protect the free speech rights of a Texas veterinarian, Dr. Ronald Hines, in his lawsuit against the Texas State Board of Veterinary Medical Examiners.

The agreement has three key components:

  • The Board acknowledges that Vizaline has not held itself out as surveyor service.
  • The Board recognizes that Vizaline’s reports are not authoritative surveys.
  • The Board agrees that using descriptions from property deeds to draw lines on a satellite images representing property boundaries is not surveying as defined by law.

“Mississippi’s occupational licensing laws—especially in the hands of self-interested regulatory boards—threaten technological innovation and the rights to free speech and to earn an honest living,” said Melton.

“Too often, established industries try to use government power to squash competition,” said IJ Attorney Kirby Thomas West. “Mississippi, and other states, should resist these efforts and instead encourage innovative business ventures.”

New Report Finds Civil Forfeiture Rakes in Billions Each Year, Does Not Fight Crime

ARLINGTON, Va.Nationwide, civil forfeiture laws put innocent property owners at risk and encourage law enforcement to police for profit, with billions of dollars forfeited each year. So finds the latest edition of Policing for Profit: The Abuse of Civil Asset Forfeiture, released today by the Institute for Justice (IJ) 

This third edition of Policing for Profit presents the largest ever collection of state and federal forfeiture data17 million data points covering 45 states, the District of Columbia and the federal governmentThese data show forfeiture is a massive nationwide problemSince 2000, states and the federal government have forfeited at least $68.8 billion—that we know of. Not all states provided full data, so this figure drastically undercounts property taken from people through forfeiture. 

“The heart of the problem remains poor state and federal civil forfeiture laws, which are little improved since the previous edition of Policing for Profit was published in 2015,” said IJ Senior Director of Strategic Research and report co-author Lisa Knepper. “Most laws still stack the deck against property owners and give law enforcement perverse financial incentives to pursue property over justice.”  

Policing for Profit grades state and federal civil forfeiture laws based on the portion of proceeds directed to law enforcement coffers and the protections offered property owners. Thirty-five states and the federal government earn a D+ or worse. New Mexico earns the report’s only A, thanks to a 2015 reform that eliminated civil forfeiture and directed all forfeiture proceeds to the state’s general fund.  

Importantly, New Mexico’s reform has not compromised public safety, according to a new analysis published in the reportCompared to neighboring Texas and Colorado, New Mexico’s crime rates remained steady in the months and years following the reform, suggesting forfeiture does not deter crime and law enforcement are able to do their jobs without forfeiture proceeds. 

Indeed, new data published for the first time in Policing for Profit indicate forfeiture rarely targets big-time criminalsData from 21 states show half of all currency forfeitures are worth less than $1,300, hardly the stuff of vast criminal enterprises and far less than it would cost to hire an attorney to fight back. Moreover, Policing for Profit finds forfeiture proceeds mostly support law enforcement budgets, not crime victims or community programs. In 2018, agencies in 13 states with expenditure data spent almost no proceeds on victims and just 9% on community programs on average. 

“Despite its national prevalence and popularity with police and prosecutors, civil forfeiture simply doesn’t work,” said IJ Senior Research Analyst and report co-author Jennifer McDonald. “It doesn’t fight crime, it doesn’t target criminal kingpins, and it doesn’t support crime victims or community programs.” 

Policing for Profit also highlights a loophole that undercuts protections for property owners in states with better forfeiture laws: the federal equitable sharing program. Equitable sharing allows state and local law enforcement to seize property locally and turn it over to federal prosecutors for forfeiture under federal law—and get back up to 80% of the proceeds, regardless of state law.  

Not only does equitable sharing give state and local law enforcement agencies a leg up over property owners—the resources of the federal government and its convoluted forfeiture procedures—but it also enables agencies to get around state laws that make forfeiture more difficult or less profitable for them.  

This arrangement is very rewarding for law enforcement. Every year, the program pays out hundreds of millions of dollars to state and local law enforcement agencies—more than $8.8 billion from 2000 to 2019. Perhaps unsurprisingly, 70% of Americans oppose the loophole equitable sharing creates. 

No one should ever lose their property without first being convicted of a crime, but lawmakers should be especially concerned about forfeiture abuse now, as local governments face increased fiscal pressure amid the COVID-19 pandemic,” said KnepperResearch finds law enforcement agencies engage in more forfeiture when budgets are tight, suggesting the practice is even more ripe for abuse in the current economic climate 

Policing for Profit recommends that Congress and state legislatures protect all Americans’ property and due process rights by abolishing civil forfeiture and eliminating the perverse financial incentive it creates to police for profit. The report also recommends that Congress abolish equitable sharing and, until it does, that states prohibit their agencies from participating. 

New Mexico’s experience shows that strong forfeiture reform does not sacrifice public safety,” McDonald said. As states and Congress look for ways to create a fairer criminal justice system, one reform everyone should be able to agree on is ending civil forfeiture and the perverse profit incentive that fuels it. 

Institute for Justice Asks Supreme Court to Reject Dangerous “Misdemeanor Pursuit” Doctrine and Secure Our Constitutional Rights

Arlington, Virginia—In America, our homes are supposed to be our castles. But that security is in doubt. In California v. Lange, the U.S. Supreme Court will decide if the Fourth Amendment allows police to enter people’s homes without a warrant whenever an officer is pursuing anyone they think has committed any jailable misdemeanor. The Institute for Justice (IJ) submitted a friend-of-the-court brief asking the Court to reject that approach as contrary to the fundamental constitutional command that Americans should be safe and secure in their persons and property.

The Fourth Amendment forbids government from conducting “unreasonable” searches and seizures. But how is a court to decide what is or is not “reasonable”? Here, the California Court of Appeals held that police could enter Arthur Lange’s home late at night without a warrant just because the officer believed Lange had been honking his horn and playing music too loudly while driving. In that court’s view, it is always reasonable for officers who are pursuing someone for a jailable offense to enter that person’s home—no matter how harmless the offense or how much time they have to get a warrant.

That cannot be right.

The Fourth Amendment starts by declaring “the right of the people to be secure,” and history makes clear that the Amendment was designed to protect us from threats to our persons and property. It is this right—the right to be secure from government officers’ unchecked power to search and seize—that should serve as the Court’s compass when evaluating the reasonableness of police conduct. In the past, the Court has allowed police to enter homes without a warrant (or consent) only when the facts show a dangerous situation requiring immediate action. The Court should do the same here and reject the lower court’s fact-free approach that would weaken all Americans’ right to be secure in their homes.

In October, the Court agreed to hear the case.

“The Fourth Amendment protects our right to be secure in our property, which means both safe and free from fear that the police will enter without warning or authorization,” said Joshua Windham, IJ attorney and lead author of IJ’s brief in Lange. “A rule that allows police to burst into your home whenever they think they saw you commit a harmless offense turns that right on its head. We call on the Court to correct the lower court’s error and clarify that only true emergencies rooted in actual facts can justify warrantless home entries.”

“The Founders wrote the Fourth Amendment to make us secure in our persons and property,” explained IJ Senior Attorney Robert Frommer, who heads up IJ’s Fourth Amendment work.  “But the lower court’s decision treats our security as little more than a speed bump for law enforcement.”

“The Supreme Court should reverse this terrible decision and instruct lower courts that their top priority is to secure peoples’ constitutional rights, not merely to rubberstamp whatever actions the government has taken in the name of convenience for law enforcement.” said Scott Bullock, president and general counsel for the Institute for Justice.

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.]

U.S. Supreme Court Rules Unanimously You May Sue Government Agents for Damages When They Violate Your Individual Rights

Arlington, Va.—In a unanimous opinion issued today by the U.S. Supreme Court, and authored by Associate Justice Clarence Thomas, the Court ruled in Tanzin v. Tanvir that individuals may seek damages as a remedy when federal officers violate their rights. The opinion closely tracks an amicus brief submitted by the Institute for Justice.

The case involved FBI agents who retaliated against Muslim-Americans and green-card holders who followed the dictates of their faith and refused to cooperate with the FBI by spying on their own communities. As a result of their refusal to cooperate, these individuals were placed on the No Fly List, which caused significant hardship, such as the inability to travel to visit family or for work. Luckily, Congress provided a statutory authorization to sue for violations of religious rights, allowing a plaintiff to receive “appropriate relief against the government.”

Not surprisingly, in the lawsuit against the FBI agents, the government argued that the words “appropriate relief” do not include damages. According to the government, damages might be an appropriate remedy against private actors, but damages should not be allowed if the person who violated your rights happens to work for the government.

The Institute for Justice filed an amicus brief arguing against this radical notion. IJ’s brief outlined how suits for damages against government officials are the historical cornerstone of government accountability, how damages are often the only way to vindicate constitutional rights, and how none of the government’s policy justifications against damages have a basis in reality. IJ further explained that matters of policy should be left to Congress, not courts.

In a unanimous opinion, the Supreme Court agreed.

According to the Court, “in the context of suits against Government officials, damages have long been awarded as appropriate relief.” And that has been true not only for state and local officials, but also federal officials, like those employed by the FBI. Moreover, the Court highlighted that damages are important because they are often the only remedy available. For example, for one of the plaintiffs, Muhammad Tanvir, who lost his job because of his placement on the No Fly List, it is damages or nothing. Finally, in response to the government’s argument that policy favors denying a damages remedy against government officials, Justice Thomas, just like Justice Story two centuries before him, emphasized that it is the job of Congress to engage in policy making: “[T]here are no constitutional reasons why we must do so in its stead.”

“The Court today has provided its full-throated endorsement of damages as a necessary and historic mechanism for constitutional accountability,” said Scott Bullock, IJ’s president and general counsel. “In doing so, the Court also reiterated its support for the foundational principles of this country, such as that damages can be awarded to check the government’s power and that it is Congress’ job to engage in policy making. The Court’s job is to interpret the law, not to do policy.”

IJ’s support for the individuals who sued the government in this case is part of its Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then the government must follow the Constitution. IJ’s recent U.S. Supreme Court case Brownback v. King is also a part of this Project. It similarly asks the Court to stay true to this nation’s original promise by allowing James King—an innocent college student who was brutally beaten by police—his day in court, to hold accountable the government workers who violated his constitutional rights and to seek damages for the harm they caused him.


Every Contribution Helps IJ Fight for Americans’ Rights

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

Victory for Food Freedom In North Dakota: Homemade Food Producers Restore Food Freedom to North Dakota

Today, North Dakota Judge Cynthia M. Feland ruled that the North Dakota Department of Health broke the law when it passed regulations in December 2019 crippling the Cottage Food Act starting in January 2020. The Cottage Food Act was passed by the North Dakota Legislature and signed into law by Gov. Doug Burgum in 2017 and allows North Dakotans to buy or sell nearly any homemade food or meal to informed consumers. But that changed when the Department of Health passed regulations banning the sale of all homemade meals, almost all perishable foods, cut produce and many types of canned foods. Now, thanks to a lawsuit brought by five North Dakota homemade food producers throughout the state along with the Institute for Justice (IJ), North Dakotans will be able to start selling these homemade foods again.

“This victory means that more North Dakotans will be able to support their families and their farms by selling homemade foods” said IJ Senior Attorney Erica Smith. “It also means that North Dakotans will have more options to buy fresh and local food. This is exactly what the Legislature intended when it passed the Cottage Food Law three years ago.”

The North Dakota Health Department opposed the Cottage Food Law, however, and repeatedly tried to convince the Legislature to limit its scope. When the Legislature refused, the Department passed rules severely restricting the law. “Although the Department claims that it has the general authority to enact rules governing food safety, the agency cannot adopt rules that contradict or conflict with an unambiguous act of the Legislature,” wrote Judge Feland in an order declaring that the Health Department’s restrictions to the Cottage Food Act are “invalid and enjoined from enforcement.”

The plaintiffs in the lawsuit are Danielle Mickelson, Lydia Gessele, Lonnie Thompson, Summer Joy Peterson and Naina Agarwal. They come from different parts of North Dakota and look forward to resume selling all different types of foods, all of which they were able to sell under the Cottage Food Act but which were made illegal by the Department.

“I’m excited for the future of my business and what these freedoms mean for its growth,” said Danielle Mickelson, a Rolla farmer and mother of six. “I am thrilled to be part of something that can help current and future cottage food producers in North Dakota.”

“North Dakotans benefit from a straightforward way to make money from home,” said IJ Attorney Tatiana Pino. “The restoration of the Cottage Food Act means hundreds of new jobs and a boost to the local economy. That should be a welcome holiday treat to all North Dakotans.”

It is unknown if the Department will appeal the decision. In the meantime, North Dakota now can rejoin the states of Wyoming and Utah as having the most expansive laws allowing the sale of homemade food in the country.

Mental Health Professional Sues D.C. for the Right to Teleconference with Clients

WASHINGTON—As the COVID-19 pandemic fell on the greater Washington, D.C., area, professional counselor Elizabeth Brokamp quickly shifted her practice online. Yet she ran into a problem: When potential clients living in the District of Columbia contacted her to begin counseling, she was forced to turn them away because she is licensed in Virginia, but not the District.

If not for the pandemic, clients in the District could easily drive to meet with Elizabeth in person in the Virginia suburbs. Elizabeth is licensed in Virginia, and it would be entirely legal for her to see District residents face-to-face. But when Elizabeth asked District regulators if she could see new clients via teletherapy, regulators told her she would be cited if she tried. Now, Elizabeth is teaming up with the Institute for Justice (IJ) to sue the District for her right to counsel new clients by teletherapy.

“Counselors use words—they talk to people about their emotions and help them feel better,” said IJ Senior Attorney Rob Johnson. “Literally all Elizabeth wants to do in D.C. is talk over the internet. And under the First Amendment, the government cannot prohibit unauthorized talking.”

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

Elizabeth Brokamp has worked as a professional counselor for over twenty years, and she holds a master’s degree in Counseling Psychology from Columbia University. She is currently working toward a doctorate and holds certifications in several counseling specialties, including teletherapy. A temporary waiver allows Elizabeth to see clients with whom she has an existing relationship, but that waiver is only temporary and does not allow Elizabeth to take on new clients in the District.

“It is painful for me to have to tell people in D.C. that I am not allowed to help them right now,” said Elizabeth. “People should be able to engage with the counselor who can best meet their needs wherever they live and continue seeing that counselor if they move across the country. I hope my case can start removing senseless boundaries to teletherapy.”

Elizabeth’s legal claim is simple: Counselors talk to people about how to deal with problems in their lives, and, under the First Amendment, the government cannot cite counselors for talking. The District’s licensing law requires a professional counseling license for anyone who speaks with another person to “achieve long-term effective mental, emotional, physical, spiritual, social, educational, or career development and adjustment.” That law is staggeringly broad; read literally, it would sweep up friends, family members, pastors, self-help gurus and life coaches.

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

“Elizabeth has spent countless hours training to help people, and there are people in D.C. who are asking her for help,” said IJ Constitutional Law Fellow John Wrench. “Teletherapy makes it possible for Elizabeth to provide that help even during a pandemic. Now the D.C. government needs to get out of the way.”

This case is part of IJ’s broader initiative to protect occupational speech. In 2010, IJ successfully challenged the District’s licensing requirement for tour guides as a violation of the First Amendment, and IJ successfully represented a psychologist who was prosecuted by Kentucky’s psychology licensing board for distributing a newspaper advice column in the state without a license. IJ is also currently challenging a Texas law forbidding licensed veterinarians from giving online advice, as well as Arizona’s attempt to prohibit a trained engineer from truthfully describing himself as an “engineer.”

South Padre Island Food Truck Laws Declared Unconstitutional

Brownsville, Tex.—In a sweeping victory for economic liberty, Judge Arturo Cisneros Nelson of the Cameron County District Court struck down South Padre Island’s anti-competitive food truck permit cap and restaurant-permission scheme. The district court ruled that the city violated the Texas Constitution when it forced food truck owners to get permission from local restaurant owners before being eligible for a food truck permit, and by making it illegal for more than twelve food trucks to open for business on the island.

The Institute for Justice (“IJ”) challenged both anti-competitive restrictions on behalf of food truck owner SurfVive, a local nonprofit spearheaded by Erica Lerma, and the Brownsville-based Chile de Árbol food truck operated by brothers Anubis and Adonai Avalos. Both food trucks were forced to the sidelines and could not operate under the city’s permitting scheme.

“This is a victory under the Texas Constitution for entrepreneurs across Texas,” said Arif Panju, Managing Attorney of IJ’s Texas Office. “The government cannot pass laws to protect politically connected insiders from competition— operating a small business in the current climate is challenging enough without the government picking winners and losers.”

Until 2016, the city of South Padre Island banned food trucks from opening for business on the island. When the city finally allowed food truck entrepreneurs in, evidence showed that local restaurant owners lobbied the city council to cap the number of available food truck permits—and also require applicants to first obtain a signature from their brick-and-mortar competitors to qualify for a permit. The district court rejected this economic protectionism as a violation of the Texas Constitution.

“SurfVive will finally be able to pursue our goal of providing healthy, sustainable food for our community,” said Erica Lerma. “This victory also means that other new entrepreneurs can pursue their dreams of opening businesses on South Padre Island without being restricted by laws that serve no purpose other than limiting competition.”

This case continues IJ’s National Street Vending Initiative, which protects vendors’ rights coast to coast. For example, IJ lawsuits in San Antonio, El Paso and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors.

Eagle Families Fight Back Against Out of Control Fines and Fees

WAUKESHA, Wis.—The Town of Eagle in Waukesha County, Wisconsin, looks like many other places in the Badger State, with its modest homes and small farms. But Eagle is not the idyllic town it appears to be. If residents get on the wrong side of the town board, they can find themselves with tens of thousands of dollars in fines and fees for residential code violations. The town’s attorney, a private law firm, has even asked a judge to threaten jailtime if residents cannot pay up.

Annalyse and Joseph Victor and Erica and Zach Mallory both saw their dreams of rural freedom come crashing down when code enforcers targeted their homes. But the Town of Eagle cannot use code enforcement to punish its critics and to enrich a private law firm. That is why the Mallorys and the Victors are teaming up with the Institute for Justice (IJ) to take the fight for their rights to Wisconsin’s state courts.

“Code enforcement in the Town of Eagle is out of control in so many ways,” said IJ Attorney Kirby West. “Codes exist to protect public safety, but in Eagle citations are handed out selectively and in amounts that are unconstitutionally excessive. Given that the power to assess violations has been farmed out to a private law firm—paid by the hour—it is sadly not surprising that enforcement seems to prioritize profit, not public safety.”

Eagle imposed $87,900 in fines and fee on Annalyse and Joseph Victor for a variety of violations related to a few trucks that were parked on their nearly 10 acres of rural property. Joseph is a semi-truck driver, and the couple bought the property in part because the previous owner parked his trucks there. After being notified of violations by a letter, they spent months trying to work it out with the town.

When the town’s attorney filed the fines in county court, the Victors never received notice of the hearing. At that hearing, the judge signed off on the fines and fees but struck out a provision sought by the town that would have threatened Annalyse with six months in jail if the couple could not immediately pay. It was only later that the Victors first found out how much the town was demanding from them and that the court had ruled for the town. They are now asking the judge to roll back that ruling so that they can contest their fines.

“The Town of Eagle is trying to ruin us with fines on top of fines for things we didn’t even know were wrong,” said Joseph Victor. “When we searched for a home, we looked for a rural property where we could park trucks without bothering our neighbors. Eagle didn’t turn out to be the place we thought it would be, but this fine makes it impossible for us to sell our home and leave.”

Erica and Zach Mallory thought they had found their little slice of heaven in Eagle. In 2016, they purchased nearly four acres of land where they raise chickens and lambs, grow fruits and vegetables, and maintain beehives. But Erica found out the town had a dark side when she started regularly attending council meetings. And after Erica spoke out in support of neighbors, her small Mallory Meadows Farm was inspected.

The town threw the book at them for minor violations like an unpermitted flower planter, tall grass and the location of a barn that was on the property when they purchased the land. They are now being threatened with more than $20,000 in fines and fees. When Erica asked one of the board members about the board’s decision to pursue the Mallorys for ordinance violations, she was told that she had “ticked off all the board members with [her] meeting comments and on [F]acebook,” and so “the board members voted with emotion.”

“Local codes have to be enforced fairly and without favoritism, not because town officials don’t like what you have to say at meetings,” said IJ Attorney Alexa Gervasi. “Targeting someone for their political speech is a grave violation of the First Amendment and equal protection. Governments cannot go out of their way to punish you because you have criticized them.”

IJ is representing the Victors and Mallorys in separate legal actions with the same goal: stopping fines and fees that were unconstitutionally assessed and that violate the Constitution’s limits on excessive fines. In a 2019 IJ case, Timbs v. Indiana, the U.S. Supreme Court established that states and cities are subject to the 8th Amendment’s limits on excessive fines.

“The Constitution requires that punishment cannot be so harsh that it doesn’t reflect the seriousness of the offense, but the Town of Eagle issues ruinous fines for minor infractions,” said IJ Attorney Marie Miller. “Taxation by citation may help cities pad their bottom line, but it’s residents who suffer from cities’ greedy, and often unconstitutional, practices.”

IJ has represented homeowners in Indio, California, whose code citations came along with expensive bills they owed to the private law firm that prosecuted them. In Doraville, Georgia, and Pagedale, Missouri, IJ clients were fined for petty violations like improperly stacked firewood or mismatched curtains. And in Dunedin, Florida, IJ is defending a homeowner threatened with foreclosure over fines for having long grass.

Victory for Free Speech: Texas Veterinarian Wins First Amendment Appeal about Giving Pet Advice Online

AUSTIN, Texas—Today, the 5th U.S. Circuit Court of Appeals recognized that restricting the online pet advice of Brownsville, Texas, veterinarian Dr. Ron Hines implicated his First Amendment rights, reversing a lower court ruling that occupational speech is not protected by the First Amendment. Dr. Hines now has the opportunity to go back down to the trial court and prove the First Amendment violation. Today’s decision has broad implications for other professionals who want to meet virtually with clients, especially in the midst of COVID-19.

Dr. Hines gave online advice to pet owners all across the world from 2002 to 2012, until the Texas State Board of Veterinary Medical Examiners said his advice was illegal—not because it harmed an animal or was inaccurate, but because Texas prohibits veterinarians from sharing their expertise with pet owners without first examining their pets in person. Dr. Hines teamed up with the Institute for Justice (IJ) in 2013 to challenge that restriction but the 5th U.S. Circuit Court of Appeals ruled in 2015 that his advice was regulated by occupational licensure and hence not protected by the First Amendment. After a landmark 2018 Supreme Court decision (NIFLA v. Becerra) rejected the so-called “professional speech doctrine,” which excluded occupational speech from the First Amendment, Dr. Hines again partnered with IJ in 2018 to vindicate his right to free speech. Today’s ruling enshrines constitutional protection to Americans who want to give advice online without being punished for it.

IJ Senior Attorney Jeff Rowes said: “Today’s decision is the latest in a unanimous string of federal appellate decisions ruling that the First Amendment protects the occupational speech of workers just as it protects other kinds of speech. Spurred by the pandemic, more and more people are serving their clients online and their ability to give advice may be hampered by occupational licensing laws. Just as Dr. Hines’ speech with pet owners is protected by the First Amendment, so too is the speech of others like doctors and psychologists.”

“The viability of tele-practice in many occupations depends on First Amendment protection for speech. Dr. Hines’ win is a victory for all Americans who want to seek or give advice online,” said IJ Attorney Andrew Ward, who also represents Dr. Hines. “It is also a win for literally billions of people around the world who, through the internet, have a cheap and simple way to get advice from an American professional that may be entirely unavailable in their own countries.”

After a disability made physical practice too difficult, Dr. Hines spent a decade of his retirement giving online advice to pet owners around the world. For most pet owners he advised, traditional veterinary clinics were not a realistic option. Dr. Hines charged little to nothing, and there was no evidence that animals were anything other than benefitted. Nonetheless, the Texas veterinary board suspended Dr. Hines’ license, fined him and forced him to stop giving life-saving advice. The 5th Circuit then ruled against him in his initial lawsuit. Since then, however, major developments in First Amendment law prompted Dr. Hines to renew his lawsuit.

“This is less a decision about me than it is a decision about the future of all the much younger veterinarians out there who need the freedom to connect with pet owners and their pets in new, better, less expensive ways. That freedom to share good ideas is what the First Amendment is all about,” said Dr. Hines.

Case Appealed to U.S. Supreme Court Seeks to Ensure Prompt Hearings After Property Seizures
  • At America’s Founding, laws directed courts to “hear and determine” forfeiture cases after a mere 14-day delay. Today, property owners must wait months or years for their day in court.
  • Law enforcement has a direct financial incentive to abuse the system, as agencies sell property that they seize and use the proceeds to fund their budgets.
  • Law enforcement frequently uses delay to extract settlements from property owners. Many, unable to wait for a hearing, simply give up.

Arlington, Va.—Does due process require a prompt hearing after the government seizes a vehicle through civil forfeiture?  That is the question the justices of the U.S. Supreme Court will consider addressing in Serrano v. Customs and Border Patrol, a lawsuit appealed by the Institute for Justice (IJ) on behalf of its client, Gerardo Serrano, who had his new truck taken from him at the Mexican border in 2015.

Customs and Border Protection (CBP) didn’t like that Gerardo took photos at the border, which he planned to share on social media with relatives in Mexico to let them know he would see them soon.  Two agents objected and, after stopping Gerardo’s truck, physically removed him from it, took possession of his phone, and repeatedly demanded the password.  Gerardo, a staunch believer in civil liberties who has run for elected office on a platform of respect for constitutional rights, suggested that the agents obtain a warrant.  The border agents responded by telling Gerardo they were “sick of hearing about [ ] rights.”  In retaliation, they went through his new Ford pickup with a fine-tooth comb searching for any excuse to seize his vehicle.  They found five low-caliber bullets, which they absurdly called “munitions of war,” and used them as an excuse to take his vehicle.  (There was no gun in the vehicle.)  For the next two years, despite Gerardo’s repeated requests, the government never gave him his day in court to prove his vehicle’s innocence or to force the government to justify its actions before a judge.

Shortly after Gerardo filed a class-action lawsuit against the CBP (Serrano v. Customs and Border Patrol), the agency tried to moot Gerardo’s case by returning the vehicle.  But the trial court held that the case was not moot—as Gerardo could move forward with class-action claims on behalf of all U.S. citizens who have had vehicles seized at the border—and the 5th U.S. Circuit Court of Appeals agreed.  Still, having rejected the government’s attempt to moot the case, both courts held that due process does not require government to provide a prompt post-seizure hearing after seizing automobiles.  That ruling is now on appeal to the U.S. Supreme Court.

“In the criminal context, after the government arrests you, it must hold a probable cause hearing shortly after the arrest—even if the criminal trial follows later,” said Rob Johnson, an IJ attorney.  “We are saying the government must provide the same kind of prompt hearing after it takes your property.”

Gerardo said, “It’s bad enough that civil forfeiture forces you to prove your property is innocent; it’s worse when the government doesn’t even give you your day in court to state your case.  I understand these kinds of abuses by government authorities can happen in other countries, but not here in America where government power is supposed to be limited by the Constitution.”

At the Founding, forfeiture laws directed courts to “hear and decide” forfeiture cases after just a 14-day delay.  Gerardo’s inability to get his day in court after over two years stems from the explosive use of forfeiture, especially over the past 40 years, and the desire of law enforcement to game the system so it is as difficult as possible for those seeking to get their property back to succeed.  Government can use lengthy delays to extract settlements, and most property owners give up long before their case reaches a judge.

Johnson said, “There is no reason a hearing can’t be held in a matter of two weeks rather than the endless delays property owners now experience.”

“Imagine being detained at an airport checkpoint because you innocently forgot to take a tube of toothpaste out of your luggage,” said Anya Bidwell, an IJ attorney.  “Rather than asking you to throw it out or put it in your checked bag, the TSA seized all your luggage, including the toothpaste tube.  That is basically what Border Patrol agents did to Gerardo.  Then, worse than that, they held onto his vehicle for two years, never giving him a chance to defend himself before a judge or hold those officers accountable for their actions.”

“In any other area of the law, outside of civil forfeiture, the Supreme Court has stated you’re entitled to a swift hearing before or immediately after the government takes your property,” said Scott Bullock, president and general counsel for the Institute for Justice.  “A car should be no different, and yet car and truck owners face years of delay before they can fight in court to get their property back.”

Vehicles often represent a person’s livelihood and their ability to get to work; that just underscores the importance of a swift hearing, to ensure that the loss of a vehicle doesn’t cascade into the loss of someone’s job or worse.

Every year, local, state and federal law enforcement agencies across the United States seize and keep billions of dollars in cash, cars, homes and other property using a legal tool called civil forfeiture.  To better understand the issue, the Institute for Justice released a report titled Forfeiture Transparency & Accountability that examines forfeiture reporting requirements and practices for all 50 states, as well as the District of Columbia and the U.S. departments of Justice and the Treasury.  It finds that forfeiture programs nationwide suffer from a lack of transparency and accountability.

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.  More information on the case is available at:  https://ij.org/case/eagle-pass-civil-forfeiture/.]

Tennessee Parents Appeal School Choice Program to Tennessee Supreme Court

Arlington, Va.—This afternoon, two Tennessee parents appealed to the Tennessee Supreme Court a September decision from an appellate court that declared the Tennessee Education Savings Account Pilot Program in violation of the Tennessee Constitution. The parents planned to use the Education Savings Accounts (ESAs) authorized by the law to remove their children from chronically underperforming school districts and enroll them at schools that meet their needs.

These parents partnered with the Institute for Justice (IJ) to defend the program from a constitutional challenge levied against it in February, and they are jointly defending the program alongside another set of parents represented by the Beacon Center of Tennessee.

In the September ruling against the program, the appeals court ruled that the pilot program was unconstitutional under the Home Rule Amendment of the Tennessee Constitution. This provision prohibits the legislature from adopting “private or local” laws that are “applicable to a particular county . . . in either its governmental or its proprietary capacity.” But the program applies to school districts, not counties, and it neither affects nor reduces any county’s ability to govern itself. The law simply empowers low- and middle-income families with children assigned to some of Tennessee’s worst-performing schools, and does so by allowing them to receive their state education benefit in an ESA so that they can afford private educational options that meet their needs. The parents filing today’s appeal are asking the Tennessee Supreme Court to reverse the appellate court and restore Tennessee’s Education Savings Account Pilot Program.

“Today, parents are asking the Tennessee Supreme Court to protect educational choice in Tennessee, and to remind Shelby County and Metro that they exist to serve Tennesseans, not the other way around,” said IJ managing attorney Arif Panju. “Shelby County and Metro launched a legal challenge to extinguish educational options that benefit Tennessee children—their own constituents.”

The ESA program was passed in 2019 by the Tennessee Legislature. The program can offer a lifeline to families that would like to leave underperforming school districts that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying low- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

ShopInPlaceChi.com Ready to Help Windy City Shoppers Connect With Local Small Businesses

CHICAGO—With Small Business Saturday just a few days away and the holiday shopping season already in full swing, Chicagoans should know that there is an easy way for them to find small, local businesses ready to serve them safely. Launched this spring, www.ShopInPlaceChi.com helps consumers search for small businesses by category and neighborhood.

The website is free to the public courtesy of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago (IJ Clinic). The IJ Clinic provides free legal assistance, support and advocacy for low-income entrepreneurs in Chicago.

“This holiday season we’re encouraging Chicagoans to make their gift shopping even more meaningful by supporting a local small business,” said IJ Clinic Director Beth Kregor. “ShopInPlaceChi.com has grown rapidly in the past few months, making it a really useful tool for finding almost anything holiday shoppers are seeking.”

Thanks to a partnership with United Airlines, the number of businesses listed on the website recently expanded. United Airlines volunteers helped add 600 additional listings and provided marketing support to let flyers know that the website is a great way to support Chicago businesses whether they are visiting or call the Windy City home.

The website continues to welcome new submissions from Chicago small businesses selling products in categories such as bath and cleaning products, books, educational supplies, games and toys, food, apparel and more. Businesses interested in being listed on the website should visit shopinplacechi.com/submit-your-business/ and fill out a short form with information about the products they offer, their neighborhood locations, and how consumers can safely purchase their products through delivery or curbside pickup. Listings will be added after a review by IJ Clinic staff and volunteers.

IJ Clinic Director Beth Kregor is available for interviews via phone or video conference. Contact Andrew Wimer, IJ Assistant Communications Director, at awimer@ij.org or (703) 298-5938 to arrange.

Roseau County Landowners Demand Watershed District Disavow Eminent Domain, Receive No Guarantee Their Property Is Safe

The Roseau County Landowners Coalition attended a Roseau Lake project work session earlier this month to demand that the Roseau River Watershed District (RRWD) abandon its plans to force farmers to install flood easements on or sell their productive, multi-generational farmland.

The RRWD’s unnecessary and costly flood mitigation project requires the acquisition of property that is owned by farmers and landowners who do not want to sell. If the RRWD wants to build its current vision, they will have to use eminent domain to acquire easements, against the will of the property owners. An “easement” is a taking of property, and will render the farmers’ taken property useless.

Property owners were hopeful that the RRWD would disavow taking their land, but unfortunately they left the work session with renewed clarity: the threat of losing their land for this project remains. The RRWD Board Chairman refused to go on record against using eminent domain.

“The Roseau County Landowners Coalition’s position is simple: we will not support a project that takes private property away from unwilling sellers. Easements are takings, and these easements would render much of these farmers’ land unfarmable,” said Melanie Benit, an activism associate with the Institute for Justice (IJ), which is assisting the Landowners Coalition. “We are grateful for the support of individual board members who committed to respecting Roseau landowners’ property rights, but it is disappointing that the board as a whole could not. This should outrage farmers throughout the region.”

This “lake rehabilitation” project proposes a combination of embankments and flood control gates. predominantly on private land, to keep excess water in the historic basin. In order to either acquire the land outright or force an easement on these private lands, the RRWD would have to take unwilling sellers to court through eminent domain proceedings. Taking the land outright or by easement makes no difference to the farmers, as either is a loss of farmable property.

All this for a project with little to no benefit. Coalition members have been farming this land for decades, installing their own culverts and control systems to manage flooding. This has allowed them to let enough water on their land to fertilize it, then drain any excess water when necessary. This current system will be undone by the proposed project, turning the usually dry basin into a semi-permanent marsh.

The project will:
• Produce minimal flood reduction, and will do nothing for major flooding events.
• Exacerbate flooding on private property near the basin.
• Swap one wildlife habitat (deer and other upland game frequent the area now) for another.
• Cost at minimum $15 million.

Farmers and landowners have been fighting this project for years, scared to lose what they have worked so hard to own, for good reason. These are real families that have a connection to their farms lasting for generations, with the intention of lasting for generations more. Consider Mitch Magnusson, who grew up on his Roseau farm and has worked his own land since the 1980s; his great grandfather put down roots there in 1895. Now, Mitch’s children carry on the family tradition, farming wheat, soybean, sunflowers and more.

It’s time for the RRWD Board to give the people they represent peace of mind and assure everyone that their work in and around the Roseau Lake basin will not use government force to acquire property.

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

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

Tampa Woman Will Finally Get Her $43,167 Back from the Federal Government

TAMPA, Fla.—Stacy Jones’s $43,167 will be returned to her after the Drug Enforcement Administration (DEA) wrongfully seized it as she was flying home to Tampa from the Wilmington International Airport in May of this year. Without offering any explanation or apology for the harm caused by confiscating her money, the DEA informed the Institute for Justice (IJ) via letter that it would transfer the money back to Stacy.

Stacy had flown with large amounts of cash in the past and did not expect it would be a problem when she did so earlier this year. After cutting short a planned trip to a North Carolina casino, she packed money that she had intended to gamble in her carry-on bag. At the airport, Transportation Security Administration (TSA) screeners saw the cash on their X-ray and held onto her bag, even though there was no indication that Stacy or her luggage posed a threat to transportation security. Sheriff’s deputies and DEA agents interrogated her about the source of the money. She explained the legal sources of her money, but the DEA agents seized it—without any allegation of criminality. In July, Stacy teamed up with IJ to fight for her money and to end these unconstitutional and unlawful practices by the DEA and the TSA.

“Getting my money back is a big relief, but DEA never should have taken it in the first place,” said Stacy. “In going through this nightmare, I found out that I’m not the only innocent American who has been treated this way. I hope that my continuing lawsuit will end the government’s practice of treating people flying with cash like criminals.”

IJ’s federal class action lawsuit aims to stop TSA’s and DEA’s unconstitutional and unlawful airport cash seizure practices. First, the suit claims that TSA exceeds its statutory authority by seizing travelers and their luggage simply for traveling with a “large” amount of cash, which poses no threat to transportation security—the agency’s sole mission. Second, the suit claims that this TSA practice also violates the Fourth Amendment rights of flyers. Third, the suit claims that the DEA violates the Fourth Amendment rights of flyers by seizing them based solely on the belief or knowledge that they are traveling with a large amount of cash, and by seizing their money for civil forfeiture without probable cause, based solely on its amount.

“We are glad that Stacy will get her money back, but it is shameful that federal agents keep targeting innocent flyers at our nation’s airports,” said IJ Senior Attorney Dan Alban. “We are going to keep fighting to end TSA’s and DEA’s unconstitutional and unlawful practices of seizing people and their cash without reasonable suspicion or probable cause.”

Stacy’s case is emblematic of the upside-down world of civil forfeiture, where the government brings charges against property instead of people. The government does not have to convict or even charge people with a crime in order to take and keep their property. Property owners are not entitled to legal representation, and the standard of proof needed for the government to keep the property is lower than in a criminal case. More information on federal and state civil forfeiture practices is available at: https://ij.org/report/policing-for-profit/.

Theft of Seized Funds Demonstrates Deep Need for Civil Forfeiture Reform in South Carolina

ARLINGTON, Va.—The Institute for Justice (IJ), which will soon argue before the South Carolina Supreme Court that it should end the controversial practice of civil forfeiture, calls attention to the sentencing of Blair Shaffer, the former police chief of Manning, South Carolina. Yesterday, a federal court sentenced Shaffer to a year and a day in prison for his theft of nearly $80,000 in cash seized by his office during a traffic stop. Shaffer’s sentencing is part of a series of high-profile prosecutions that demonstrate the need to end “policing for profit” in the Palmetto State.

Shaffer’s theft was discovered after a state court ordered that some of the seized money be returned to the property owners, and the money was sent to their attorneys in the form of checks drawn from Shaffer’s personal bank account. The U.S. Department of Justice brought federal charges after an FBI investigation. That a South Carolina officer had the opportunity to commit such a crime shows how the profit motive inherent in civil forfeiture distorts law enforcement priorities.

“South Carolinians’ property rights deserve to be treated with respect, but it is not surprising to see that another former law enforcement official has been convicted for misusing seized funds since the legal practice of civil forfeiture lets law enforcement treat citizens like ATMs,” said Robert Frommer, a senior attorney at the Institute for Justice. “Moving seized funds into a personal bank account is a crime. Yet it is legal for officers to seize cash without charging the owner with a crime—let alone securing a conviction—and then use that cash as a slush fund for their agency. The South Carolina Supreme Court should end civil forfeiture’s profit incentive, which too often turn cops into robbers.”

Under South Carolina’s forfeiture system, prevailing police and prosecutors get to sell the owner’s property and keep at least 95% of the proceeds for their agencies. As a report by the Institute for Justice demonstrates, the financial incentive posed by civil forfeiture lures officials away from the impartial pursuit of justice and toward policing for profit.

South Carolina’s forfeiture laws also lack accountability. The law requires that forfeiture proceeds be put into accounts dedicated exclusively to seizing and forfeiting agencies. Those agencies typically do not have to ask anyone for permission before they spend the money in those accounts. And since agencies do not need to report how much they have spent in forfeiture proceeds, or on what, the true scale of South Carolina’s “policing for profit” problem is impossible to measure.

Maine Parents Challenging Law Excluding Religious Schools from State’s Tuition Program Will Appeal to Supreme Court

Arlington, Va.—A panel of the 1st U.S. Circuit Court of Appeals today issued a ruling upholding a Maine law that excludes religious schools as an option for parents and students from the state’s high school tuitioning program. The ruling comes despite the recent U.S. Supreme Court decision in Espinoza v. Montana¸ which struck down similar restrictions in a school choice program. The parents challenging the law and their attorneys at the Institute for Justice (IJ) and the First Liberty Institute (FLI) will appeal today’s decision to the U.S. Supreme Court.

“Today’s decision allows the state of Maine to continue discriminating against families and students seeking to attend religious schools and we will immediately appeal to the U.S. Supreme Court,” said IJ Senior Attorney Tim Keller. “The Supreme Court’s recent decision in Espinoza prohibits religious discrimination in educational choice programs. Today’s decision is disappointing for families across Maine, but we are confident the Supreme Court will ultimately put a stop to it.”

Maine is home to the nation’s second-oldest school choice program. Since 1873, Maine’s “tuitioning” system has paid for parents in towns too small to maintain public schools to send their children to the school of their choice—public or private, in-state or out-of-state. Until a flawed 1980 legal opinion, parents were free to exercise their independent choice to select religious schools.

“The U.S. Constitution does not allow the government to discriminate against religious educational options,” said IJ Senior Attorney Arif Panju. “The state of Maine has done so for 40 years, and we will ask the U.S. Supreme Court to finally put an end to it.”

The three plaintiff families reside in small towns—Orrington, Glenburn and Palermo—where the local school districts pay tuition for resident high school students to attend the public or private schools of their choice in lieu of maintaining their own public high schools.

Court Says Lincoln Home Baker’s Lawsuit Challenging City’s Unnecessary Regulations May Proceed

OMAHA, Neb.—Yesterday, the Lancaster County District Court denied the city of Lincoln’s motion to dismiss, permitting home baker Cindy Harper’s lawsuit against the city to move forward. Cindy’s lawsuit, brought by the Institute for Justice (IJ) in partnership with Husch Blackwell LLP, challenges Lincoln’s decision to bring back regulations at the local level that were repealed by the state legislature. 

In 2019, the Nebraska legislature passed LB 304 to exempt home bakers from having to satisfy unnecessary permitting and inspection requirements. But in January 2020, Lincoln went rogue, unveiling new regulations designed to reimpose the same permitting and inspection requirements that the legislature deemed unnecessary. 

“I’m happy to be moving forward in this process,” said Cindy Harper. It’s good to be one step closer to the elimination of the unfair and inequitable regulations that Lincoln is imposing on its residents.” 

“Lincoln’s ordinance is an affront to local home bakers,” said IJ attorney Keith Neely. “Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska and the legislature intended to give home bakers the same opportunity to sell their goods whether they live in Lincoln, or Omaha, or Bellevue.” 

In denying the city’s motion to dismiss, the court appeared to agree. “There seems to be some tension” between LB 304 and Lincoln’s ordinances, the court explained. “[I]t is enough to say that the Plaintiff has plausibly alleged that the statute and ordinances are not consistent.” 

This case is part of IJ’s National Food Freedom Initiative. IJ is currently challenging similar regulations in North Dakota and has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home-canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including Kentucky, Maryland, Nebraska, West Virginia and Wyoming.  

Members of Congress, Scholars & Advocates Urge High Court Not to Create Loophole for Government Officials Seeking to Escape Accountability

Arlington, Va.Brownback v. King, a case in which the government is seeking to create a huge new loophole through which government workers can escape accountability when they violate someone’s constitutional rights, will be argued before the U.S. Supreme Court on Monday, November 9, 2020. In anticipation of that argument, scholars, public interest advocates and members of Congress have submitted friend-of-the-court briefs urging the justices to reject the government’s effort to prevent those whose rights have been violated from ever having their day in court.

The case centers on James King, an innocent college student unreasonably misidentified as a non-violent fugitive by plainclothes members of a joint state-federal task force and then mercilessly beaten, choked unconscious and hospitalized for his injuries. Six years after the beating, the government continues to prevent James from ever having his case against the officers argued in a court of law.

At the heart of the dispute is the U.S. Solicitor General’s assertion that because James brought two sets of claims in the trial court—one for constitutional violations by the officers and another against the United States as the employer of these officers—his constitutional claims cannot be pursued against the officers because the claims against the government were dismissed by the court. This radical interpretation of the Federal Tort Claims Act (FTCA) is especially galling when one considers that the FTCA was enacted to make it easier—not more difficult—for plaintiffs to recover for violations of their rights. But the Solicitor General now seeks to weaponize the FTCA against people like James, thus ensuring rogue officers like those who beat James can escape accountability.

In addition to the Institute for Justice’s brief filed on behalf of James, several amicus briefs have also been filed by leading members of Congress, legal scholars and public interest advocates on James’ behalf. These include:

  • A brief on behalf of members of Congress argues that Congress passed the Federal Tort Claims Act to allow individuals to sue the United States as means for recovering for violations of constitutional rights by its employees. The government’s interpretation of the Federal Tort Claims Act would circumvent this foundational principle and the very reason for the passage of the act.
  • A brief on behalf of the Law Enforcement Action Partnership, a nonprofit organization whose members include police, prosecutors, judges, corrections officers and other law enforcement officials, argues that the government’s interpretation of the Federal Tort Claims Act is inconsistent with common law. Furthermore, according to the brief, the government’s interpretation would further undermine trust between law enforcement and the public—the last thing we need in these unsettling times.
  • A brief that crosses philosophical boundaries on behalf of Cato and the National Police Accountability Project argues that a two-track system of accountability for federal versus state officials already exists—it is much more difficult to hold federal officials accountable for violations of constitutional rights. The government’s interpretation of the Federal Tort Claims Act would further widen the gap between the two regimes and cause an even greater proliferation of federal-state task forces, which is a mechanism invented to allow state officers to take advantage of the more permissive federal regime.
  • Briefs by the ACLU and the Public Citizen provide outstanding textual analyses of the Federal Tort Claims Act’s relevant provisions, as well as trace these provisions’ roots to the common law. The briefs are clear: Both the text of the Federal Tort Claims Act and its reliance on the common law principle of res judicata support James’s argument that he should be allowed his day in court.
  • A brief by Professors James E. Pfander, Gregory C. Sisk and Zachary D. Clopton—leading experts on the Federal Tort Claims Act—provides the Court with a sophisticated analysis of text, history and context of the Federal Tort Claims Act and argues that all three weigh heavily in favor of James King and against the government’s position.

“We are grateful for the support of all these outstanding groups and individuals,” said President and General Counsel of the Institute for Justice Scott Bullock. “Their briefs make it clear that the government is taking an extreme position in this case, and its unorthodox reading of the Federal Tort Claims Act should be rejected. James must be allowed his day in court.”

James King shared his story in this brief video produced by the Institute for Justice.

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information on the case is available at:  https://ij.org/case/brownback-v-king/.]

Pennsylvania Judge Orders Pottstown to Hand Over Records In Pottstown Residents’ Lawsuit Over Unconstitutional Home Inspections

Wednesday afternoon, Judge Richard P. Haaz for the Court of Common Pleas of Montgomery County, Pennsylvania, denied the borough of Pottstown’s motion for a protective order in a lawsuit over its rental inspection law that forces landlords and tenants to open their properties and homes to intrusive inspections. Pottstown renters, a landlord, and residents of a non-rental home the borough attempted to search partnered with the Institute for Justice (IJ) to challenge the inspections in 2017. They challenged the inspections for violating Article I, Section 8 of the Pennsylvania Constitution’s right to privacy in the home. Wednesday’s order ensures that Pottstown residents will have a full record of how these inspections are actually conducted—and what inspectors actually do once they are inside peoples’ homes. 

On June 23, 2020, the court ordered Pottstown to produce “all requested documents.” Pottstown chose to defy this order and instead filed for a protective order in the Court of Common Pleas, asking for the quantity of documents it had to produce to be severely limited and for the right to withhold all electronically stored information.  

And that’s not all—Pottstown claimedfor the first time in the three years of this litigation, that producing these documents was so burdensome that the plaintiffs challenging the constitutionality of the rental ordinance should pay for what the court had ordered. The plaintiffs in the lawsuit, in reaction to Pottstown’s obstinate unwillingness to satisfy its discovery obligations, asked the court to allow the plaintiffs to appoint a computer forensics expert trained in data recovery to retrieve the borough’s files. Judge Haaz granted this request in Wednesday’s order. 

“Pottstown’s attempts to keep its unconstitutional inspections hidden from public view were always meritless, and we’re pleased to see the court recognize it as such,” IJ Attorney Robert Peccola said. “With these records, we will be one step closer to vindicating Pottstown residents’ constitutional rights.” 

IJ to Wisconsin Supreme Court: Dane County Order Closing Private Schools is Unconstitutional Protectionism

Arlington, Va.—The Institute for Justice, a non-profit public interest law firm that advocates for educational choice and economic liberty, filed an amicus brief with the Wisconsin Supreme Court in support of parents challenging a Dane County, Wisconsin, order closing private (and public) schools for grades 3-12. While Dane County allows childcare and educational camps at these facilities, it has completely banned in-person instruction at the behest of private schools’ competitors—teachers’ unions. In its brief, IJ reminds the Wisconsin Supreme Court that this protectionism is an illegitimate purpose under the Wisconsin Constitution.

“The Wisconsin Constitution forbids politicians from protecting special interests from competition,” said IJ Attorney Milad Emam. “In closing schools for their competitors’ benefit, Dane County has violated parents’ right to direct their children’s schooling.”

After Dane County first closed schools in August, a group of families and private schools petitioned the Wisconsin Supreme Court to review the County’s order. Last month, the Court temporarily enjoined the order for being beyond the County’s authority. While legal counsel for the families and schools has focused its arguments on whether the order complies with state law and whether it violates religious-liberty protections, the IJ brief reminds the Court that the order also fails constitutional scrutiny because it is purely protectionist.

IJ has successfully challenged several protectionist restrictions on economic liberty in three Wisconsin cases. In the past decade, IJ has won constitutional challenges to Wisconsin’s ban on selling home-baked goods, Milwaukee’s cap on taxi permits and a Door County town’s ban on food trucks.

Since its founding over a quarter-century ago, IJ has also successfully defended school choice programs across the country, including three times at the U.S. Supreme Court. IJ is currently representing families in Tennessee seeking to protect a newly established scholarship program and challenging discriminatory scholarship programs in Maine, Vermont and New Hampshire.

Federal Court Approves Settlement, Restores Constitutional Rights to Victims of NYPD’s No-Fault Eviction Campaign

Arlington, Va.—On Monday, October 5, 2020, Judge Andrew L. Carter, Jr. of the U.S. District Court for the Southern District of New York approved a settlement order providing systemic relief to thousands of New Yorkers whom the city had targeted for no-fault evictions in years past. For decades, the city used its no-fault eviction program to coerce residents and businesses to enter into settlements waiving their constitutional rights. Under this week’s settlement order, the city will be barred from enforcing those no-fault settlements across the board.

“This week’s settlement order has been a long time coming,” said IJ Attorney Sam Gedge. “For years, New York City used the threat of eviction to break up families, forcing leaseholders to kick out children, spouses and siblings—many of whom were never charged with a crime. Other times, the city would force businesses to consent to warrantless searches and video monitoring. Monday’s settlement order delivers justice to the countless New Yorkers who were stripped of their constitutional rights in these ways.”

Through a program dating back to the 1990s, the New York Police Department often threatened to evict businesses and residents when somebody—even a total stranger—committed a crime at or near their property. Once eviction proceedings were underway, New York City’s prosecutors would then bully the businesses and residents into signing away their constitutional rights in order to avoid eviction. Parents would have to agree to bar their children from their homes. Businesses would have to agree to warrantless searches. Others would have to agree to waive judicial oversight of future sanctions imposed by the NYPD.

READ THE STIPULATION AND ORDER OF SETTLEMENT 

Laundromat owner Sung Cho learned about these practices the hard way. After undercover police officers came to Sung’s laundromat and offered to sell stolen electronics to his customers, the NYPD threatened to evict him from his business. The city said it would let him stay if he agreed to three demands: waive his Fourth Amendment right against warrantless searches, grant police unlimited access to his security camera system, and allow the NYPD to impose sanctions for alleged criminal offenses even without any opportunity for a hearing before a judge. Faced with eviction, he reluctantly settled on the city’s terms.

After Cho—along with co-plaintiffs David Diaz and Jameelah El-Shabazz—teamed up with the Institute for Justice (IJ) to challenge settlements like these, the city overhauled its no-fault eviction practices in May 2017. But thousands of New Yorkers remained bound by unconstitutional settlements that the city had extracted in the past. In changing its law, the city left them behind.

Monday’s settlement order grants relief to those thousands of New Yorkers. Going forward, the city has agreed that the NYPD “shall not enforce or seek to enforce the terms of any Stipulation of Settlement” secured in any pre-May 2017 no-fault eviction cases. The city also agreed to send notice of the settlement to the trial courts of the five boroughs, to the NYPD’s Civil Enforcement Unit, and to properties targeted for no-fault evictions going back to January 2014.

“This week’s settlement is a victory not just for me, but for everyone like me,” said Cho. “The city’s no-fault eviction program treated me like a criminal when I did nothing wrong. Many other New Yorkers faced the same treatment, and the settlement ensures that their rights will be respected going forward.”

“This lawsuit has sought to vindicate a simple principle,” said IJ Senior Attorney Rob Johnson. “The government shouldn’t be using the threat of eviction to force people to waive their constitutional rights. The settlement entered this week secures the rights of thousands of New Yorkers who were targeted by the city’s no-fault eviction program.”

The Institute for Justice is a nonprofit, public interest law firm that fights for property rights nationwide. In a class action against the City of Philadelphia and its law-enforcement agencies, IJ ended a similar practice by the Philadelphia District Attorney’s Office in coercing property owners to waive constitutional rights. Currently, IJ is also challenging a compulsory-eviction program in Granite City, Illinois. IJ was joined in Sung Cho v. New York City as local counsel by Ana-Claudia Roderick of Kilpatrick Townsend & Stockton LLP.

North Carolina Shelter Sues for Right to Offer Private Charity on Private Property

When the Catherine H. Barber Memorial Shelter applied for a zoning permit to open at a new facility in North Wilkesboro, its board of directors was confident that the town would grant the permit. After all, the building is in an ideal location, near businesses and public transit but far from residential areas, and it meets the town’s requirements for homeless shelters. They assumed they would get the permit and could then shift to renovating the space to meet their needs. But one thing they didn’t expect was the town Board of Adjustment to break its own rules—as well as state law and the Constitution—to find a reason to deny the permit.

Citing the shelter’s supposed lack of “harmony” with the community, among other reasons, on September 9, 2020, the Board of Adjustment rejected the shelter’s application. Now, with the help of the Institute for Justice, the Barber Shelter is fighting back. Today it filed a lawsuit to the challenge the Board’s denial and stand up for the shelter’s right to use private property for private charity.

“There is not a ‘harmony exception’ to the Constitution’s protection of private property,” said Diana Simpson, an attorney at the Institute for Justice, which represents the Barber Shelter. “The Supreme Court has made it clear that when the government limits people’s property rights, it must follow the rules and have a rational reason for imposing those limitations. The Town of North Wilkesboro and its Board of Adjustment could not point to a single good reason to reject the Barber Shelter, but they denied the permit anyway. From their actions, it is clear that they just don’t want a homeless shelter anywhere.”

The Catherine H. Barber Memorial Shelter opened its doors more than three decades ago. As the only shelter in all of Wilkes County, N.C., most clients are experiencing temporary homelessness due to acute economic distress, domestic abuse, or a family breakdown. Its goal is to transition people as quickly as possible to more long-term arrangements, working with local social services agencies to help people access resources and get back on their feet.

In search of new space, the Barber Shelter was relieved when a local dentist offered to donate his 3,000 square foot office building. It is in an ideal location—in the Highway Business district, just as the zoning code requires; its immediate neighbors are a mix of non-residential uses, such as a cell-phone store and gym; it is near public transit; and the state just built new sidewalks along the road. In other words, the property completely satisfies the town’s zoning requirements.

But that is not enough for the Town of North Wilkesboro, which has taken steps in recent years to remove people in need from visibility. Until 2018, shelters were allowed without a special permit. But after getting wind that a nonprofit from a neighboring county was considering building a shelter in North Wilkesboro, the town amended its zoning code to add specific requirements for homeless shelters, including that they obtain a conditional-use permit from the town’s Board of Adjustment.

The Barber Shelter’s conditional-use permit application objectively satisfied the zoning code’s homeless shelter ordinance. Even the Board of Adjustment agreed: “[T]he issue here is that it meets the zoning requirements, but that doesn’t mean it belongs there,” said Board of Adjustment Chair Lisa Casey. So the Board of Adjustment came up with irrational reasons to deny the permit. One such reason? The supposed danger of the proximity of the Barber Shelter to the road and sidewalks, despite the fact that the zoning code requires shelters be next to busy roads with sidewalks.

“All we want to do is serve our clients and our community,” said Barber Shelter Chair Elizabeth Huffman. “It isn’t right that the town is making up reasons to keep us out.”

The lawsuit asks the court to hold that the Barber Shelter’s constitutional rights are violated by the town requiring that homeless shelters obtain a conditional-use permit, even though similar uses, like drug rehabilitation facilities, don’t need one. It also argues that the Board of Adjustment violated the U.S. Constitution in denying the Barber Shelter a conditional-use permit based on irrational reasons not supported by evidence.

“The principles of this case affect Americans everywhere,” said IJ Attorney Alexa Gervasi. “Allowing the Board’s decision here to stand paves the way for zoning boards to invent irrational reasons to deny any applicant their permit, regardless of their proposed use.”

In recent years, the Institute for Justice has particularly focused on the abuse of zoning laws through excessive fines and fees to deny freedom and opportunity to those of modest means. This case expands on that work.

“In such difficult times, it is more important than ever that officials and courts respect the basic rights to equal protection and property ownership that have enabled so many to escape poverty and chart their own courses,” added IJ Senior Attorney Jeff Rowes.

Six South Side Businesses Selected for Finals in Pitch Showcase

CHICAGO—Six South Side businesses will compete November 5 in the finals of the seventh annual South Side Pitch. The pitch showcase is transforming for this year, highlighting existing businesses that are taking on the challenges of 2020 in new and unique ways. The contest is going online this year to keep contestants, judges and the audience safe. The six finalists below will compete to win several prizes, including a total of $20,000 in cash prizes—nearly double the amount awarded last year.

  • Kido – Children’s shop focused on representation and inclusivity in the South Loop.
  • Lemonade Land – Pop-up market for micro Black-owned businesses in the South Shore, Greater Grand Crossing, and Woodlawn areas.
  • Maestri Tutoring – Bilingual tutoring center for working-class families in Pilsen.
  • New Magnolia Garden Center – A U-pick farm and garden center located in Back of the Yards.
  • TheBlackMall.com – A marketplace of Black-owned businesses that includes an online business directory and a brick-and-mortar shop in Chatham. (This business earned its spot by winning the most votes from the public in the semi-final round.)
  • Wesley’s Shoes – Sit-and-fit family shoe store serving customers since 1970 in Hyde Park.

“Entrepreneurship is the way to reclaim our communities and be the leaders our children need,” said Keewa Nurullah, owner of Kido. “South Side families deserve bright, colorful spaces and shop owners who treat them with respect.”

“Small businesses are the heart of South Side communities and we need to come together to see them through these tough times,” said Amy Hermalik, the associate director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago. “South Side Pitch has long shined a spotlight on entrepreneurs looking to take their first steps into the business world, but this year we thought it was critical to recognize how existing business are showing entrepreneurial spirit in tackling the unique challenges of 2020. We have a great group of finalists and we can’t wait to hear their pitches.”

South Side Pitch allows incredible entrepreneurs to share their success stories and the impacts their businesses have in a “Shark Tank”-style contest. Prior winners have used their prizes to expand their businesses and create new jobs. Last year’s first-place winner, Dinobi Detergent, used its prize money to increase its marketing efforts and invest more in its product. Since winning, Dinobi Detergent has expanded to more retailers and several online platforms.

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

Case Appealed to Supreme Court Seeks to Prevent Widespread Harassment Of Nonprofit Donors

America’s Tradition of Donor Privacy in Jeopardy

Arlington, Va.—Can the government demand to know your name and home address merely because you’ve contributed to an organization you believe in? Unless the U.S. Supreme Court accepts and overturns the case of Americans for Prosperity Foundation v. Becerra, that is exactly what will take place in California—opening the way for other states to do likewise, and putting the safety of donors and the financial footing of nonprofits at risk.

The threat to donor safety and the financial wellbeing of nonprofits is not theoretical.

The U.S. Supreme Court has long held that the First Amendment protects the privacy of charitable donors. In the 1950s, the Court rejected an attempt by the State of Alabama to force the NAACP to turn over the names of its donors, recognizing that the risk of donors being harassed or threatened would undermine the civil rights organization’s base of financial support. But in September 2018, the 9th U.S. Circuit Court of Appeals upheld a similar disclosure requirement in the Americans for Prosperity (AFP) case.

“Multiple people associated with Americans for Prosperity have received death threats or otherwise been harassed,” said Paul Sherman, a senior attorney with the Institute for Justice, which filed a friend of the court brief on behalf of AFP urging the Court to take up the case. “At the same time, California has done a terrible job of keeping the nonprofit records it receives confidential; Americans for Prosperity’s expert witness was easily able to access all 350,000 of the supposedly ‘confidential’ documents stored on the Attorney General’s website.”

The 9th Circuit downplayed concerns that AFP donors might face harassment if their identities were known, citing the fact that the state does not intentionally disclose that information to the public.

Sherman said, “A fundamental purpose of privacy of association is to protect citizens from what government might do with that information. At a time when trust in government is near historic lows, charitable donors have every reason to want to keep their identities private. If the government thinks that information is necessary to investigate violations of the law, it can do what the government is supposed to do: get a warrant.”

Sherman added, “The 9th Circuit’s ruling sets a dangerous precedent. It expands the Supreme Court’s precedent on disclosure for political campaigns to cover all charitable groups, regardless of whether they comment on political candidates or ballot issues. It covers not only 501(c)4 organizations, but 501(c)3’s as well. But under the First Amendment, privacy is the rule when it comes to freedom of association, and compelled disclosure is the exception—not the other way around.”

Said Sherman, “Imagine being a supporter of Planned Parenthood and living in the Bible Belt, or the NRA and living in San Francisco. If the government can collect your name and home address and potentially expose that information to the world, you’re going to think twice about supporting such groups.”

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

The Supreme Court has requested that the U.S. Solicitor General file a brief expressing the federal government’s views on the case, and has relisted the case for consideration multiple times—both considered strong signals that the Court is considering granting review in the case. A ruling on whether to take the case is expected early in the October 2020 Supreme Court term.

California Eases Restrictions on Nurse Practitioners

Late Tuesday, California Gov. Gavin Newsom signed a bill that will significantly ease restrictions on nurse practitioners (NPs), nurses with advanced degrees who can diagnose symptoms, treat patients and prescribe medicine. Prior to reform, California was one of 22 states that barred NPs from working, or even volunteering in hospitals, unless they were supervised by or collaborated with a physician. 

But under the newly signed AB 890, NPs who have been in practice for at least three years, will finally be able to operate independently, without physician supervision. Once the new law takes effect in 2023, California will become the 16th state to grant NPs with full practice authority following a transition period. Another 13 states let NPs practice independently immediately after becoming licensed. 

“Physician supervision requirements are completely unnecessary and are hurting states’ efforts to respond to Covid-19,” said Institute for Justice Senior Attorney Erica Smith, who submitted testimony in favor of the bill. “Nurse practitioners want to be able to volunteer now, but they are getting caught in red tape.”

Nurse practitioners across the country have struggled to find supervising physicians, either because of limitations in their medical malpractice insurance, or an unwillingness to take on additional responsibilities during this chaotic time. In addition, NPs must often pay physicians thousands of dollars for supervision.

Yet research from numerous organizations across the political spectrum, including the Brookings Institution and the American Enterprise Institute, have found that empowering NPs could have significant benefits for health care efficiency without sacrificing quality of care. Instead, the evidence suggests that restrictions on nurse practitioners serve only to raise prices and protect doctors from competition. 

With many hospitals in desperate need of medical personnel during the Covid-19 pandemic, it may also cost lives. For this reason, multiple organizations and individuals, including the U.S. Secretary of Health and Human Services, have called on states to lift restrictions on NPs during the pandemic.

Tennessee Parents Vow to Appeal Court Ruling Against School Choice Program

Arlington, Va.This afternoon, The Court of Appeals of Tennessee at Nashville ruled that the Tennessee Education Savings Account Pilot Program Act, enacted in 2019 to give thousands of Tennessee families greater school choice, is unconstitutional under the Home Rule Amendment of the Tennessee Constitution. Natu Bah and Builguissa Diallo, two Tennessee parents who planned to use the ESA, partnered with the Institute for Justice (IJ) to defend the program from a constitutional challenge levied against it in February. They have vowed to appeal this ruling to the Tennessee Supreme Court.

“Today’s ruling treats Tennessee children as mere conduits for channeling money into school district budgets,” said IJ managing attorney Arif Panju, “and it ignores that the Tennessee Constitution requires government to serve the people, not extinguish their educational options. We will immediately appeal to the Tennessee Supreme Court.”

The ESA Program was passed in 2019 by the Tennessee Legislature. The program offers a lifeline to families that would like to leave public schools that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying lower- and middle-income families like a family of four whose annual income is less than $66,950.

The February lawsuit was brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education.

Second California Man Joins Suit for the Right to EMT Certification

SACRAMENTO, Calif.—Fernando Herrera served in one of California’s inmate fire camps. He credits the experience with helping him turn his life around. Even so, Fernando is unable to get certified as a first responder because of his record. Now, Fernando is joining an existing lawsuit from the Institute for Justice (IJ) that challenges California’s ban on EMT certification for people with felony convictions.

“I made mistakes as a teenager and I regret the things I did,” said Fernando. “But serving in the fire camps showed me that I can give back to my community. Unfortunately, California says I can never get certified as an EMT, even though I was good enough to be a first responder while in prison.”

Fernando grew up in Marysville, California, and got involved with what he calls the “street lifestyle” when he was 14. While in detention, Fernando and his friends attacked another boy they had previously assaulted. Prosecutors threatened a host of charges related to the fight and previous incidents, prompting Fernando to take a plea deal that admitted to two adult felonies.

Following his time in custody, Fernando served with the California Conservation Corps, a state program that provides development for young adults through work in fire protection, land maintenance and other conservation work. Serving in the Corps, Fernando helped battle the 2018 Camp Fire, the deadliest wildfire in California history.

California categorically bans anyone with two or more felonies from ever applying for an EMT certification. EMTs are not paramedics and the certification does not grant one the right to drive ambulances or enter homes. Instead, it is a basic certification proving that an individual can administer non-invasive lifesaving techniques such as CPR. More than 60,000 Californians are certified EMTs and they work in a diverse variety of careers.

“California wants to exclude Fernando for the rest of his life because of things he did when he was 14 and 15,” said IJ Attorney Andrew Ward. “Fernando served his time and now he wants to serve the public. California should let him.”

California recently created a new law to let people apply to expunge their records if they served in the prison fire camps, A.B. 2147. However, the new law is limited. Most people with felony convictions still cannot apply for an EMT certification, regardless of rehabilitation.

“California took a step in the right direction by allowing at least some people who served in inmate fire camps to get into firefighting careers,” said IJ Attorney Joshua House. “However, the irrational EMT ban remains in place, so our lawsuit will continue, now with an additional client.”

Fernando and current plaintiff Dario Gurrola were two of the thousands of inmates that California annually employs at fire camps across the state. Non-violent, minimal-custody inmates are trained to work on fire lines and perform conservation and community service projects that reduce the threat of fires and flooding. Volunteers at the camps receive the same training as seasonal firefighters and do much of the same work.

After Being Arrested for Speaking Out, a Texas Woman Sues to Hold Gov. Officials Accountable

Last year, Sylvia Gonzalez—a 72-year-old retiree—was elected to the Castle Hills, Texas city council on the promise that she’d work to make the city more responsive to citizens’ needs. But Gonzalez’s reform agenda did not sit well with the incumbents—representing the city’s entrenched interests—including the mayor and city manager, who residents complained did little to address their concerns. Rather than listening to her concerns, officials abused their power to retaliate against Gonzalez.

Within weeks of winning her election, the harassment began. First, the city attorney, who was aligned with the mayor and the city manager, claimed she wasn’t properly sworn in and replaced Gonzalez on the city council with the woman she’d just beaten. When a judge reinstated Gonzalez, the city officials didn’t give up.

In fact, that was only the beginning. In the midst of their attempt to unseat her, the mayor and police chief used bogus charges and a rarely-used law to have Gonzalez arrested, booked, and thrown in jail—but Gonzalez had done nothing wrong. Once the county prosecutor got involved, he dropped the case against her.

Finally, after beating back the city twice, a group of citizens aligned with the mayor filed a lawsuit claiming Sylvia was incompetent. Sylvia stood her ground and won—but by then the damage had been done. Sylvia’s mugshot had been splashed across the news and her reputation dragged through the mud. Exhausted—with tens of thousands of dollars in legal bills—she stopped the fight to reclaim her seat.

Sylvia may have given up on her seat, but she hasn’t given up on her ultimate mission to hold the city officials accountable. Today she partnered with the Institute for Justice (IJ), a national public interest law firm, to file a lawsuit against the city officials who abused their power and violated Sylvia’s First Amendment right to speak out against the government.

“Castle Hills officials seem to believe that they are above the law because they are the law,” said Anya Bidwell, an attorney at the Institute for Justice, which represents Sylvia. “But criticism isn’t criminal, it is a constitutional right. And it is patently unconstitutional for an official to use the police to stifle speech and retaliate against political opponents.”

From the upper echelons of the federal government through state bureaucrats and inspectors to local police and prosecutors, Americans are becoming increasingly aware of the role courts play in holding officials accountable for illegal or unconstitutional actions. Unfortunately, in many circumstances, courts have held that government officials are immune, but that is beginning to change. In November, the Institute for Justice will argue a case at the Supreme Court that seeks to hold government officials accountable for beating an innocent college student because they unreasonably misidentified him as a fugitive.  And a growing number of federal appeals courts have ruled that official immunity is not absolute: When officials flagrantly violate citizens’ rights—as they did in Castle Hills—they can be held accountable in court.

“When the government officials who are charged with upholding the law break it, they have to be held accountable,” said IJ attorney Patrick Jaicomo. “What good are rights without legal remedies? The courts are a necessary check on government power. This lawsuit seeks to give Sylvia an opportunity to have her day in court and stand up for her constitutional rights.”

“I was arrested and thrown in jail because city officials didn’t like that I criticized them,” said Sylvia Gonzalez, the plaintiff in this lawsuit. “But being able to disagree with the government is at the heart of our democracy, and I’m here to stand up and make sure others are not silenced the way I was.”

Bidwell added: “A hallmark of the American experiment is that the average citizens can step up and run for local elective office. In many ways, Sylvia is a model citizen. She doesn’t have so much as a speeding ticket on her record, and yet she was arrested and thrown in jail for standing up to the powerful and speaking her mind. This is not Putin’s Russia, where critics are silenced, this is America. We’re confident the courts will see this for what it is: a flagrant abuse of power that must be checked.”

The lawsuit asks the court to hold that Sylvia’s constitutional rights were violated when the government arrested her in retaliation for her speech, as well as unspecified damages to cover the money Sylvia spent to defend herself against the onslaught by the city. The lawsuit is part of IJ’s Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then government officials must follow the Constitution.

South Side Pitch Competition Transforms to Help Businesses Confronting the Challenges of 2020

CHICAGO—Small businesses across the South Side of Chicago are finding creative solutions to confront the economic challenges of 2020. For a seventh year running, the South Side Pitch business competition will highlight inspirational individuals determined to improve their lives and their community. However, unlike the past, this year the competition will focus on existing small businesses that make their neighborhoods great. Also, for the first time in the competition’s history, the public is being invited to pick one of the finalists among the 23 semi-finalists.

Voting is open today at the Institute for Justice Clinic on Entrepreneurship’s Facebook page and South Side Pitch’s YouTube page. Pitching videos from all of the semi-finalists are available at these pages, and Facebook and YouTube users can vote for their favorites by liking videos. The video with the most total likes will automatically qualify for the finals. You can also learn more about each semi-finalist by visiting: https://southsidepitch.com/2020-semi-finalists/.

“While 2020 has been a challenging time to run or launch a business, we know that there are many entrepreneurial South Siders who are creating opportunities out of challenges,” said Amy Hermalik, the associate director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago. “We do not want to miss the opportunity to shine a light on the incredible contributions they make every day and we want all of Chicago to be able to participate. We hope that by going online this year, even more people across Chicago and around the world can see the dynamism and strength of the South Side on display.”

South Side Pitch allows incredible entrepreneurs to share their success stories and the impacts their businesses have in a “Shark Tank” style contest, with the final contestants presenting their pitches during an online event on November 5. Applicants compete to win several great prizes, including a total of $20,000 in cash prizes, nearly double the amount awarded last year.

This year, South Side Pitch welcomed entrepreneurs past the idea stage—established businesses with a track record of serving customers —to apply. Finalists will have the opportunity to present online in November.

Prior winners have used their prizes to expand their businesses and create new jobs. Last year’s first-place winner, Dinobi Detergent, used its prize money to increase its marketing efforts and invest more in its product. Since winning, Dinobi Detergent has landed in stores and several online platforms. Dinobi Detergent owners Augustine and Sylvia Emuwa said, “The Southside pitch funds helped to solidify our direction as a startup. We went from a concept to a business that continues to grow and gain exposure. We are so happy to have been a part of this amazing community impact effort.”

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

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

After a Judge Overturned Wilmington’s Vacation Rental Regulations, City Asks Court If It Can Continue to Break the Law While It Appeals

Wilmington, N.C.—Wilmington’s vacation rental owners will have to wait a little longer to celebrate their right to rent their home. Following a decisive win on Tuesday, yesterday the city announced it would appeal the decision and asked the court to suspend enforcement of the order until the appeals process is complete. The city argued that compliance with the ruling would impose a host of administrative headaches and the court agreed.

“It shouldn’t be an administrative headache to not fine or prosecute a homeowner who wants to exercise their right to rent their property,” said Institute for Justice Attorney Ari Bargil. “It is unfortunate and frustrating that the city refuses to accept that its law was illegal, but we won a decisive victory on Tuesday and we’re confident that the appeals court will agree and put an end to Wilmington’s illegal law once and for all.”

The Institute for Justice (“IJ”) represents Peg and David Schroeder in their challenge against the city’s ordinance that established a lottery system for vacation rentals in Wilmington. The Schroeders lost their right to rent their property when the lottery awarded that right to one of their neighbors. Under the ordinance, two property owners within 400 feet of one another could not both rent at the same time. The Schroeders challenged the city’s ordinance, arguing that it was unconstitutional and violated state law. On Tuesday, Judge Harrell entered an order siding with the Schroeders and finding that state law preempted the city’s ordinance.

“It is terribly unfortunate for all of the people who were so relieved to learn on Wednesday they could again resume earning income from their vacation rentals only to learn a day later that they had again been deprived of that right,” said Peg Schroeder. “We are hopeful that the city will use this time efficiently to restore citizens’ rights. If not, we will not give up.”

“Obtaining a stay pending appeal is fairly commonplace in cases like this,” continued Bargil. “As frustrating as it is that the city refuses to recognize that it was breaking the law, we will continue to standby the Schroeders and all of Wilmington’s homeowners until this ordinance is invalidated.”

Police Used an Unconstitutional Law to Arrest a Citizen-Journalist, and a Texas Court Let Them Off the Hook

Arlington, Va.—Police officers swear to uphold the U.S. Constitution, but can they be held accountable when they blatantly violate that oath? The 5th U.S. Circuit Court of Appeals will soon consider whether a citizen-journalist in Texas can seek justice after a retaliatory arrest and prosecution. The Institute for Justice (IJ), as part of its recently launched Project on Immunity and Accountability, has filed an amicus brief in Villarreal v. Laredo urging the court to hold officers responsible for violating First Amendment rights.

Since 2015, Priscilla Villarreal has operated as a one-woman news outlet. She cruises around her hometown of Laredo, Texas in her blue pick-up truck, seeking out crime scenes, traffic accidents, and immigration raids. Once she arrives, she livestreams the events to her Facebook page as they unfold, along with commentary that is sometimes critical of local law enforcement. She calls herself “Lagordiloca,” an endearing term that means “the big crazy lady” in Spanish, and she is arguably the most high-profile journalist on the streets of Laredo.

But though she is something of a folk hero in Laredo, her criticisms made her unpopular with the police. They began harassing and intimidating her, and ultimately issued a warrant for her arrest based on an obscure state law against “misuse of official information.” Essentially, they twisted the law to criminalize Villarreal’s routine newsgathering techniques. They cited two instances where she had asked a police officer to confirm information that she had already collected on her own. Pulitzer Prize-winning reporters do the same thing every day.

The law is rarely used to prosecute anyone and a judge tossed her criminal case three months later, ruling that the law was unconstitutionally vague.

But when Villarreal filed a civil lawsuit to remedy the retaliatory, premeditated violations of her constitutional rights, the federal trial court ruled against her relying on a doctrine called “qualified immunity.” Even though the law the police used to arrest her was clearly unconstitutional, the court let the officers off the hook.

Qualified immunity is a judge-made rule, invented by the Supreme Court in 1982. The doctrine shields bad actors from personal responsibility by holding government officials liable only if their specific actions had already been held unconstitutional in an earlier court case.

“Proponents of qualified immunity defend the doctrine by arguing that second-guessing police could have a chilling effect, causing officers to hesitate in life-or-death situations. But that reasoning, although dubious, doesn’t apply here,” said IJ constitutional law fellow Caroline Grace Brothers. “This was not a split-second decision. This was planned. Laredo law enforcement specifically targeted Villarreal for retaliation.”

Throughout the 19th and early 20th centuries, before the doctrine of qualified immunity was created, courts held government officials liable for violating constitutional rights, even when they were enforcing an unconstitutional law. Today, many federal appellate courts have embraced an exception to modern qualified immunity doctrine that echoes that historical rule: if a law is patently unconstitutional, then government officials are not entitled to qualified immunity for enforcing that law.

“No government official should need a federal court to tell them that arresting someone for asking a police officer to corroborate newsworthy information violates the First Amendment,” said IJ attorney Jaba Tsitsuashvili. “If ignorance of the law is no excuse for ordinary people, then officers of the law should be held accountable for violating basic constitutional principles.”

In addition to letting the police violate Villarreal’s constitutional rights without consequences, the trial court’s holding also rested on the premise that if a person asks for and receives newsworthy information from a government official who is not the government’s designated spokesperson, she can be arrested and prosecuted—even if the only thing she did was ask for and receive facts.

“That reasoning is dangerous to a free society because it permits the government to make itself the gatekeeper and arbiter of newsworthiness,” said IJ attorney Anya Bidwell. “It threatens to chill core First Amendment activity and make us all less knowledgeable about government actions. In the brief we filed today, IJ urges the Court of Appeals to repudiate that holding.”

The Institute for Justice’s Project on Immunity and Accountability is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, the government must follow the Constitution. In addition to filing amicus briefs, like this one, IJ has also filed petitions with the Supreme Court on behalf of Americans whose rights were violated by police but were barred from seeking redress due to governmental immunity. One of those cases, Brownback v. King, is scheduled for oral argument in November.

IJ Will Appeal Texas Border Forfeiture Case to U.S. Supreme Court

Today, a federal appeals court ruled that law enforcement agencies can seize and keep Americans’ cars indefinitely without giving the owners an opportunity to plead their case in front of a judge. The decision from the Fifth Circuit Court of Appeals is a blow to the constitutional rights of car-owners in Texas, Mississippi and Louisiana, including Gerardo Serrano, who brought the case with the help of attorneys at the Institute for Justice.

Gerardo’s case started in 2015, when he was traveling to Mexico to visit family in his brand-new F-250. As he was crossing the border, Customs and Border Protection officers searched his truck, where they found five low-caliber bullets he had forgotten in the bottom of his center console. Calling the bullets “munitions of war,” the agents seized his truck. Five forgotten bullets are all it took for the government to argue that Gerardo was an international arms smuggler, rob him of his property and refuse to take the matter before a judge for years. The truck sat in a government impound lot until 2017, when IJ got involved in Gerardo’s case. In all of that time, Gerardo never had an opportunity to plead his case before a judge.

“When the government takes someone’s property, the owners should have an opportunity to challenge the seizure in court immediately, not wait days, months, or, as in Gerardo’s case, even years for the ability to plead their case in court,” said Anya Bidwell, an attorney at the Institute for Justice, which represents Gerardo. “The Supreme Court has already said that there must be a prompt hearing when you’re arrested. It also requires pre-seizure hearings for real estate. It makes no sense for the Fifth Circuit to hold that a car is somehow different and you are not entitled to quickly see a judge and contest its seizure.”

While today’s decision is disappointing, Gerardo is not done fighting. He and the Institute for Justice will now ask the United States Supreme Court to take up the case. In a similar case, a separate federal appeals court determined that property owners do, in fact, have a right to quickly challenge a seizure in court. Writing for the court, then-Appeals Court Judge Sonia Sotomayor held that these so-called “prompt post-seizure hearings” are required by the Constitution.

“I’m doing this for my children,” said Gerardo about his decision to go to the United States Supreme Court. “No one should have to go through what I’ve gone through. I just wanted to have my day in court, not wait for years to get my truck back. This is America. We’re a country of laws and the government cannot take someone’s property forever just because they want to. That’s what the Constitution says. I just hope the Supreme Court takes up my case.”

“Civil forfeiture often occurs outside the courts, as property owners simply cannot wait months or years to see a judge,” said IJ Senior Attorney Rob Johnson. “The result is 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, name