Category Archives: Opinions

Individual Rights Are Expanding In Tennessee

By Daniel A. Horwitz

The past week has been an excellent one for individual rights in Tennessee, with improvements coming in several independent areas:

First, the Tennessee General Assembly has passed the State’s first meaningful anti-SLAPP law to protect Tennesseans’ right to free speech. The reform will instantly have the effect of deterring people from filing baseless lawsuits aimed at censoring critical commentary and severely punishing people who do. Thus, effective July 1, 2019, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world will be able to wield a powerful protective weapon against foolish bad actors’ efforts to censor and intimidate them through frivolous, failed lawsuits.

Second, following a 2017 lawsuit to terminate a White County, Tennessee inmate sterilization program, the United States Court of Appeals for the Sixth Circuit has ruled that sterilization-for-sentencing-credits arrangements like White County’s are illegal. “Requiring inmates to waive a fundamental right to obtain a government benefit impermissibly burdens that right” in contravention of the Fourteenth Amendment, the Court’s opinion reads. “This decision sends a clear, important message that should never have been necessary in the first place: Inmate sterilization is illegal and unconstitutional,” the inmates’ attorney, Daniel Horwitz (the author), said in a statement to The Tennessean on the ruling.

Third, the Tennessee General Assembly passed one of Governor Bill Lee’s central legislative priorities—a substantial reduction in the current expungement fee that the state assesses people for the privilege of expunging convictions and diverted offenses on their criminal records. Tennessee’s expungement law, which enables people to expunge up to two qualifying convictions, provides an extraordinarily important mechanism for people to move on from an interaction with the criminal justice system and eliminate their criminal record history such that—as a matter of law—it “never occurred.” Although the reform does not wholly eliminate all applicable expungement fees, it reduces the total fee that people will have to pay to expunge a conviction or diversion from $280 to $100 going forward.

These important reforms each move individual rights in the right direction. They reduce private litigants’ ability to abuse the legal process, they curtail the government’s power to infringe upon people’s constitutional rights, and they help ensure that people will not suffer a life sentence for minor criminal convictions solely because they lack the ability to pay a few hundred dollars to expunge their qualifying convictions. Hopefully, progress like this is only a beginning.

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“Short Circuit” for July 31, 2015

Each week, the Institute for Justice — a libertarian public interest law firm that specializes in constitutional litigation — issues a fun “short circuit” newsletter summarizing the interesting U.S. Circuit Court opinions of the week (you can subscribe by clicking here).   This week’s summary, authored by John K. Ross, is re-posted below:
  • Fairfax, Va. nurse engages in sexual innuendo in the workplace. For shame! NLRB: Many staff members enjoyed the odd ribald joke. In fact, the hospital actually fired her for asking management—in concert with other nurses—for certain accommodations. D.C. Circuit: Agreed. Fun Fact: No union = no problem. The NLRB has jurisdiction.
  • To impose a penalty, in this case for late paperwork, four of six FEC commissioners must vote in favor of enforcement. Is it cool that failing to vote counts as a yes vote? D.C. Circuit: It gives us pause, but we need not resolve the issue just now.
  • Inmate Liaison Committee member at Fishkill, N.Y. prison files grievance on behalf of prisoners, is sent to solitary confinement for 90 days. Retaliation? Second Circuit: That’s a possibility.
  • Fifth Circuit: No new trial for a former New Orleans, La. police officer convicted of burning the body of a police-shooting victim to cover up the victim’s death in the aftermath of Hurricane Katrina.
  • Litigation pro-tip from the Sixth Circuit: When challenging an ordinance that requires your client to mow the curb strip in front of his house, maybe don’t compare the city to North Korea, “a totalitarian regime that notoriously tortures criminal defendants, executes non-violent offenders, and sends those accused of political offenses to ‘brutal forced labor camps.’”
  • Should the prevailing party in a just-compensation case involving abandoned property receive attorneys’ fees even if the district court doesn’t feel like awarding them? In a word, yes, says the Seventh Circuit.
  • A strip club in Winnebago County, Wis., successfully demonstrates that the county’s permitting scheme for adult businesses is an unconstitutional prior restraint. Can the county regulate the club under a new zoning code, or is the club now a preexisting nonconforming use? Seventh Circuit: Now that the First Amendment thing is settled, let the state courts figure out the rest.
  • DEA agents seize $239,400 cash money from train passenger. He’s free to go; they don’t find any contraband. Gov’t: Sucks for you, guy. You don’t have standing to try and get the money back. Seventh Circuit: Yeah, no, he does.
  • In which the Seventh Circuit expresses concern about the reliability of drug doggies but gives no succor to man sent away for 20 years for cocaine possession.
  • Officers scuffle with detainee in Ferguson, Mo. jail. After subduing detainee, officers continue to kick and beat him. Blood gets on the officers’ uniforms, so the detainee is charged with damaging property—among other things. Detainee sues, alleges excessive force. Eighth Circuit: Contra the district court, a concussion, scalp laceration, and bruising cannot be considered de minimis for qualified immunity purposes.
  • Convict to judge: I hope you die slowly of a painful disease. U.S. Marshals to convict: We’re going to arrange for you to be mistreated. Eighth Circuit: No qualified immunity for the marshals. Fun fact: If you get invited to a “blanket party,” do not go.
  • Hawaiians challenge the “cabotage” requirement of the Jones Act, under which all shipping between domestic ports must be carried out by ships made in America and owned by Americans, alleging that it forces them to pay higher prices for goods.Ninth Circuit: Even if you had standing, which you don’t, you would still lose.
  • A 370 lb. mountain goat with a nasty attitude and no fear of humans menaces visitors and rangers in Olympic National Park for years, then finally kills a hiker. Ninth Circuit holds negligence suit is barred by the Federal Tort Claims Act’s “discretionary function” exception. Dissent: Doing nothing to protect the public from an unruly beast the size of an NFL lineman was not a “policy” choice—it was garden-variety negligence.
  • After having previously concluded that the First Amendment does not apply to a Florida prohibition on doctors inquiring about their patients’ gun ownership, a panel of the Eleventh Circuit changes its mind: The First Amendment applies, but the prohibition is still constitutional. (Interested in occupational speech? Read IJ’s latest cert. petition to the U.S. Supreme Court.)
  • And in en banc news, the Third Circuit will reconsider whether the government must file a forfeiture petition if it wants to keep 10 ultra-rare coins given to Treasury officials for authentication and then not returned to the owner.

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