[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in NASA v. Nelson [oral arguments transcript, PDF] on informational privacy. The issue is whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use or when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility. The case arose in 2007 when NASA [official website] began requiring background checks for all contract employees. A group of 28 employees filed suit seeking an injunction, but their claims were rejected by the district court. The US Court of Appeals for the Ninth Circuit reversed [JURIST report] and denied [opinion, PDF] an en banc rehearing. Counsel for NASA argued, “the background checks’ mere collection of information with accompanying safeguards vitiates no constitutional privacy interest. These checks have been going on for millions of employees for dozens of years. They are part of the employment process. They are manifestly not roving checks on random individuals.” Counsel for the respondents argued that the background checks violate their rights under the Fifth Amendment.

In Michigan v. Bryant [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are non-testimonial evidence, rendering them admissible in court. The Michigan Supreme Court ruled [opinion, PDF] that the “primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution,” concluding that the statements constituted inadmissible testimonial hearsay. Counsel for the petitioner, the state of Michigan, argued that the statements should be admissible. Counsel for the US government also argued on behalf of the petitioner as amicus curiae. Counsel for the respondent argued that admitting the statements would violate the Confrontation Clause of the Sixth Amendment.

In Los Angeles County v. Humphries [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a plaintiff must show that a constitutional violation by a public entity was the result of a policy, custom or practice of that entity before declaratory relief can be granted. The case arose after two parents were unable to have their names removed from California’s Child Abuse Central Index [official materials], a database that collects reports of child abuse, after the charges against them were dismissed. The US Court of Appeals for the Ninth Circuit found [opinion, PDF] that the inability to remove “factually innocent” suspects from the database violated their rights under the Fourth Amendment and subsequently awarded $652,000 in attorney’s fees for the appeal. The county challenged the Ninth Circuit’s ruling on the grounds that the couple failed to show that the county had adopted a policy or practice that resulted in the constitutional violation, as required by Monell v. Department of Social Services [opinion text] and that their failure to do so meant that they were not “prevailing parties” for the purposes of fee awards under 42 USC § 1988 [text]. Counsel for the petitioner argued that the Ninth Circuit erred in not requiring plaintiffs to show causation. Counsel for the respondents argued that the fact that there was an ongoing violation rendered the showing of causation unnecessary.