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Property Rights



All Reason.com articles with the "Property Rights" tag.



Published: Wed, 22 Nov 2017 00:00:00 -0500

Last Build Date: Wed, 22 Nov 2017 20:41:03 -0500

 



Thankful for Property Rights on Thanksgiving Day

Wed, 22 Nov 2017 00:15:00 -0500

Ready for Thanksgiving? Before you eat that turkey, I hope you think about why America has turkeys for you to eat. Most people don't know. Everyone's heard about that first Thanksgiving feast—Pilgrims and Indians sharing the harvest. We like the drawings of it we saw in schoolbooks—shared bounty. Fewer people know that before that first feast, the Pilgrims nearly starved. They almost starved because they acted the way some Bernie Sanders fans want people to act. They farmed collectively. But communal farming creates what economists call "the tragedy of the commons." Think about what happens if a bunch of ranchers hold land in common. Everyone brings cattle to graze. While that sounds nice, it also means every rancher has an incentive to bring lots of cattle to the pasture. They bring cow after cow until the pasture is overgrazed -- destroyed. For this week's YouTube video, I repeated an experiment economics teachers sometimes do to demonstrate the tragedy of the commons. I assembled a group of people, put coins on the floor in front of them and said, "I'll give you a dollar for each coin you pick up. But if you leave them down there for a minute, I'll give you two bucks per coin, and then three bucks. Each minute the coins increase in value by a dollar." If the group waited, they'd make more money. Did they wait? No. As soon as I said "Go!" everyone frantically grabbed for coins. No one wanted to wait because someone else would have gotten the money. Collective action makes people more greedy and short-sighted, not less. Then I changed the rules of the game. I divided the floor into segments, so each person had his or her own property. Then we played the game again. This time there was no coin-grabbing frenzy. Now patient people anticipated the future. "I want to reap the most benefit," said one. "[On the previous test] I wanted it now, whereas this is going up, and it's mine." Exactly. When you own property, you want to preserve it, to allow it to keep producing good things. That beneficial pattern disappears under collectivism, even if the collectivists are nice people. The Pilgrims started out sharing their land. When crops were ready to harvest, they behaved like the people in my experiment. Some Pilgrims sneaked out at night and grabbed extra food. Some picked corn before it was fully ready. The result? "By the spring," Pilgrim leader William Bradford wrote in his diary, "our food stores were used up and people grew weak and thin. Some swelled with hunger." Adding to the problem, when people share the results of your work, some don't work hard. The chance to take advantage of others' joint labor is too tempting. Teenage Pilgrims were especially likely to steal the commune's crops. Had the Pilgrims continued communal farming, this Thursday might be known as "Starvation Day" instead of Thanksgiving. Fortunately, the Pilgrims were led not by Bernie Sanders fans or other commons-loving socialists, but by Bradford, who wrote that he "began to think how they might raise as much corn as they could... that they might not still thus languish in misery... After much debate [I] assigned each family a parcel of land... This had very good success, because it made every hand industrious." There's nothing like private ownership to make "every hand industrious." The Pilgrims never returned to shared planting. Owning plots of land allowed them to prosper and have feasts like the ones we'll have Thursday. Private property became the foundation for building the most prosperous nation in the history of the world, a place where people have individual rights instead of group plans forced on everyone. When an entire economy is based on collectivism, like the Soviet Union was, it eventually collapses from inefficiency and misuse of resources. So this Thanksgiving, thank private property. Every day, it protects us from the tragedy of the commons. COPYRIGHT 2017 BY JFS PRODUCTIONS INC.[...]



Nebraska Regulators Approve Keystone XL Pipeline

Mon, 20 Nov 2017 13:20:00 -0500

The Nebraska Public Service Commission has voted 3–2 to allow TransCanada to route the Keystone XL pipeline through the Cornhusker State. The 1,200-mile pipeline will transport more than 800,000 barrels of crude daily from Canada's oilsands in Alberta to refineries on the U.S. Gulf Coast. The pipeline was approved by the NPSC despite the fact that 5,000 barrels of oil leaked just last week from the older Keystone pipeline in South Dakota. The commissioners did revise the pipeline's path, moving it further east from the Ogallala aquifer that underlies the Sand Hills region of the state. The pipeline has long been opposed by environmentalists worried about climate change, landowners who don't want the pipeline to cross their property, and Native American tribes concerned that spills could contaminate their water supplies. After the U.S. State Department kept sending draft environmental assessments of the project back to reviewers until they came up with the right answer, President Barack Obama denied TransCanada a border-crossing permit in 2015 by ruling that the construction the pipeline was not in the national interest. In March, President Donald Trump reversed Obama's decision. In 2012, climatologist Chip Knappenberger, who works with the libertarian Cato Institute, calculated that keeping crude from Canada's oilsands would reduce the annual increase in global temperatures due to carbon emissions by "one ten thousandths of a degree Celsius of temperature rise from the Canadian tar sands oil delivered by the Keystone XL pipeline each year." Considering that TransCanada first proposed the pipeline in 2008, when the price of oil was about double what it is today, is the project still an economically viable proposition? In statement released earlier this month, the company claimed that "commercial support for the project" will "be substantially similar to that which existed when we first applied for a Keystone XL pipeline permit." Despite the commission's approval, construction is not a done deal. Some 90 Nebraska landowners are expected to fight construction of the pipeline through their property in the courts, according to The New York Times. But the legal precedents for preventing the use of eminent domain to obtain rights-of-way for "public use" projects like pipelines is not promising. Disclosure: Back in 2011, I took a junket to the Canadian oilsands that was sponsored by the American Petroleum Institute. The institute neither asked for nor had any editorial control over my reporting of that trip. For more background, see my articles "The Man-Made Miracle of Oil from Sand" and "Conflict Oil or Canadian Oil?"[...]



Minor Violations Lead to Massive Prosecution Fees in Two California Desert Towns

Thu, 16 Nov 2017 12:15:00 -0500

A couple of cities in the California desert have found a novel and remarkably cruel way to make money—force citizens to pay for the privilege of being prosecuted by the attorneys contracting with these cities. We've seen cities across the country abuse their own citizens—particularly its poorest residents and visitors—with vicious enforcement of petty laws designed to create a revenue stream via a cascade of fines and fees. But I don't think we've seen an enforcement mechanism as nasty and cruel as the one the Desert Sun has uncovered out in California's Inland Empire. The cities of Indio and Coachella partnered up with a private law firm, Silver & Wright, to prosecute citizens in criminal court for violations of city ordinances that call for nothing more than small fines—things like having a mess in your yard or selling food without a business license. Those cited for these violations fix the problems and pay the fines, a typical code enforcement story. The kicker comes a few weeks or months later when citizens get a bill in the mail for thousands of dollars from the law firm that prosecuted them. They are forcing citizens to pay for the private lawyers used to take them to court in the first place. So a fine for a couple of hundred dollars suddenly becomes a bill for $3,000 or $20,000 or even more. In Coachella, a man was fined $900 for expanding his living room without getting a permit. He paid his fine. Then more than a year later he got a bill in the mail from Silver & Wright for $26,000. They told him that he had to pay the cost of prosecuting him, and if he didn't, they could put a lien on his house and the city could sell it against his will. When he appealed the bill they charged him even more for the cost of defending against the appeal. The bill went from $26,000 to $31,000. Brett Kelman of the Desert Sun found 18 cases in Indio and Coachella where people received inordinately high legal bills for small-time violations. A woman fined for hanging Halloween decorations across a city street received legal bill for $2,700. When she challenged it, the bill jumped to $4,200. Kelman notes that these thousands of dollars in fees came from a single court hearing that lasted minutes. Silver & Wright representatives declined to talk to the Desert Sun. One of them even claimed attorney/client privilege even though they're serving as prosecutors on behalf of city governments. But the law firm's web site makes it very clear that what happened is not a mistake. It's a law firm focused on helping cities go after private properties for "nuisance abatement" and code enforcement. Among its services is "ordinance drafting." That they offer such services matters because, according to the Desert Sun, the two cities contracted with the law firm first, and then they crafted brand new nuisance ordinances to facilitate Silver & Wright recouping the fees by billing citizens for their own prosecutions without having to go through a judge. "Cost recovery" is another emphasis of Silver & Wright's services. Here's a direct quote from their site: "Our attorneys have developed unique and cutting edge practices to achieve success for our clients and make nuisance abatement and code enforcement cost neutral or even revenue producing." [emphasis added] They're openly bragging about using prosecutions as a way to help cities make money. And then there's this buried deep in the story: Matthew Silver, one of the firm's partners, is also a vice president for the California Association of Code Enforcement Officers. He runs a private law firm but also leads a professional association for government employees responsible for enforcing the laws that lead to his firm's billable hours (or minutes, it seems). In response the Desert Sun's investigations, it appears that Coachella officials will rethink their methods. Indio's interim city manager and a council member, however, defended the harsh enforcement, insisting this "aggressive approach" was getting results. This aggressive approach appare[...]



Florida Appeals Court Upholds City's Veggie-Garden Ban

Sat, 11 Nov 2017 08:00:00 -0500

Late last month, I had the opportunity to discuss my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, before a Seattle-based group of family and consumer scientists, many of them retired. During my talk, I focused in part on a series of city ordinances around the country that ban people from gardening in their own front yards. As almost always happens, these particular laws, among the countless dozens I discuss in the book, raised the most ire among the audience: "Why would any city do this? How can a city do this? I hope these people are fighting back!" One of the most egregious examples I highlighted comes from an ongoing case in Miami Shores, Fla. There, Hermine Ricketts and her husband, Laurence Carroll, had kept a nicely manicured vegetable garden in their front yard for nearly two decades. Then, in 2013, Miami Shores adopted an ordinance that banned vegetable gardens, and vowed to fine violators each day they failed to comply with the law. The couple sued, arguing, as a local CBS affiliate put it, "that the ordinance ran afoul of the Florida Constitution, including that it violated their privacy rights and their right to acquire, possess and protect property." Last year, a Florida state court upheld the vegetable-garden ban, on grounds that aesthetic reasons—the city thinks vegetables are ugly—are sufficient justification for a city to ban vegetable gardens. Last week—a few days after my Seattle talk—a state appeals court ruled in the matter. The court's words are, at first, buoying. The decision begins with an non-exhaustive list of all the things Miami Shores residents may have in their front yards: "garden gnomes, pink flamingos and trolls.... boats and jet skis.... whatever trees, flowers, shrubs, grasses, fruits and berries they desire." Everything save for vegetables. Surely, thinks the reader, such a ban cannot stand. Tragically, after the appeals court's ruling, it did just that. "Though [the plaintiffs'] claims seem compelling, the trial court's well-reasoned, ten-page final order rejecting the appellants' claims correctly acknowledged the difficult procedural posture confronting the appellants and dutifully applied controlling precedent," the appeals court held. I will concede that the trial court's order is, in fact, 10 pages in length. Well reasoned? The order simply recommends that the proper remedy for Ricketts and Carroll—or anyone else whose right to plant a garden and feed themselves and their family has been trampled on—is to vote for better elected officials in their cities and towns. (It's worth noting that judges in Florida are also elected by voters.) This is the judicial equivalent of the shruggie: ¯\_(ツ)_/¯ It's also a typical, if particularly repugnant, example of the trifling level of scrutiny—known as "rational basis review"—that's commonly applied by our courts. "In Miami Shores, it is perfectly fine to grow fruit, build a pool, or park a boat in your front yard," says Ari Bargil, an attorney with the Institute for Justice, which represents Ricketts and Carroll, in an email to me in the wake of the court's ruling. "But this decision holds that it['s] perfectly rational for a City to prohibit vegetable gardens, while permitting virtually everything else." Why ever would Miami Shores adopt such a draconian and unconstitutional measure? What rational basis might city lawmakers have had? These are great questions. Meh. "City commissioners' motives in adopting ordinances are not subject to judicial scrutiny," the appeals court explains, citing Florida precedent. The particular Miami Shores garden ban is part of the city's zoning laws, an area in which courts often provide cities with almost boundless and arbitrary discretion. "Prohibitions on gardens such as those in... Miami Shores... arise largely out of zoning regulations," I write in Biting the Hands that Feed Us. "Zoning, supporters contend, is intended to prevent conflicts [...]



Justice Department Bizarrely Uses Madoff to Defend Taking People's Stuff Without Convicting Them First

Fri, 10 Nov 2017 13:40:00 -0500

The Department of Justice has brought out the big guns to defend the largely indefensible law enforcement tool of civil asset forfeiture. In a remarkably deceptive Wall Street Journal piece, U.S. Deputy Attorney General Rod Rosenstein tries to use the Bernie Madoff fraud case to argue that civil asset forfeiture is an important tool to return stolen money to the victims of a crime: Thanks to civil asset forfeiture, the Department of Justice is announcing today the record-setting distribution of restitution to victims of Bernard Madoff's notorious investment fraud scheme. We have recovered $3.9 billion from third parties—not Mr. Madoff—and are now returning that money to more than 35,000 victims. This is the largest restoration of forfeited property in history. Civil forfeiture has allowed the government to seize those illicit proceeds and return them to Mr. Madoff's victims. Why use civil forfeiture instead of prosecution? Not everyone who possesses illegal proceeds can or should be criminally prosecuted. Many criminals transfer ill-gotten gains to relatives or friends, and others use couriers to transport cash. In such cases, civil forfeiture enables the government to recover property when prosecuting the person caught holding it may not be appropriate or feasible. Rosenstein says that the Justice Department has used asset forfeiture (both civil and criminal) to return billions of dollars to the victims of crimes. He wants Americans to come away from this commentary thinking the government takes property from the worst of our crooks and returns it to innocent citizens. The reality is very different. There's a reason why Rosenstein's piece revolves around a couple of high-profile anecdotes and lacks a lot of specifics. That's because civil asset forfeiture is often used against the poor, not wealthy crooks like Madoff. And the police often don't return the money to victims but keep it for themselves, to make up gaps in their budgets or to go on shopping sprees (cowboy hats!). Rosenstein's aim is to stop Congress from restraining the practice. Civil asset forfeiture is a frequent source of scandal because it allows police and prosecutors to seize property without convicting the owner of a crime or even charging them. There have been dozens upon dozens of stories of police and prosecutors abusing civil asset forfeiture to take property from people who are never shown to be criminals at all. Because it's a "civil" process, the evidentiary thresholds to take the stuff are lower, and the owners of the property have to pay for their own lawyer or attempt to navigate a confusing, opaque court process on their own. Rosenstein knows this, but he deliberately downplays the negative consequences, acting like it's just like any other civil property dispute. He adds, "There is no logical reason to demand the elevated criminal standard in a lawsuit about illicit proceeds." The vast majority of civil asset forfeiture cases look nothing like the Madoff case and everything like a brutal shakedown of citizens amid a never-ending drug war. The Washington Post's Radley Balko reported on a case just the day before Rosenstein's op-ed appeared where a drug task force in Alabama raided a home, the stress of the raid prompted a man at the house to develop heart problems, and he ultimately died. Undaunted, the police then seized the family's home, auctioned it off, and kept the money for themselves. There is indeed a "logical reason" to demand a criminal standard to seize property: It's for the very purpose of making it harder for police and prosecutors to take people's stuff without strong proof it's connected to a crime. The point is to reduce the incentives for the government to declare that citizens traveling with cash must surely be involved in illegal undertakings and just seize the money without any additional evidence of wrongdoing. Rosenstein himself encourages this attitude, saying outright in the op-ed that people often d[...]



Wisconsin Lawmakers Pass Bill to Protect Property Rights, Reverse Supreme Court Decision

Wed, 08 Nov 2017 10:58:00 -0500

Lawmakers in Wisconsin passed a property rights bill yesterday that effectively overturns a controversial decision made earlier this year by the U.S. Supreme Court. The so-called "Homeowners Bill of Rights" is now headed to Gov. Scott Walker. A key element of the package would broaden the legal protections for landowners who have "substandard lots"—parcels of land that once fit within zoning regulations but no longer do. Five months ago, the Supreme Court ruled in Murr v. St. Croix County that local regulators could effectively treat two neighboring lots owned by the same family as if they were a single parcel of property. "The bill changes that by making it possible to "grandfather" lots that were purchased under discarded regulatory regimes." The bill is meant to "make sure that when people buy property, and they have expectations related to that property, that those expectations do not change over time," says state Rep. Adam Jarchow (R–Balsam Lake), who sponsored the legislation. "And their rights are not taken away because of changing rules or regulations over time." .@AdamJarchow28 bill would restore property owners' rights lost in #SCOTUS #Murr decision, letting prop. owners divide, sell property. #tcot pic.twitter.com/UO15y2sEbA — MacIver Institute (@MacIverWisc) November 7, 2017 That's what happened to the Murrs, the Wisconsin family at the heart of the Supreme Court decision. They bought two parcels of land along the St. Croix River in the 1960s. In 2004 they tried to sell one of the parcels to pay for repairs to the cabin which sits on the other, but local regulators told them that the two parcels were in violation of zoning changes made in 1975. Selling one of the parcels, therefore, was illegal—the family had to sell either both or neither. It took nearly a decade for the case to work its way to the Supreme Court. Though it was a dispute over less than three acres of land, it had significant legal ramifications for western states in particular, because they contain wide swaths of federal land and have to deal with ever-changing regulations about how that land can be used. (The Reason Foundation, which publishes this blog, submitted an amicus brief to the Supreme Court in support of the Murrs' claim.) The Supreme Court ruled 5–3 against the Murrs. "Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here," Justice Anthony Kennedy wrote in the majority opinion. In a scathing dissent, Chief Justice John Roberts called the ruling a blow to property rights, saying it would give bureaucrats greater power to pass rules that diminish a property's value without having to compensate the owners under the Firth Amendment's Takings Clause. "Put simply, today's decision knocks the definition of 'private property' loose from its foundation on stable state law rules," Roberts wrote. The ruling "compromises the Takings Clause as a barrier between individuals and the press of the public interest." Ilya Somin, a professor of law at George Mason University, warned that the ruling is "likely to create confusion and uncertainty." At least that won't be the case in Wisconsin anymore. State lawmakers played their proper role by responding quickly to what they saw as a miscarriage of justice and changed the law to correct the problem. All that remains is a signature from the governor. The bill passed Tuesday would also make it easier for landowners to use their property for activities that don't strictly fit within existing zoning codes. It also clarifies that local or state government entities must pay compensation for so-called "regulatory takings," when zoning or other laws make land less usable. That was an aspect of the Murr case too, since the family wanted to be compensated for losing the ability to sell just one of their two parcels of land. John Groen, executive vic[...]



After Stalling for Two Years, CBP Returns Truck It Stole at the Border

Fri, 20 Oct 2017 12:30:00 -0400

(image) Yesterday Gerardo Serrano was reunited with his 2014 Ford F-250 pickup truck, which was arrested by Customs and Border Protection officers two years ago in connection with international arms smuggling. The smuggling involved five handgun rounds that Serrano forgot to remove from the truck's center console before embarking on a trip to visit his cousin in Mexico. The truck was never formally charged with a crime, and neither was Serrano, as is typical in civil forfeiture cases. After the Institute for Justice filed a class action lawsuit on behalf of Serrano and other similarly situated vehicle owners last month, I.J. says in a press release, CBP lawyers suddenly told him "he could pick up his truck whenever he wanted."

CBP's capitulation is yet another example of how standing up to asset-seizing bullies can pay off, especially if you have the Institute for Justice in your corner. But I.J. is not done with CBP. "The government cannot illegally seize and keep someone's property for two years, and then give it back and pretend like no harm was done," says I.J. attorney Robert Everett Johnson. "We will continue to fight to see that Gerardo is made whole, and to make sure this never happens again."

Serrano still has not been compensated for the costs imposed by the seizure of his truck. He continued to make monthly $672 car payments even though he could no longer use the truck, paid $700 a year to insure it and $1,000 to keep it registered in his home state of Kentucky, and spent thousands of dollars on rental cars. Then there is the matter of the $3,805 bond (10 percent of the truck's value) that he had to pay so he could challenge the seizure in court. Serrano never got his day in court, but the government still has his money. If I.J. had not represented him pro bono, Serrano probably also would have had to pay a lawyer thousands of dollars.

The I.J. lawsuit focuses on the lack of due process for property owners like Serrano, who lose the use of their vehicles for extended periods of time while their forfeiture cases stall. In Serrano's case, CBP never even got around to filing a forfeiture complaint. In the Western District of Texas, I.J. says, the average time between a CBP vehicle seizure and the filing of a forfeiture complant is 150 days.

"No judge would have approved the seizure of Gerardo's truck," says I.J. attorney Anya Bidwell. "And that's precisely why Customs and Border Protection is giving it back. We're just saying the agency should have to explain themselves to a judge promptly after it first takes the property."

Serrano is happy about the semi-victory but wants to see more evidence that CBP has seen the error of its car-stealing ways. "I'm thrilled to have my truck back," Serrano says. "But I'd like somebody to apologize for taking it in the first place."




Chicago Alderman Who Told Businessman to 'Come Back To Me On Your Knees' Sued for Abuse of Power

Thu, 12 Oct 2017 14:30:00 -0400

Chicago Alderman Proco Joe Moreno wanted to help a business that had contributed to his campaign coffers. So he told Brian Strauss, a firefighter and property owner, to rent his building to the business or suffer the consequences. When Strauss refused to comply, Moreno made good on his threats, downzoning Strauss's building and scuttling multiple attempts to sell the property. Strauss is now suing, arguing that Moreno's abuses of his aldermanic powers violate Strauss' rights under the Fifth and Fourteenth Amendments. According to Strauss's suit, Moreno's threats and eventual downzoning "were completely out of character with both the zoning and actual uses of the neighborhood," "were proposed in bad faith," and "were done for personal rather than a public interest". Strauss's trouble began in late 2015, when he tried to evict the Double Door Music Hall from a Wicker Park property his family had owned since the '60s. (The eviction was prompted by several lease violations.) Moreno, who had received more than $7,500 in campaign donations from Double Door's management, requested that Strauss let the business stay on. Strauss declined and began looking for another tenant. Then Moreno's gloves came off. "I'm tired of hearing about the sympathy of you and your family," the alderman reportedly told Strauss and his attorney at one meeting. "Double Door is going to be in that building, there will never be another tenant in there, there will never be another sign on that building." Over the coming months, Moreno—in meetings brokered and attended by staffers for Chicago Mayor Rahm Emanuel—tried to get Strauss to sell his building to Double Door for $7 million, despite its market value of nearly $10 million. When that failed, the alderman started introducing downzoning proposals for Strauss's property that would have made it off limits for most business uses. In June 2017, Moreno even tried to reclassify the building as a residential unit, which would prohibit practically all commercial uses. That failed, but in September the city council did pass a downzoning ordinance, which prevents Strauss from converting his property to a general restaurant, a bar, or even, ironically, its previous use as concert venue. In a very public, and very disturbing, encounter with Strauss, Moreno made clear his zoning changes were all about extracting concessions. "You can come back to me on your knees, which is going to happen," he raged. "It's gonna be an empty building with no income for you or your family." Other officials went along with this under the longstanding practice of "aldermanic privilege," which basically means that other aldermen don't interfere with their colleagues' zoning and regulatory practices in their own wards. Moreno's actions have taken their toll on Strauss's attempts to sell the building. Three sales have now fallen through, with developers citing the downzoning proposals as reasons for walking away. Strauss is now asking for $9.6 million in damages from those lost sales, saying that Moreno's "extreme and outrageous" conduct amounts to a taking of his property without due process of law. As Reason's Eric Boehm noted when this story surfaced in May, Moreno is not a big fan of property rights. He previously tried to prevent a Chick-Fil-A from opening in his ward because of the owners' views on gay marriage, and also attempted to block the construction of a Wal-Mart because it wasn't "a perfect fit for the area." Said Boehm: The rule of law requires that government officials have their authority held in check, specifically to prevent abuses like the ones that Chicago's civic system seems to encourage. Moreno is free to believe that Chick-fil-A's executives are wrong about gay marriage, and he's free to dislike shopping at Wal-Mart. He should not be able to use his position of authority to block those businesses from operating in his wa[...]



Michigan Mayor Offers Seized Money as a Citizen Reward for Drug Snitching. What Could Go Wrong?

Wed, 04 Oct 2017 16:05:00 -0400

The mayor of Detroit's largest suburb is offering to spread the city's civil asset forfeiture funds around to citizens who squeal on their neighbors for dealing drugs. Jim Fouts, the mayor of Warren, Michigan, and Police Commissioner Bill Dwyer announced today a new program where citizens can earn $500 by turning in their neighbors. The Detroit News explains: "This program means all Warren residents will be the eyes and ears in our war against drug pushers," Fouts said in a statement. Dwyer said rewards will come from drug forfeiture funds that the police department uses to fight illegal drugs in the city. "I've never heard of another city doing something like this," he told The Detroit News in a phone interview. "In other words, we're taking funds from drug dealers to pay residents for information about other drug dealers. Taxpayers are not paying for this." That is not even remotely how it works. Michigan's asset forfeiture program has little oversight, a huge potential for abuse, and does not require alleged drug dealers even be convicted of a crime before the city can seize their money or assets. Law enforcement agencies in Michigan can potentially keep 100 percent of what they seize, creating significant financial incentives to accuse citizens of criminal conduct. For those reasons, the property rights-protecting analysts at the Institute for Justice graded Michigan a D- for the way it operates its funds. Police and mayors attempt to sell civil asset forfeiture as a way of funding government by sticking it to drug dealers, but that's not really what happens. Last year, Traverse City, Michigan, attempted to seize the home of a couple operating a medical marijuana dispensary without charging them with anything. The Detroit Free Press in 2015 highlighted several of cases just like the one in Traverse City. Saying "taxpayers are not paying" for asset forfeiture is simply not true. Law enforcement agencies across the state raked in $244 million between 2001 and 2013 without ever proving these people are "drug dealers," according to the Institute for Justice. This program in Warren only adds more twisted incentives. If police raid a property on the basis of these calls, there will be a need to justify the costs—meaning police will want to find some reason to bust the people there. And then, of course, they'll use asset forfeiture to try to take and keep the money and property of those people in order to keep this whole operation going. And imagine the prospect of a payday for feuding neighbors. You don't actually have to imagine. The Trump administration created a hotline for citizens to report crimes committed against them by illegal immigrants. A look through the logs of the calls they have been getting show people attempting to snitch on their neighbors and get them investigated often without any actual indication they were engaging in any crimes. Read what Splinter uncovered here.[...]



Does the Colorado River Have Rights?

Fri, 22 Sep 2017 14:00:00 -0400

"In a first-in-the-nation lawsuit filed in federal court, the Colorado River is asking for judicial recognition of itself as a 'person,' with rights of its own to exist and flourish." So declares a press release from the activist organization Deep Green Resistance. The lawsuit against Colorado's governor is being filed in federal district court by the Community Environmental Legal Defense Fund (CELDF), which says it "seeks a ruling that the Colorado River, and its ecosystem, possess certain rights, including the right to exist, flourish, evolve, regenerate, and restoration." In support of the legal theory that rivers have rights, the suit cites Supreme Court Justice William Douglas' famous dissent in Sierra Club v. Morton (1972). In that case, the Sierra Club sued to block the Disney company from building a ski resort at Mineral King in the Sequoia National Forest. The majority of the court ruled that the Sierra Club did not have legal standing—that is, that the group failed to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. (As it happens, the ski resort was never built anyway.) In his dissent, Justice Douglas, with considerable legal poetry, argued: Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction. The CELDF also cites a recently enacted provision in the constitution of Ecuador that confers rights on nature: Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. Let's just say that the law pertaining to the use of water is complex. I personally prefer common law riparian rights as a way to govern streams, rivers, and lakes. Riparian water rights give landowners along a stream rights to an undiminished quantity and quality of water. Consider the 1913 case Whalen v. Union Bag & Paper, in which a New York Court of Appeals ruled that a million-dollar paper mill employing 500 people did not have the right to pollute the water flowing past Robert Whalen's 255-acre farm on Kayaderosseras Creek, near Albany, New York. The Court reasoned: Although the damage to the [farmer] may be slight as compared with the [paper mill's] expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion it would deprive the poor litigant of his littl[...]



2 Years After CBP Took His Truck Because of a Few Forgotten Bullets, Still No Hearing

Wed, 13 Sep 2017 14:45:00 -0400

Gerardo Serrano was on his way to visit his cousin in Mexico when Customs and Border Protection (CBP) agents at the border station in Eagle Pass, Texas, found a magazine containing five .380-caliber rounds in the center console of his pickup truck. Serrano, a U.S. citizen with a concealed-carry permit issued by Kentucky, said he did not realize the magazine was in the truck and offered to leave it behind as he continued on his journey. But as far as the CBP agents were concerned, those five cartridges made Serrano an international arms smuggler. Although he was never charged with a crime, the agents seized the truck, a 2014 Ford F-250. That was two years ago, and Serrano still has not been given a chance to challenge the still-pending civil forfeiture of his property. In a federal lawsuit filed last week, the Institute for Justice argues that property owners like Serrano have a constitutional right to a prompt hearing after a seizure, a right that CBP systematically violates. "Federal statutes do not provide for a prompt post-seizure hearing when property is seized for civil forfeiture by CBP, and CBP regularly fails to provide any kind of prompt post-seizure hearing," the complaint says. "Plaintiff has filed this suit to recover his property and to put that policy or practice to an end." In addition to the return of Serrano's truck and compensation for the costs he has incurred as a result of the seizure, the suit asks the court to certify a plaintiff class of similarly situated vehicle owners and order CBP to start respecting their due process rights. Serrano attracted CBP attention because he was creating a record of his trip to share with friends and relatives on social media and used his phone to take pictures of the border station. CBP prohibits unauthorized photography near ports of entry. (After the ACLU challenged that policy on First Amendment grounds in 2012, a federal judge in California ruled that the ban was justified by the agency's "interests in preserving the integrity of its sensitive border search techniques, law enforcement operations, and criminal investigations.") After seeing Serrano take pictures, a CBP agent pulled him out of his truck, handcuffed him, took his phone, and demanded the password, which he refused to give. When Serrano complained that his constitutional rights were being violated, the complaint says, the agent responded that he was "sick of hearing about your rights" and told Serrano "you have no rights here." In this context, the seizure of Serrano's truck looks a lot like retaliation for his uppity attitude. Upon discovering the ammunition, according to the complaint, an agent exclaimed, "We got him!" The agent who had handcuffed Serrano told him, "You're in big trouble now." Serrano explained that he had a Kentucky carry permit, which was respected in the states he had traversed on his way to the border (Tennessee, Arkansas, and Texas). Hence his inadvertent transportation of the handgun magazine had not violated any laws yet. Since he was still in the United States, he wondered, couldn't he just leave the magazine at the border station? Sure, the agents said, but you'll have to leave your truck too. Serrano opted not to pursue the administrative process for appealing a seizure, where the same agency that took the asset decides whether to keep it. Instead he paid a $3,805 bond (10 percent of the asset's value) so his case could be heard in federal court. But despite repeated inquiries, the case still has not been assigned to a federal prosecutor, let alone heard by a judge. According to the complaint, a CBP paralegal (one of the plaintiffs named in the suit) told Serrano "the attorneys who file forfeiture cases are very busy and cannot quickly process cases." The U.S. Court of Appeals for the 5th Circuit, which[...]



New York Mayor to Property Owners: Drop Dead

Fri, 08 Sep 2017 12:45:00 -0400

It shouldn't come as surprise that New York Mayor Bill de Blasio, who campaigned on fighting income inequality and wants to tax the rich to pay for public transit improvements, has a fairly dim view of private property rights. But "dim" is apparently a bit of an understatement. De Blasio flat out does not believe in the right to private property. That's highlighted in its starkest terms in a New York piece out this week. Here is de Blasio's response when asked about efforts to fight income inequality: What's been hardest is the way our legal system is structured to favor private property. I think people all over this city, of every background, would like to have the city government be able to determine which building goes where, how high it will be, who gets to live in it, what the rent will be. I think there's a socialistic impulse, which I hear every day, in every kind of community, that they would like things to be planned in accordance to their needs. And I would, too. Unfortunately, what stands in the way of that is hundreds of years of history that have elevated property rights and wealth to the point that that's the reality that calls the tune on a lot of development.... Look, if I had my druthers, the city government would determine every single plot of land, how development would proceed. And there would be very stringent requirements around income levels and rents. That's a world I'd love to see, and I think what we have, in this city at least, are people who would love to have the New Deal back, on one level. They'd love to have a very, very powerful government, including a federal government, involved in directly addressing their day-to-day reality. Reason editor Katherine Mangu-Ward called de Blasio a perfect Ayn Rand villain for good cause, people! There are no doubt a number of people in urban environments who want exactly what de Blasio says. But what they really want is to control what other people do with their property, to make them match their vision of what their community should look like. And since no two people actually agree on what every single piece of property should look like, the decision-making role would actually fall to the government and de Blasio. That is clearly what he wants: He tries to sell it by invoking the "needs" of the "community," but government officials ultimately get to decide what those needs are and how to meet them. How does that work out in real life? Terribly, of course! Government officials are no more pure of heart than those wealthy property owners. In fact, they are often the wealthiest of property owners. When government takes control of property development, it's the poor and downtrodden who very frequently take it on the chin. Government control over property inherently creates a dynamic where the most influential and powerful constituencies decide what happens. It's a recipe for collusion between government and developers, and also for NIMBY behavior that keeps the poor from having access to housing and cheap retail and services. When government doesn't respect private property, you get situations like the one in Pleasant Hill in Charlestown, Indiana. There the mayor stands accused of colluding with developers to drive working-class citizens and retirees out of their homes so that the properties can be razed to build something bigger. The town has reportedly abused the code enforcement rules to saddle these people with fines and essentially force them to sell their homes. Imagine if the mayor could just decide to boot all these people out because he wants to build something bigger and better. That's the society De Blasio is openly calling for. Or come on over here to California, where wealthy homeowners abuse environmental regulations to stop more housing from bei[...]



Forfeiture Loot Corrupts Justice

Wed, 23 Aug 2017 00:01:00 -0400

In Ohio during the 1920s, people caught with "intoxicating liquors" could be tried by rural mayors, who were paid for each conviction and authorized to impose fines that were split between the village and the state. Four decades later, mayor's courts in Ohio were handling traffic cases, which did not reward the mayors directly but generated substantial income for their villages. According to the U.S. Supreme Court, both of these arrangements violated the right to due process, since the judges had a financial incentive to find people guilty. Civil asset forfeiture creates a similar problem, encouraging police and prosecutors to take property from innocent owners and turn a deaf ear to their objections. That is what happened to Rhonda Cox, whose pickup truck was seized in 2013 by Pinal County, Arizona, sheriff's deputies when they arrested her son for installing stolen parts in it. Cox argues that the forfeiture violated her right to due process, and last week a federal judge refused to dismiss her lawsuit, recognizing the constitutional concerns raised by a system that lets law enforcement agencies make money by confiscating assets they say are linked to crime. In Arizona, U.S. District Judge Diane Humetewa noted, the law enforcement agencies that initiate and complete a forfeiture get to keep all of the proceeds. Some agencies, such as the Arizona Department of Public Safety's bomb squad, SWAT team, and hazardous materials unit, are funded entirely by forfeitures, while others rely on them to pay for vehicles, equipment, overtime, retirement fund contributions, and image-building donations to local civic groups. According to Cox's complaint, Lando Voyles, who as Pinal County attorney approved the confiscation of her truck, even used forfeiture loot to pay for his home security system. This financial interest tends to make cops and prosecutors less than sympathetic to the rights of innocent property owners like Cox, who did not know her son had borrowed her truck, let alone that he was doing anything illegal with it. The deputies who took the truck said there was no way she'd ever get it back, and Voyles' office rejected her "petition for mitigation" out of hand, claiming (incorrectly) that she was not entitled to relief because she had purchased the truck for family use. Deputy Pinal County Attorney Craig Cameron also claimed, inconsistently, inaccurately, and irrelevantly, that Cox was a "straw buyer" for her son. "Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back," her complaint notes. "The State did not have to prove that Rhonda did anything wrong—let alone criminal—in order to keep the Truck." Cox could not afford to take her challenge further, especially since the cost of a lawyer could easily have exceeded the $6,000 she paid for the truck. Under state law at the time, she also would have been on the hook for the government's legal expenses if she lost. The American Civil Liberties Union, which is representing Cox, notes that forfeitures in Pinal County frequently involve property worth less than $1,000, making legal challenges prohibitively expensive. That effectively means the agencies that stand to profit from a forfeiture are the first and final arbiters of whether it's justified. Even prosecutors understand the potential for corruption in this situation. A training presentation from the Arizona Prosecuting Attorneys Advisory Council, which Judge Humetewa quotes in her ruling, warns that "when your bosses can't find any money in their budget they get depressed," and "when they get depressed they tell you to start doing forfeiture cases." Playing off those jokey Direct TV ads about the hazards of ca[...]



Jeff Sessions Lets Cops Be Robbers

Wed, 26 Jul 2017 00:01:00 -0400

Donald Trump made two things abundantly clear during a meeting with county sheriffs last February: He did not know what civil asset forfeiture was, and he wanted to see more of it. The president will get his wish thanks to a directive issued last week by Attorney General Jeff Sessions, who has a clearer idea of what civil forfeiture entails but is only slightly more sensitive to its potential for abuse. That potential is built into the very concept of civil forfeiture, which allows police to take property allegedly tied to crime without charging the owner. Worse, law enforcement agencies get to keep revenue generated by forfeitures they initiate, which gives them a financial incentive to target people based on the assets they own rather than the threat they pose. In theory, the government can forfeit a seized asset only after proving it is a tool or fruit of crime, typically drug trafficking. But the burden of proof is much lighter than in a criminal case, and it applies only if the owner challenges the seizure in court, which often costs more than the asset is worth. Recognizing how easily innocent people can lose cash, cars, and homes to money-hungry cops, two dozen states and the District of Columbia have reformed their forfeiture laws since 2014. The changes include mandating data collection and reporting, strengthening standards of proof, and requiring a criminal conviction before some or all forfeitures. By reviving federal "adoption" of forfeitures initiated by state or local agencies, Sessions is offering cops who chafe at these restrictions the option of ignoring them. Adoption, which Attorney General Eric Holder mostly eliminated in 2015, lets police and prosecutors evade state limits on forfeiture and keep up to 80 percent of the proceeds. Seven states prohibit or restrict such circumvention. But in the rest, cops who do not like reforms aimed at protecting innocent property owners from legalized theft can once again easily dodge them with help from the Justice Department. Although Sessions pays lip service to the need for safeguards, he argues that innocent owners are rare. "Over the last decade," he says, "four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court." According to Sessions, that means only a "small minority of cases" involve people whose property was seized for questionable reasons. But since challenging a forfeiture is difficult and may be prohibitively expensive, the failure to do so is hardly an admission of guilt. Sessions says a state or local agency seeking federal adoption of a forfeiture will have to provide "information demonstrating that the seizure was justified by probable cause." But in practice probable cause may be little more than a hunch—e.g., you've got a lot of cash, so you must be a drug dealer. And given the obstacles to recovering seized property, such vague, unsubstantiated suspicions may be all the government needs to keep it. The Fifth Amendment Integrity Restoration (FAIR) Act, reintroduced by Sen. Rand Paul (R-Ky.) in March, would withdraw Sessions' invitation to forfeiture abuse by abolishing federal adoption along with the rest of the Justice Department's so-called Equitable Sharing Program, which includes loot grabbed in the course of joint operations. The FAIR Act, which has bipartisan support, also would strengthen the standard of proof in federal forfeiture cases, require the government to show that the owner of seized property consented or was willfully blind to its illegal use, give indigent owners a right to counsel, and assign forfeiture revenue to the general fund instead of the Justice Department. Reforms like these should be supported [...]



Brickbat: Icky Azaleas

Mon, 10 Jul 2017 04:00:00 -0400

(image) For 30 years, Lexa King has cultivated the azaleas outside her Atlanta home. But someone recently made an anonymous complaint to city code enforcement. A code enforcement officer cited her for having an overgrown yard. She faces up to 60 days in jail and a $1,000 fine.