Published: Tue, 25 Oct 2016 00:00:00 -0400
Last Build Date: Tue, 25 Oct 2016 18:06:58 -0400
Fri, 14 Oct 2016 14:18:00 -0400A potentially massive new class-action lawsuit filed by the Institute for Justice seeks to stop the terrible practice by New York City that attempts to intimidate small business operators and renters into signing away their constitutional rights in order to avoid getting evicted as a method of "nuisance abatement." This practice, authorized by a law passed in the 1970s intended to clean up Times Square, has been exposed as a source of abusive police and city behavior against citizens. All police have to do is find evidence that a crime might have taken place on a property in order to threaten people with eviction. The way the law is worded doesn't require a conviction or even charges for the city to move forward. It's not unlike the abuse-prone civil asset forfeiture programs where police attempt to seize cash and property from people for mere suspicion of criminal activity. A media investigation back in February exposed how this alleged "nuisance abatement" program has resulted in hundreds of people being ejected from their homes by the New York Police Department, but there frequently were no convictions for any crimes, and in some cases, not even charges. This week the Institute for Justice (IJ) filed a class-action suit to try to stop some of the coercion embedded in this program and its lack of due process. The police and New York City often use the threat of eviction to try to intimidate people into signing away their property rights, their due process, and even the right to decide who may live with them. IJ is representing three plaintiffs at the start. Sung Cho owns a laundromat targeted by police, and David Diaz and Jameelah El-Shabazz are renters. IJ's announcement of the lawsuit focuses on Sung's experience: On a cold December morning three years ago, Sung Cho showed up to open his laundromat business in Manhattan and found a bright orange eviction notice attached to the window. The notice said he had just a few days to prepare for a hearing—scheduled for Christmas Eve—where he would have to convince a judge that his business should not be closed. Sung soon learned that he was threatened with eviction because undercover New York police officers came to the laundromat and offered to sell stolen electronics. Two people took the bait, though neither had any connection to Sung's business. Sung was the target of the NYPD's no-fault eviction program, which punishes businesses and residents when somebody else—even a total stranger—commits a crime on or near their property. The program allows the NYPD to evict tenants, no conviction required. Neither Sung, nor his business or employees were implicated in the sting. But that didn't matter, as innocence was not a defense under the city's ordinance. Sung could be evicted simply because his business was the site of a crime. But there was a way for Sung to save his business, the city told him: The city would drop the eviction action if Sung agreed to three demands: waive his Fourth Amendment right against warrantless searches, grant police unlimited access to his security camera system, and allow NYPD to impose future fines and sanctions for alleged criminal offenses at the business without any opportunity for a hearing before a judge. Faced with no other option, Sung signed the agreement. IJ's lawsuit is aiming to block this sort of intimidation and to force New York City to stop threatening citizens with eviction unless they sign away their constitutional rights. Reason spoke with Robert Everett Johnson, an IJ attorney handling the lawsuit. They're not sure how many New Yorkers might be able to join the suit, but the report from February found nearly 150 cases where residents either gave up leases or were banned from homes without having been convicted of a crime. That was over a period of just 18 months. Given how old the law is, Johnson figures there are "hundreds or even thousands of cases" where New Yorkers were intimidated into giving up their property rights. The two other cases IJ is representing show how the system harms renters. David Diaz's home was [...]
Mon, 03 Oct 2016 12:00:00 -0400Eighty-three-year-old Hazel Palmer could become the Suzette Kelo of Virginia—the face of a property-rights revolution. She has a piece of land in Augusta County along the proposed route of the 600-mile, $5 billion Atlantic Coast Pipeline. It has been in her family for four generations, and she does not want surveyors for the pipeline traipsing across it—especially if said surveying leads to what she fears: a staging area for drilling inside her property line. A state law says the pipeline's surveyors don't need her permission to step onto her property. The state's constitution might say otherwise. Virginia's Supreme Court will decide the matter. The pipeline has generated ferocious opposition from environmentalists and those who don't want it running through their backyards. The latter cohort includes a lot of scrappy citizen-activists along with some well-heeled interests, and they have raised a host of objections to the project—some more persuasive than others. Palmer probably wouldn't have a snowball's chance herself, if it were not for an amendment supported by 75 percent of the voters in 2012. Courts have repeatedly ruled against property owners who refuse entry to natural-gas surveyors. In 2004 the commonwealth passed legislation explicitly granting natural-gas companies authority to enter private property for "examinations, tests, land auger borings, appraisals and surveys without the written consent of the owner." Nor is that anything new. A 1782 law allowed surveyors to enter private property to survey land for the location of public roads, and forbade anyone to "stop, oppose, or hinder" them. Similar laws passed in 1819, 1860, and 1944 granted the same power to turnpike companies, "internal improvement" companies, and railroads. As a general rule, the right to property—the right to the use and benefit of your land, house, car and so forth—entails the right to keep people out of it. "This is mine" necessarily implies "it's not yours." But there have always been exceptions to this "right to exclude," and you can easily see why: If Smith's house is on fire, Smith's neighbors should be able to enter his property to keep the fire from spreading to their own homes. If the neighborhood children accidentally toss a frisbee onto Smith's lawn, most people would say they should be able to retrieve it without being arrested for trespassing. If the sheriff has a warrant, Smith can't avoid arrest by forbidding the sheriff to step on his land. Lawyers for the pipeline—a joint project of Dominion, Duke, and two smaller companies—therefore say that Palmer has no right to exclude the surveyors in the first place. And even if she did, they continue, the minor inconvenience of having surveyors walk across her land does not qualify as a "taking" of private property, let alone one that requires compensation. No title of ownership is being transferred, and the surveying will not keep Palmer from using and benefiting from her property: no harm, no foul. Finally, in the event that the surveyors do inflict any damage to her property, they will have to pay for it. Palmer's lawyers assess the inconvenience as more than minor: "A flagging crew would clear a path through the property and flag the proposed route. A survey crew would survey the property. An environmental crew would collect environmental data by various methods, including digging into the property with hand augurs to look for wetland soils. A cultural resource crew would use hand shovels to dig 1.5 foot wide by 1.5 foot deep holes every 50 feet along the proposed pipeline route looking for items of cultural interest, which, if found, would be dug up and taken from the property for analysis. ... All told, five crews totaling around 20 people would enter the property over Ms. Palmer's objections." But again, the pipeline attorneys says: so what? All 50 states have statutes similar to Virginia's, they point out, and courts have upheld the authority of utilities, turnpike authorities, and other entities to conduct surveys on private proper[...]
Fri, 16 Sep 2016 02:40:00 -0400During a 1997 speech to the American Planning Association in Monterey, Peter Douglas, the longtime executive director of the California Coastal Commission and main author of the 1972 initiative that created it, argued that private property rights were on a collision course with the environmental movement. He warned of "the clear and present threat to the health and well-being of the public flowing from the property rights debate" and expressed concern "about the direction in which the debate is being driven by the courts." Douglas gave a tongue lashing to the Pacific Legal Foundation, a Sacramento-based group that litigates on behalf of property owners fighting against government agencies. Douglas died four years ago, but the agency he guided for several decades continues to implement his—and the ensuing 1976 coastal act's—vision in an oft-times heavy-handed manner. The agency has broad powers to control land use along California's 1,100-mile coastline. If he were alive today, Douglas would be appalled at an Orange County court ruling late last month in a San Clemente case. Those of us who believe in limited and accountable government, and who bristle at the thought of bureaucrats shaking down property owners for unfair concessions, should celebrate. Douglas was right in this much, however: The courts have found constitutional property protections sometimes are at odds with the goals of environmentalists. Even sweeter: The winning property owners were represented by the same group he chided. The case is Capistrano Shores Property LLC v. California Coastal Commission. The main issue is fairly simple. Eric Wills and his family moved a mobile home to a beachfront park in 1977 as a second home. After 38 years, they sought a permit to replace the aged structure. The commission agreed to the request for a slightly smaller one after requiring the owner to provide a geological study of the site's risks based on predicted rising sea level. And there were hearings. "But there was a catch," PLF attorney Larry Salzman wrote in an Orange County Register column in April. "The permit was subject to the condition that the Wills forever waive their rights to future shoreline protection of their property, including the right to maintain, repair or enhance the existing seawall." The commission is requiring any park lessees to do the same thing if they seek to replace their old trailers with nicer and newer ones. The owners are not asking the government to maintain a seawall—but only for the right for the community to maintain the wall it's responsible for. That demand that they give up future rights seems Orwellian, except that this is common procedure for an agency that doesn't seem to care much for the current rights of property owners. "For years, the commission has reflexively opposed shoreline protection for private property wherever it can... Instead, the commission has insisted on a controversial policy of 'managed retreat' from the coast," Salzman explained. Basically, environmentalists would like owners to "retreat from the coastline over time" and let nature take its course. In this case, the commission wanted to stop any future seawall expansion from the mobile-home park to protect the size of the beach. The problem, for those who echo Douglas' mindset, is that in the United States public officials are limited in their ability to simply deprive the rightful owners of the legitimate use of their property. "So unless we amend our national Constitution to give Americans a constitutional right to a high 'quality' of life (as is the case in India) or to give standing and protection to the environmental commons of the country, it is the courts that will be the arbiters of the debate over property rights and the protection of environmental values," Douglas once said. Fortunately, no such constitutional revision has occurred. Douglas also complained that property-rights advocates base their cases on "horror stories" that have "sympathetic plaintiffs." Well, they do that becaus[...]
Thu, 30 Jun 2016 11:33:00 -0400When the IRS cleaned out his bank account in 2012, Maryland dairy farmer Randy Sowers told a congressional subcommittee last year, "I was really taken aback by that. I couldn't believe...they would just come in and take my money with no prior notice." But such was standard practice in so-called structuring cases, where the government suspected people had deposited money in amounts less than $10,000 to avoid a federal reporting requirement. It did not matter if, as in Sowers' case, the money came from legitimate sources and there was no evidence of any other illegal activity, since structuring itself is a crime. That made no sense to Sowers. "I thought the government was supposed to protect me," he said. "I didn't think they were supposed to come out and try to put me out of business...I think the government ought to give my money back." Yesterday the government finally agreed to do just that, a development that opens the door to righting hundreds of similar wrongs. In October 2014, responding to negative publicity surrounding forfeiture cases like this, the IRS said it would no longer seize money from people whose only crime consisted of making deposits or withdrawals that the government deemed suspiciously small. The Justice Department announced a similar policy five months later. But the policy change came too late for Sowers, who ran afoul of the IRS because of what he describes as an attempt to avoid extra paperwork related to the cash he and his wife, Karen, took in at farmers markets. "My wife went to the bank one day, and she had $12,000 in cash because we do a festival," Sowers testified. "So we had a little bit of extra cash that week. And when she went to deposit it, the teller told her, 'Well, next time, just keep it under $10,000, and I don't have to fill out a form.' So that is what she did." The honest, hardworking, and otherwise law-abiding couple did not realize that courtesy was a felony. The government, which conceded the money was legally earned, seized $63,000 but eventually agreed to return about $33,000 of it. Sowers testified that the federal prosecutor handling the case initially seemed inclined to return more than that, but his attitude changed after Sowers told his story to the Baltimore City Paper. Something similar happened in the structuring-related forfeiture case involving North Carolina convenience store owner Lyndon McLellan, who nevetheless persevered and ultimately won. Like McLellan, Sowers had help from the Institute for Justice, which is asking the Justice Department to apply the new guidelines for structuring cases to forfeitures initiated prior to the change. I.J. filed a petition on Randy and Karen Sowers' behalf last July, noting that "the government has never even alleged that Randy and Karen did anything unlawful," aside from making deposits of less than $10,000. The petition described the couple's agreement to let the government keep $29,500 of their money as accepting "an offer they could not afford to refuse" and cited congressional criticism of the case. The petition was supported by nine members of the House subcommittee that heard Sowers' testimony. At the same hearing, they noted, IRS Commissioner John Koskinen had testified that "anyone who...was not engaged in processing and laundering illegally gained funds who ended up stuck in the system...deserve[s] an apology." If so, I.J. argued, how can the government let such injustices stand? "If it would be wrong to take the money today," I.J. attorney Robert Everett Johnson said in a February 16 letter to Attorney General Loretta Lynch, "it is equally wrong to keep it." Apparently Lynch agreed, or at least worried that most people would draw that conclusion. Johnson thinks the decision bodes well for other people whose money was taken in similar circumstances. "If the IRS and Justice Department are willing to do the right thing for Randy, there is no reason why they should not do the same for hundreds of other property owner[...]
Fri, 24 Jun 2016 13:05:00 -0400Should basic survival be permitted to trump property rights? And what are the implications for saying "yes"? We may find out in Massachusetts. The state's Supreme Judicial Court has ruled that a homeless man can fight criminal trespassing charges by claiming it's the only way for him to protect himself from the cold. Note that this doesn't necessarily mean the gentleman would be allowed to just barge in anywhere because of the chill or even that a jury or judge will buy the argument. The issue was that a judge denied the ability for the homeless man to use "necessity" as a defense to a jury. The Associated Press explains: In a unanimous, 7-0 ruling, the court threw out six 2014 trespassing convictions. The court said the necessity defense allows a jury to weigh the plight of a homeless person against any harm caused by a trespass before determining criminal responsibility. "Our law does not permit punishment of the homeless simply for being homeless," Justice Geraldine Hines wrote for the court. The court noted that its ruling was not an open invitation for homeless people to trespass. "Allowing a defendant to defend his trespassing charges by claiming necessity will not, of course, condone all illegal trespass by homeless persons," Hines wrote. The owners of the properties had gotten orders to stop the guy from trespassing, so there's a definite conflict here between the right of the homeless man to find refuge from extreme weather and the rights of the property owners to control who is and is not permitted in their spaces. But we needn't have to accept that this conflict is a natural consequence of having homeless among us. Let us not forget the many, many ways that municipalities make it hard for the poorest among us to solve their own problems. Let's drive across country to Los Angeles, where homeless folks are probably not likely to have to suffer much from cold weather. But they have to deal with municipal regulations designed to keep them from a sleep solution that doesn't violate anybody else's property rights at all. Los Angeles wants to adopt a new ban on homeless people sleeping in their own vehicles in many public spaces. Los Angeles actually already had a ban on sleeping in one's vehicles (as do many California cities) but it was struck down in 2014. Judges ruled that the wording of the law was so unclear that it was being used by police to threaten people based on having food and personal property in their vehicles and even for sleeping in their cars on private property. Los Angeles didn't fight the decision and said they would craft a new, clearer ordinance. And now it's back for consideration. From the Los Angeles Times: At the city's homelessness and poverty committee Wednesday, Councilman Mike Bonin proposed barring homeless people from "lodging" in vehicles parked by homes and schools, while allowing them to sleep in their cars and campers from 9 p.m. to 6 a.m. in commercial areas and in designated city, nonprofit agency and church lots. Bonin said his proposal could forestall a more sweeping ban and avoid repeating what he called "absurd and pathetic" scenarios of the past, when police would ask people to get out of their cars to sleep on the sidewalks. Homeless advocates said they doubt the city will come up with enough designated spaces to serve the city's homeless (the number of cars and RVs that are being used for living space in Los Angeles is estimated at around 4,600). And given that violating the law is a misdemeanor violation, they fear it will be used by police to harass the poor (and take and destroy their property). Furthermore, Los Angeles makes it hard for homeless or extremely poor people to work their way out of their situation by keeping them from being street vendors. Oh, and don't forget that incoming $15 minimum wage that will make it even harder for them to get jobs! Even giving them tiny houses to live in is not considered an acceptable solution. Of course, prop[...]
Thu, 23 Jun 2016 04:00:00 -0400
(image) For 17 years, Tom Carroll and Hermine Ricketts grew a vegetable garden in the front yard of their Miami Shores, Florida home, and no one ever complained. Then, the City Council passed a law requiring front lawns be covered with only with grass, sod or "living ground cover," and city officials threatened them with a $50 a day fine if they planted that garden again. The couple are now in court fighting for their right to plant their garden.
Wed, 01 Jun 2016 11:03:00 -0400
(image) In an important victory for property rights nationwide, the U.S. Supreme Court ruled 8-0 on Monday that landowners have the right to seek judicial review of federal determinations which say that their properties contain "waters of the United States" subject to stringent regulations under the Clean Water Act.
The case of U.S. Army Corps of Engineers v. Hawkes Co., Inc. centered on a peat-mining business that has been prevented from using some of its property because the Army Corps of Engineers determined that the land in question contained federally protected wetlands. The Hawkes Co. disagreed with that determination and set out to challenge it in federal court. But the federal government maintained that judicial review was not an option for landowners at this stage under the Clean Water Act.
In his opinion, Chief Justice John Roberts rejected the federal government's position. "If respondents discharged fill material without a permit, in the mistaken belief that their property did not contain jurisdictional waters, they would expose themselves to civil penalties of up to $37,500 for each day they violated the [Clean Water] Act, to say nothing of potential criminal liability," Roberts observed "Respondents need not assume such risks while waiting for EPA to 'drop the hammer' in order to have their day in court."
All eight justices concurred in Roberts' judgment. However, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, wrote separately in order to criticize the "ominous reach" of the Clean Water Act itself. The act, Kennedy wrote, "continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the Nation." In effect, Kennedy, Thomas, and Alito just invited future litigants to file more property rights cases against the Clean Water Act.
Wed, 11 May 2016 10:31:00 -0400The story of how cops stole $20,000 from Guillermo Espinoza, a construction worker with no criminal record, is sadly familiar in most respects: In July 2013, while driving through Arkansas on his way to Texas, Espinoza was pulled over by a state trooper who discovered a large amount of cash in the car, which he viewed as inherently suspicious. The money was seized and eventually forfeited based on vague allegations of drug-related activity. But there's a twist: There was so little evidence of such activity that local prosecutors decided to drop the forfeiture case. The judge would not let them, and last week a state appeals court declined to review that astounding decision because Espinoza had missed a filing deadline. It's not clear why Arkansas State Police Sgt. Dennis Overton decided to stop Espinoza, who was traveling with his girlfriend, Priscila Hernandez. The legal justification for pulling Espinoza over was missing from the state's September 2013 forfeiture complaint, which referred without explanation to "the traffic stop," and from Circuit Court Judge Chris Williams' September 2014 order authorizing permanent confiscation of the money, which said only that the stop was "proper." In his response to the forfeiture complaint, Espinoza argued that the stop was illegal, so it would be nice to know what the rationale for it was. While police have no shortage of excuses for pulling motorists over, they are supposed to settle on at least one. After the stop, Judge Williams said, a "State of Arkansas drug dog was transported to the site in order to conduct a search of the vehicle." That's a revealing way of putting it, since according to the Supreme Court walking a drug-sniffing dog around a car does not qualify as a search. But if the dog "alerts" to the car, the Court says, that alone supplies probable cause for a search. So what Williams evidently meant was that Sgt. Overton requested a drug dog on the assumption that it would give him the permission he needed to search the car. But according to Williams, "It is obvious from the tape [of the traffic stop] that the dog did not alert on the vehicle at the scene of the stop." Undeterred, Overton asked for permission to search the car, which Espinoza supposedly granted—a pretty suspicious sequence of events. Why bother bringing in a drug dog to justify searching a car if the driver is willing to give his consent? In any case, Williams said, "the dog alerted on a computer bag," inside which Overton found $19,894 in cash, mostly wrapped in $1,000 bundles. Overton found no contraband, drug paraphernalia, or any other sign of illegal activity. But as far as he was concerned, the cash itself was conclusive evidence that Espinoza was involved in drug trafficking. "I've worked this interstate for the last eight years," Overton told Espinoza, according to the transcript of the dashcam video, which Williams appended to his order. "Half of my career I've spent out here. OK? Nobody—nobody—carries their money like that but one person. OK? People that deal with drugs, and deliver drugs. That's it. Nobody else. Nobody." In other words, Overton always treats people who carry large amounts of cash as criminals, which proves that only criminals carry large amounts of cash. Espinoza, who had no criminal record and was never charged in this case, said the money came from years of construction work, and he later presented checks, receipts, and tax forms to substantiate that income. He said he took the money with him to Memphis because he was planning to buy a 4x4 truck there. But he was not happy with the advertised vehicle, so he did not complete the purchase. He offered to show Overton text messages he had exchanged with the truck seller and said his boss, whom he offered to call, would vouch for him. Overton, already convinced of Espinoza's guilt, was not int[...]
Sat, 30 Apr 2016 10:30:00 -0400In The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (2000), Peruvian economist Hernando de Soto argued that the underlying cause of Third-World poverty is weak property rights. Citizens of poor countries can't securely develop plots of land or put them up as collateral because they don't have clear legal titles. In a world "where ownership of most assets is difficult to trace and validate and is governed by no legally recognizable set of rules," de Soto wrote, "most assets, in short, are dead capital." De Soto is now part of a new initiative to use the "blockchain," the technology that undergirds the digital currency Bitcoin, to solve the dead capital problem. The San Francisco-based Bitcoin company BitFury announced last week that it was working with de Soto and the Republic of Georgia on a project to use blockchain technology to build a new land registry, as Forbes first reported. "By building a blockchain-based property registry," one Georgian government official said in a statement, the country "can lead the world in changing the way land titling is done and pave the way to additional prosperity for all." A "blockchain" is essentially an online database with attributes that make it well-suited to protecting the integrity of land registries. The first thing that sets blockchains apart from other databases is that anyone with a computer and an internet connection can download a complete copy. And the information contained in the file is constantly updated through the internet (roughly every 10 minutes in the case of the Bitcoin blockchain). This means the most up-to-date information is always publicly accessible. And the government has no power to tamper with or delete the information stored on a blockchain because the data can only be altered by using secret passwords dispersed among users. Yet uploading actual land titles to a blockchain is impractical because these distributed databases aren't designed to hold very much information. So companies in this space are devising elegant ways to anchor large data sets to the blockchain in ways that piggyback on its security and immutability, even when the specific information itself is stored elsewhere. BitFury isn't the first company to work in this space. The Austin, Texas-based company technology company Factom has been in talks since 2015 with the government of Honduras to use blockchain technology to build a secure land registry in that country. Currently, Honduras stores its title records in a room at the bottom of "dusty stairs" in a "nasty old government building," Factom CEO Peter Kirby said in an interview last year with Reason. Until recently, the room had no door. "Anybody could go in, pull down a book, open up the spine, and replace a title record with a new title record," Kirby said. Some government bureaucrats have altered the records to assign themselves beachfront property. The Honduran government did at one point attempt to digitize its land records, but the database it built was unuseable. A tamper-proof land-titling system, says Kirby, will lead poor countries to build "all of the infrastructure we take for granted in the developed world." For more on blockchain technology, click below to watch a recent Reason TV video on Ethereum, a new blockchain platform that's well-suited for land registries and many many other types of applications: src="https://www.youtube.com/embed/H6bGuKN3m6E" frameborder="0" height="340" width="560">[...]
Mon, 11 Apr 2016 12:10:00 -0400
(image) Hinga Mbogo is a Kenyan immigrant who has owned Hinga's Automotive Company in Dallas for 30 years. But because car repair shops are inconsistent with the local government's vision for an arts district, he may be forced to close. Even worse, there is no legal obligation for Dallas to compensate Mbogo for his property.
The saga began back in 2005 with Planned Development District 298. The city rezoned Ross Avenue, home of Hinga's, and made car repair shops illegal there. All other mechanics in the area have left as a result.
"When I found out about the zoning change, I couldn't believe that this was something that could happen in America," Mbogo said in a statement released by the Institute for Justice. "I left a country where something like this could happen, but not here. I thought that America was the land of opportunity."
The original law gave business owners three to five years to either sell their property or repurpose it as something more palatable to lawmakers, such as a hotel or restaurant. The ordinance did allow owners to file an appeal for a fee.
Because this is considered a simple zoning change rather than eminent domain—that is, the government's "right" to expropriate private property for public use—Dallas does not even have to compensate the business owners affected.
Mbogo was granted an extension until 2013, at which point he applied for a ten-year Specific Use Permit. Instead, the city gave him a two-year permit that expired in August of last year.
Mbogo has filed for another permit, but his request was rejected by the Dallas Plan Commission back in February—against the recommendation of the commission's staff. According to his local counsel, Daniel Branum, he has spent approximately $9,000 on the battle since 2010.
The city council is set to hear his case on April 13. There is a change.org petition with over 43,000 signatures asking the body to let Mbogo keep his business.
But even if his permit is approved, it will be temporary, meaning Mbogo could end up fighting the same battle all over again in a couple of years. The only permanent solutions to the conflict would be for the city council to repeal the zoning ordinance or for Mbogo to back down and sell his property.
Tue, 29 Mar 2016 11:01:00 -0400
(image) If nothing is done to reform open-access fisheries around the world, fishing stocks could drop by as much as 77 percent below current levels by 2050, reports a new study in the Proceedings of the National Academy of Sciences. If, however, property rights were assigned to individual fishers or communities, the yield trajectory of most of the world's fisheries would shift sharply upward and most would recover biologically in only 10 years. These conclusions were reached by a team of researchers led by University of California, Santa Barbara environmental scientist Christopher Costello in their study, "Global fishing prospects under contrasting management regimes."
The team evaluated data from 4,713 fisheries world which represent 78 percent of the world's reported fish catch and found that only a third of them are in good biological shape. Most of these are more or less open-access commons in which fishers race one another to catch as many fish as possible. Leaving a fish behind means leaving it for other competitive fishers to catch, thus open-access leads to a race to the biological bottom that eventually destroys a fishery. A good close to home example is the collapse and closure of the cod fishery off Newfoundland in 1992. Although the cod fishing moratorium essentially continues, that fishery has yet to recover to anywhere close to its historic productivity.
The new study argues that establishing "rights based fishery management" reforms would boost annual global catch by 16 million metric tons over current levels, yield an additional $53 billion in profits to fishers, and increase overall biomass by 619 million tons. Rights based fishery management means giving property rights to fishers. If a fisher owns 1 percent of fishery, he or she realizes that 1 percent of a growing fishery means more fish and more profits.
Even the Washington Post's editorial board endorsed the fisheries property rights reforms outlined in the study:
To bring about this happy ending, governments must give fishermen a stake in the overall health of their fisheries. One way to accomplish this is to require fishermen to hold rights to catch a certain amount of seafood in a certain fishery, which allows governments to manage the total haul and reduces the frenzied competition to scoop up as much as possible as quickly as possible. Ideally, these “catch shares” could be bought and sold so that rights would end up with those who could fish most efficiently.
If you remember nothing else, please remember: Anything you think of as an environmental problem is occurring in an open-access commons.
Note: I will be speaking about free market environmentalism and my new book The End of Doom: Environmental Renewal in the 21st Century on Saturday, April 2 at Florida Gulf Coast University at the Students for Liberty Conference on that topic. Go here for more details.
Wed, 23 Mar 2016 08:30:00 -0400Early in the morning on June 9, 2012, police responding to a report of a home invasion in North Chicago, Illinois, found $271,080 inside a safe in a minivan parked outside the house. If you are familiar with civil asset forfeiture, you can guess what happened next: The cops took the cash, alleging that it had something to do with drug trafficking. But you might not guess what happened after that: Last week a federal appeals court took a stand against government-sanctioned robbery, saying assumptions cannot take the place of actual evidence when police claim property is tainted by crime. Pedro and Abraham Cruz-Hernandez, brothers who lived at the North Chicago house with six other people, said the money was their savings from 12 years of legitimate work. Pedro, who owned the minivan, said he had moved the safe there because he was worried that whoever had broken into the house would come back. Unmoved by the brothers' protests, U.S. District Judge Joan Gottschall approved the forfeiture without a trial, saying they had not established that the money was theirs and that in any case the govenment "pointed to substantial circumstantial evidence indicating that the claimants' interest in the money is not legitimate and that the money is connected to criminal activity." Nonsense, said the U.S. Court of Appeals for the 7th Circuit in a ruling issued last Thursday. In fact, writes Judge Diane Wood on behalf of a unanimous three-judge panel, "the government has presented virtually no evidence that the brothers are involved in drug trafficking." While police found "a handgun, a digital scale, and a small amount of marijuana" in one of the bedrooms of the house, the government did not establish whose bedroom it was or show any connection between those items and the cash in the van. A drug-sniffing dog supposedly alerted to the van, on the strength of which police obtained a warrant to search the vehicle, and a second dog supposedly alerted to the safe, but no drugs were found in either place, and "the government did not submit to the court any evidence of the dogs' training, methodology, or field performance." Although it might not be obvious from the way cash-hungry cops routinely behave, the fact that someone has a large amount of currency is not enough by itself to justify a seizure. "Absent other evidence connecting the money to drugs," Wood writes, quoting an earlier 7th Circuit decision, "the existence of money or its method of storage are not enough to establish probable cause for forfeiture," let alone meet the "preponderance of evidence" test for keeping the money. Doing the math, she concludes that the owners' explanation of where the money came from is plausible: There is evidence in the record that supports the brothers' testimony that they earned the money legally. They documented income since 2000 that between them totaled just over $680,000. After subtracting the money found in the safe and all other expenses described in their depositions and other records, the brothers had approximately $320,214—roughly $1,026 each per month—left to cover living expenses. The government pointed to no evidence suggesting that any of the brothers’ evidence of income is fabricated or that they have lavish spending habits. Because the brothers realistically could have saved the $271,080 at issue, there is a genuine dispute of fact that precludes summary judgment for the government. Given the weakness of the government's case and the plausibility of the brothers' story, Wood says, Pedro and Abraham Cruz-Hernandez deserve their day in court. "There is a genuine dispute over whether the money in this case is substantially connected to drug trafficking," she concludes, and "a jury reasonably could believe [...]
Tue, 08 Mar 2016 11:32:00 -0500
(image) Today the Florida House of Representatives unanimously approved what the Institute for Justice describes as "a major overhaul of the state's civil forfeiture laws." The bill, which was unanimously approved by the state Senate on Friday, will become law if it is signed by Gov. Rick Scott.
The bill, S.B. 1044, would require police to make an arrest in most cases before seizing property allegedly tied to a crime and change the standard of proof for keeping the property from "clear and convincing evidence" to proof beyond a reasonable doubt—the standard that applies to criminal cases. S.B. 1044 also would increase the filing fee a law enforcement agency must pay to begin a forfeiture action, require the agency to pay a $1,500 bond that goes to the property owner if he prevails, make it easier for innocent property owners to recover legal fees, increase oversight of forfeitures by the courts, and require law enforcement agencies to report forfeitures so the state can keep track of them. "This is a major first step to ending civil forfeiture in Florida," says Justin Pearson, managing attorney at the Institute for Justice office in Florida.
Sen. Jeff Brandes (R-St. Petersburg), the primary sponsor of the bill, was inspired to propose reforms after hearing about abuses such as the 2012 airport seizure of €100,000 in cash from a Miami businessman, money that was kept by the Miami-Dade Police Department long after it became clear that he was not involved in criminal activity. "Under current law," Brandes recently told WFSU, the NPR station in Tallahassee, "government can seize assets without actually making an arrest of a person, and I think people are just generally shocked by that fact. How can the government take something from a Floridian—from a citizen—without charging them with a crime?"
Thu, 11 Feb 2016 15:46:00 -0500
(image) "There is a place, I think, for jury nullification." So said Supreme Court Justice Sonia Sotomayor in a talk this week at New York University Law School. As my colleague Jacob Sullum pointed out in response, jury nullification can be a good thing from a libertarian point of view, as it means "that jurors sometimes should consider information that the judge considers irrelevant. In a drug case, that information might include the stiff mandatory minimum awaiting the defendant, the defendant's medical or religious motivation for violating the law, or the arbitrary disparity in punishment between crack and cocaine powder offenses."
This is not the first time that Justice Sotomayor's legal views lined up with those of libertarians. In her November 2015 dissent in Mullenix v. Luna, for example, Sotomayor faulted her colleagues on the Court for "sanctioning a 'shoot first, think later' approach to policing [that] renders the protections of the Fourth Amendment hollow." Earlier that same year, during oral argument in Rodriguez v. United States, Sotomayor lectured a Justice Department lawyer on why "we can't keep bending the Fourth Amendment to the resources of law enforcement." It was a moment to warm even the coldest of libertarian hearts.
Yet Sotomayor is not always so constitutionally vigilant. During the same 2015 SCOTUS term, for example, the justices heard the case of Horne v. United States Department of Agriculture. At issue was the USDA's attempt to force a pair of California raisin farmers named Marvin and Laura Horne to surrender a portion of their raisin crop each year to federal authorities for the purpose of creating an "orderly" domestic raisin market. The central question before the Supreme Court was whether the government's attempt to confiscate those raisins (or their cash equivalent) counted as a taking under the Fifth Amendment, which requires the payment of just compensation when the government takes private property for a public use.
"Sounds like a taking to me," observed Justice Stephen Breyer during oral argument. And Breyer was not the only one who thought so. The Court ultimately ruled 8-1 that the government's attempt to take raisins qualified as an attempt to take raisins. Only Justice Sotomayor agreed with the USDA's claim that the Fifth Amendment had no bearing on the matter because the case did not involve any sort of taking at all. "The government may condition the ability to offer goods in the market on the giving-up of certain property interests," she asserted in her dissent. So much for not bending the Bill of Rights in favor of the government.
Justice Sotomayor is often a welcome voice in defense of civil liberties and the Fourth Amendment. Too bad she can't seem to muster the same respect for the Fifth.
Fri, 05 Feb 2016 15:00:00 -0500It is not unusual for cities (both large and small) to have nuisance abatement laws that allow for landlords or government officials to evict people from residences when there's chronic illegal behavior taking place there. Often it's tied to the relentless, doomed war against drugs and vice, trying to shut down drug dens and brothels (that exist because of the black market the bans create in the first place, but never mind). But as the New York Daily News, working with ProPublica, have discovered, New York City's nuisance abatement laws are particularly bad. They're being used to eject people out of their homes by the New York Police Department, but in many cases, the city has failed to prove criminal activity actually happened. They reviewed more than 500 nuisance abatement actions over 18 months in 2013 and 2014 and discovered that half of nearly 300 people who gave up their leases or banned from their homes had not been convicted of any crimes. Of those, 96 had their cases dismissed and 44 faced no criminal prosecution at all. The Daily News provides plenty of real world examples of how this plays out: A man was prohibited from living in his family home and separated from his young daughter over gambling allegations that were dismissed in criminal court. A diabetic man said he was forced to sleep on subways and stoops for a month after being served with a nuisance abatement action over low-level drug charges that also never led to a conviction. Meanwhile, his elderly mother was left with no one to care for her. How do the police get away with this? Blame laws from the 1970s designed to clean druggies and prostitutes from Times Square. Police have since expanded the use of the laws far beyond the initial intent. They're enforced as civil matters, often much like what happens with asset forfeiture cases. Not only does the city not have to get a conviction first, making it a civil case means that those facing eviction don't have guaranteed access to a lawyer, unless they can pay for one themselves. And given that the law is primarily used in poor, minority-dominated neighborhoods (only five of the people who were booted from their homes were white), that's not likely to happen. And there's so much more. One of the officers behind some of the nuisance abatement cases is the "most-sued" officer on the NYPD's force, according to the New York Daily News. He has been named in 32 different lawsuits that have cost the city $1.4 million in payouts. He has been put on desk duty for allegedly fabricating buys from confidential informants to use to get search warrants. In addition, police often ask judges to lock tenants out of their residences immediately as an "emergency," even though there is no evidence that there's any emergency taking place. These actions often take place months after the reported offenses. Many judges simply approve the requests anyway, but some have taken notice and decline, giving residents a chance to appeal. Read the whole sordid story here. The Daily News tracked down Sidney Baumgarten, the former city official who had the law drafted in the 1970s. Even he thinks it's being abused and described the police department's behavior as "unconstitutional" and "overreaching."[...]