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Property Rights

All articles with the "Property Rights" tag.

Published: Sat, 17 Feb 2018 00:00:00 -0500

Last Build Date: Sat, 17 Feb 2018 17:58:16 -0500


City Demands $6,000 from Woman over Illegal Chickens

Wed, 14 Feb 2018 11:55:00 -0500

Ramona Morales, a landlord in Indio, California, was cited $225 because one of her tenants was raising chickens in the backyard of a home, in violation of city ordinance. Such citations are not terribly unusual. The surprise came later. A private firm the city had hired to handle code enforcement violations billed her for thousands of dollars for the cost of her own prosecution. She ended up paying nearly $6,000. This scheme to cash in on relatively minor code enforcement issues was investigated and exposed by Desert Sun reporter Brett Kelman last November. This week the property-rights-protecting lawyers of the Institute for Justice waded into the fight. On Tuesday they filed a class action suit against Indio, the nearby city of Coachella, and the law firm Silver & Wright. Their aim: to stop this oppressively expensive code enforcement racket. Here's how this scheme works. In these towns, when code enforcement officers track down issues like broken windows or unpermitted construction, they don't simply cite the offenders and demand they fix it. They turn the cases over to Silver & Wright for criminal prosecution. Typically the property owners plead guilty and are ordered to pay small fines, as happened with Morales. Then, months later, they get a bill for thousands from Silver & Wright demanding that they pay the law firm's fees for the costs of being prosecuted. They can appeal, but that brings another kick in the gut: a second bill charging them even more money for the legal costs of fighting the appeal. One Coachella man was charged tens of thousands of dollars in prosecution fees over an unpermitted expansion of his living room. Another family has been billed nearly $40,000 over code violations that were mailed to a woman who had died at a property that was sitting vacant. When I first blogged about this nasty business, I noted that Silver & Wright's website bragged that the firm could find ways to "make nuisance abatement and code enforcement cost neutral or even revenue producing." (Interesting note: I can no longer find this quote on the site.) The Institute for Justice also took note of the firm's promise that cities could make money off code enforcement. In its announcement of the suit, which is being pursued with the help of the lawyers of O'Melveny & Myers, the institute notes that California courts have ruled that it's illegal for prosecutors to have a direct financial stake in the cases they pursue. Institute for Justice attorney Jeffrey Redfern breaks down the consequences: No one should have a warrant out for their arrest and be forced to pay $6,000 to resolve a simple dispute about a few backyard chickens. This could have been resolved with a simple phone call, but it wasn't, in part, because Silver & Wright's business model creates a perverse financial incentive to prosecute cases like Ramona's in criminal court, rather than treat homeowners with goodwill. The institute is trying to get the courts to shut this whole system of enforcement down and to return the money paid by Morales and others who have been fleeced by the firm. Below, watch a video from the Institute for Justice explaining how this racket works: src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">[...]

Exposing Taxis to Competition from Uber and Lyft Is Not a Taking that Requires Compensation Under the Constitution

Mon, 05 Feb 2018 10:20:00 -0500

It is no secret that taxi company profits have taken a major hit because of competition from ride-sharing services such as Uber and Lyft. Some cab companies have tried to recoup their losses by filing lawsuits claiming that they are entitled to compensation under the Takings Clause of the Fifth Amendment, which mandates that the government must give "just compensation" to people whose "private property" is taken by the state. They contend that jurisdictions that issue medallions to taxi companies have, in effect, created a property right entitling those firms to exclude competition from ride-share services. A recent ruling by federal district Judge Michael Baylson of the Eastern District of Pennsylvania rightly rejects such a claim filed by Philadelphia cab companies [HT: Nick Sibilla of the Institute for Justice]. The key flaw in the taxis' position is well summarized by an earlier opinion in a similar case decided by the Seventh Circuit Court of Appeals in 2016. It was written by Judge Richard Posner, probably the most distinguished federal lower court judge of the last several decades. Baylson quotes part of the following telling passage from Posner's ruling: [T]he City [of Chicago] is not confiscating any taxi medallions; it is merely exposing the taxicab companies to new competition —competition from Uber and the other TNPs [Transportation Network Providers]. "Property" does not include a right to be free from competition. A license to operate a coffee shop doesn't authorize the licensee to enjoin a tea shop from opening. When property consists of a license to operate in a market in a particular way, it does not carry with it a right to be free from competition in that market... Indeed when new technologies, or new business methods, appear, a common result is the decline or even disappearance of the old. Were the old deemed to have a constitutional right to preclude the entry of the new into the markets of the old, economic progress might grind to a halt. Instead of taxis we might have horse and buggies; instead of the telephone, the telegraph; instead of computers, slide rules..... Taxi medallions authorize the owners to own and operate taxis, not to exclude competing transportation services. The plaintiffs in this case cannot exclude competition from buses or trains or bicycles or liveries or chartered sightseeing vehicles or jitney buses or walking; indeed they cannot exclude competition from taxicab newcomers, for the City has reserved the right... to issue additional taxi medallions. Why then should the plaintiffs be allowed to exclude competition from Uber? The issuance of medallions does not create a legal right to to exclude competitors, even if cities often used the medallion system to create an artificial scarcity of competition, thereby fleecing consumers and driving up taxi company profits. Baylson also effectively refutes the Philadelphia taxi firms' claim that the Philadelphia medallion system should be interpreted to create a constitutionally protected property right even if similar systems in other cities do not (see pp. 55-56 of his opinion). The simple fact of the matter is that, while the medallions may be protected property rights, "[t]here is no allegation that the government seized or confiscated medallions." And the medallions do not create constitutionally protected "property rights in the transportation market itself, which are nowhere mentioned in statute [that established the medallion system]." I would go further and suggest that even if the laws conferring medallions did explicitly guarantee the holders protection against competition, that still would not be enough for courts to require compensation under the Takings Clause. The Clause does not require government to compensate businesses for any and all policies that reduce their profits. Compensation is only necessary if the government takes "private property." A state-created legal right to exclude competitors from a market is not private property. It goes beyond giving the holder control over his or he[...]

Neil Gorsuch and Samuel Alito Butt Heads Over the Fourth Amendment, Again

Thu, 01 Feb 2018 10:05:00 -0500

A major split seems to be developing between conservative justices Neil Gorsuch and Samuel Alito over the issue of property rights and the Fourth Amendment. The most recent evidence of this division came on January 9, when the U.S. Supreme Court heard oral arguments in Byrd v. United States. This case arose in 2014, when a woman named Natasha Reed rented a car and allowed her fiancé, Terrence Byrd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Byrd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Byrd is fighting to have that evidence thrown out as the fruits of an illegal search. The question presented to the Supreme Court is this: "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?" During the oral arguments, Justice Neil Gorsuch observed that Byrd's lawyer, Robert Loeb, had offered a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title." "We think the property interest here, the right that...Mr. Byrd would have had to bring a trespass action," Loeb replied, "demands a recognition of his right to invoke the Fourth Amendment." In other words, Byrd had "possession" of the car under common law principles. If, while driving it, somebody else tried to break in and steal it from him, he would have a common law right "to bring a trespass action," as Loeb put it, against that would-be thief. In this case, the trespasser is law enforcement, which, absent probable cause, has no authority to search the trunk. Justice Samuel Alito apparently did not like the sound of that. "The problem with going down this property route is that we go off in search of a type of case that almost never common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th-century America? Never." Loeb pushed back on Alito's characterization. "It's your right to bring trespass action against a stranger," he told Alito. "The fact that you can exclude a stranger and bring a trespass action against him is what supports your property right under the Constitution." A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed. "The Constitution uses the word 'property' numerous times," Alito told Loeb, "but the word 'property' doesn't appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnson's dictionary as 'goods or movables.'... Is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?" "I think if the common law recognizes your [right]," Loeb replied, "then both under the common law and common sense, that it makes sense to recognize a right to invoke a Fourth Amendment right." Gorsuch remained quiet during those exchanges between Alito and Loeb. But he spoke up again in favor of the property rights theory during the second half of the oral arguments, when Assistant to the Attorney General Eric Feigin was presenting the government's side of the case. According to Feigin, Byrd, "like other unauthorized drivers, simply has no connection to the car at all." "Mr. Faigin, you keep saying that," Gorsuch said, "but as a matter of property law, now and forever, a possessor would have a right to exclude other people but for those with better title. So someone in this position would have a right, I th[...]

This California City Is Threatening a Family Over Property Fines Sent to a Dead Woman at the Wrong Address

Thu, 18 Jan 2018 13:25:00 -0500

Not even your death will keep the government of Coachella, California, from trying to nickel-and-dime you out of every last cent. Just ask the family of Marjorie Sansom, who died in 2016 at age 91. The city levied thousands of dollars in fines on the woman due to code violations on a lot she abandoned. It tried to collect them by mailing bills to an empty house where she hadn't lived for years. Samson, meanwhile, was suffering from dementia and being cared for by her family, which says it never received any of those mailings. Now the city is demanding that the family cough up $39,000 to cover the back fines and to pay for the cleanup for the empty lot. That's more than the value of the property itself. Worse still, officials are being dismissive of evidence that the city knew its complaints were not reaching the woman or her family. The government just wants its money. The whole outrageous story was carefully investigated and reported by Brett Kelman of the Palm Springs Desert Sun. It's a follow-up to a heavily researched piece he published in November, which documented how Coachella and a private legal firm the city had contracted with were abusing code enforcement regulations to extract huge sums from property owners. The city would cite property owners for typical code violations, like having damaged property or for unapproved home upgrades. Months later, the property owners would get massive bills from the legal firm, charging them for the cost of prosecuting them in the first place. That law firm, Silver & Wright, is in the thick of the Sansom case. It sent the woman invoices (still mailed to the wrong address) demanding thousands of dollars in fines, court fees (even though there were no court hearings), prosecution fees (nobody was prosecuted), and reimbursement to the city for the time spent cleaning up the lot. In Kelman's story, neither the city nor the law firm shows any signs of worry that they've gone too far. Despite threatening this family with liens of thousands of dollars for fines they didn't even know existed, the city and the firm insist they're doing everything above the board: When asked to comment on the Sansom's property this month, Coachella officials and a city attorney said that they were unaware of the owner's advanced age, mental state, true address or death at any point during the nuisance property case, but still stood by the actions taken by the city. Luis Lopez, Coachella's development services director, said the city presumed the citations and legal notices it had mailed to Sansom were received—even though they were notified twice by the U.S. Postal Service that the documents were sent to a vacant house. Lopez also defends holding Sansom's heirs responsible for her debt, saying her legal guardian should have been maintaining her land and that funds collected from the lien would "go towards replenishing the public's money" that was spent to inspect and clean her property. After The Desert Sun noted that a majority of Sansom's debt came from punitive fines, which are not reimbursement of public money, Lopez said the family should still pay because of their negligence. "The city believes these fines are justified in this case due to the willful, or at least reckless, disregard for the public safety of the community which includes an elementary school as evidenced by the nuisance on the property," Lopez wrote in an email statement. "Additionally, the fines are justified because there was no 'good faith' effort by the owners or successors in interest to contact the city, pay part of the citations or abate the nuisance." Reminder: The family says they never saw the citations because they were sent to an abandoned house, not to them. Kelman even has a photo of the certified letter that was returned to the city, informing them that the address they were mailing was vacant. The family found what has happening from the Desert Sun itself, which tracked the family down while investigating the city's use of the law [...]

Florida Couple Fined $50 Per Day for 'Illegal' Treehouse on Their Own Property

Wed, 10 Jan 2018 16:45:00 -0500

(image) A private treehouse overlooking the ocean should have been a source of relaxation and fun for Florida couple Lynn Tran and Richard Hazen. But the hideaway, built on beachfront property they owned on Anna Maria Island, wound up rooting them in a prolonged legal battle with local authorities.

After exhausting their options in Florida, Tran and Hazen appealed to the U.S. Supreme Court—which rejected the case on Monday. The Second District Court of Appeal rejected the case in 2015. That means the couple has no recourse but to respect a circuit court judge's initial ruling to take the treehouse down.

Tran and Hazen built their treehouse in 2011, after local authorities informed them that no special permit would be required to built it. The structure cost them about $25,000.

But in 2013, an anonymous complaint to Holmes Beach city officials noted that the treehouse had actually been built on land where such structures were prohibited. A subsequent inspection from Holmes Beach code enforcement determined that Tran and Hazen's treehouse was in multiple violations of the city code. It also faulted the couple for failing to get proper building permits.

Now the city is fining the couple $50 every day the treehouse remains up.

The kicker? Tran and Hazen can't start tearing down the treehouse until they get the proper permits for tearing down a Holmes Beach home.

California Bill Cutting Back Zoning Could Increase Access to Housing and Jobs for Millions

Tue, 09 Jan 2018 10:15:00 -0500

As economists and other experts on both right and left have come to recognize, restrictive zoning is one of the biggest obstacles to affordable housing and job opportunities for the poor and lower middle class. Zoning restrictions on housing construction literally lock out millions of people from housing and job markets, greatly lower the potential incomes of the poor and lower middle class, and impeding economic growth. The state of California - especially the San Francisco Bay area - has some of the nation's most egregious zoning rules. A new bill in the California state legislature, sponsored by liberal Democratic state Senators Scott Wiener (San Francisco) and Nancy Skinner (East Bay), and Democratic Assemblymember Phil Ting (San Francisco) would radically alter this sorry state of affairs. Henry Grabar has a helpful description at Slate: Wiener's bill, SB-827, flies in the face of every assumption Americans have held about neighborhood politics and design for a century. It also makes intuitive sense. The bill would ensure that all new housing construction within a half-mile of a train station or a quarter-mile of a frequent bus route would not be subject to local regulations concerning size, height, number of apartments, restrictive design standards, or the provision of parking spaces. Because San Francisco is a relatively transit-rich area, this would up-zone virtually the entire city. But it would also apply to corridors in Los Angeles, Oakland, San Diego, and low-rise, transit-oriented suburbs across the state. It would produce larger residential buildings around transit hubs, but just as importantly it would enable developers to build those buildings faster. As Wiener describes in a Medium post about the bill, a McKinsey study finds that, if enacted, it could well facilitate the construction of some several million new housing units in urban and suburban areas within California. Many of them would be in areas with numerous job opportunities, such as Silicon Valley, which currently shuts out large numbers of people with its zoning rules. Wiener's bill is not perfect. For example, I disagree with its requirement that buildings within the affected areas have maximum height requirements of 45 to 85 feet (depending on the location), in cases where there were preexisting local height limitations that are lower than that. In my view, the height of a new building should almost always be decided by the owner, not the government. It would have been better to override local height limitations entirely, except perhaps in situations where taller buildings pose a threat to public safety. Nonetheless, the bill would be a truly revolutionary improvement over the status quo. It would simultaneously increase housing and job opportunities for the poor, facilitate greatly increased economic growth, and strengthen protection for property rights. As Grabar notes, the bill may well be "too radical to pass." It will surely face opposition from some current homeowners and a variety of powerful interest groups, including politically connected developers, influential landowners who benefit from inflated housing prices, and others. But even if it does not pass, it is a valuable addition to the political debate, and could help promote progress by expanding the "Overton Window" of policy options that become a part of mainstream discourse. As Cornell Law School Dean Eduardo Peñalver (a leading left of center property scholar), recently wrote in a Facebook post about Bill 827, "[i]ncreasingly, land use law will be where progressives and libertarians meet." It is hard to find a better example of this convergence than combatting restrictive zoning in California. This is an effort that deserves the support of libertarians, progressives, conservatives, and anyone else who cares about protecting property rights, affordable housing, expanding opportunity for the poor, or increasing economic growth. UPDATE: The [...]

Seattle Bans Landlords From Screening "Qualified" Tenants

Thu, 28 Dec 2017 10:10:00 -0500

The Pacific Legal Foundation, a pro-property rights public interest law firm, recently filed a lawsuit challenging a Seattle law that forbids landlords from picking and choosing among potential tenants. The purpose of the new regulation is to combat implicit or subconscious bias by landlords: Seattle is apparently breaking new ground by requiring landlords in the city to rent their housing units to qualified applicants on a first-come, first-served basis.... The goal is to ensure prospective renters are treated equally, according to Councilmember Lisa Herbold, who championed the policy. When landlords pick one renter among multiple qualified applicants, their own biases — conscious or unconscious — may come into play, she says.... Proponents of the policy hope it will reduce discrimination. Ann LoGerfo, a directing attorney with Columbia Legal Services who pushed for the policy, offered an example: A landlord with two qualified applicants picks a name he associates with his own ethnicity, rather than a name that sounds foreign to him. Deliberate discrimination on the basis of race, sex, ethnicity, religion, and related classifications is already forbidden by state and federal laws, such as the Fair Housing Act of 1968. But the Seattle law, in an attempt to combat subconscious discrimination, would eliminate landlords' ability to choose among potential tenants to a vastly greater extent. If an applicant meets minimal criteria, he or she must be accepted on a first-come, first-served basis, even if there are other applicants who have much better qualifications. It is surely true that landlords sometimes engage in subconscious discrimination. Indeed, the same is true of a wide range of people engaging in all kinds of transactions. It does not follow, however, that eliminating landlord choice is the right answer. Doing so is likely to harm tenants more than it benefits them. If landlords cannot rank potential tenants based on factors such as reliability, credit history, their treatment of previous rental properties, and so on, the predictable result is that they will either put fewer properties on the market to begin with, charge higher rent, increase security deposits, or some combination of these and other measures that make rental housing more costly. This likely to be particularly true of landlords who own properties in poor and minority neighborhoods, where landlords believe the risk of nonpayment or other problems is likely to be unusually high. Obviously, landlords' decisions about potential tenants are sometimes misguided, both because of unconscious bias and for other reasons. But if there is a substantial population of tenants whose reliability current landlords are underestimating, that's a potentially valuable profit opportunity for wiser landlords or new entrants into the housing market. Cities can strengthen such beneficial competition (and otherwise make housing more easily available to the poor and lower middle class) by reducing zoning restrictions that make it difficult to build new homes and massively inflate the cost of housing in many cities. Seattle itself is one of the best examples of this phenomenon. If the city wants to increase housing opportunities for minorities and the poor, it should cut back on zoning rather than adopt regulations that are likely to make rents even higher than is already the case. The Seattle law illustrates an important downside of trying to use government regulation to offset the subconscious cognitive biases of the private sector: there is little, if any reason to believe that voters and politicians are less biased than the people whose behavior they are trying to regulate. Much of the time, they are likely to be more so. Because the chance that any one vote will make a difference in an election is extremely small, voters have very little incentive to combat their biases, and often instead act as "politica[...]

Brickbat: Unhealthy Diet

Thu, 21 Dec 2017 04:00:00 -0500

(image) Florida's 3rd District Court of Appeal has upheld Miami Shores' ban on growing vegetables in front yards. The city has threatened Hermine Ricketts and Tom Carroll with fines of $50 a day for violating the law. The two have grown vegetables in their front yard for 17 years, but the city banned the practice in 2013.

How Using Eminent Domain to Seize Land for a Border Wall Harms American Property Owners

Thu, 14 Dec 2017 16:51:00 -0500

Building Trump's much-ballyhooed border wall will requiring using eminent domain to forcibly take the land of numerous property owners. If that happens, many of the property owners probably will not get anything like adequate compensation. A just-published study conducted by ProPublica and the Texas Tribune analyzed over 400 condemnations undertaken as a result of the Secure Fence Act of 2006, which authorized the construction of a much smaller barrier than Trump's proposed wall. Here is their summary of their findings: An investigation by ProPublica and the Texas Tribune shows that [the Department of] Homeland Security cut unfair real estate deals, secretly waived legal safeguards for property owners, and ultimately abused the government's extraordinary power to take land from private citizens. The major findings: Homeland Security circumvented laws designed to help landowners receive fair compensation. The agency did not conduct formal appraisals of targeted parcels. Instead, it issued low-ball offers based on substandard estimates of property values. Larger, wealthier property owners who could afford lawyers negotiated deals that, on average, tripled the opening bids from Homeland Security. Smaller and poorer landholders took whatever the government offered — or wrung out small increases in settlements. The government conceded publicly that landowners without lawyers might wind up shortchanged, but did little to protect their interests. The Justice Department bungled hundreds of condemnation cases. The agency took property without knowing the identity of the actual owners. It condemned land without researching facts as basic as property lines. Landholders spent tens of thousands of dollars to defend themselves from the government's mistakes. The government had to redo settlements with landowners after it realized it had failed to account for the valuable water rights associated with the properties, an oversight that added months to the compensation process. On occasion, Homeland Security paid people for property they did not actually own. The agency did not attempt to recover the misdirected taxpayer funds, instead paying for land a second time once it determined the correct owners. Nearly a decade later, scores of landowners remain tangled in lawsuits. The government has already taken their land and built the border fence. But it has not resolved claims for its value. The study's findings are consistent with previous research on takings compensation, which I summarized in Chapter 8 of my book on eminent domain, The Grasping Hand. Scholars have repeatedly found that many property owners get less than the "fair market value" compensation required by Supreme Court precedent, and that this is particularly likely for those who are poor, legally unsophisticated, and lacking in political influence. Even those who do get fair market value compensation still often are not fully compensated for all their losses, because many owners attach "subjective value" to their land above and beyond its market price. Consider, for example, a homeowner who has lived in the same neighborhood for a long time, or a small business with established customer "good will" in the area that may be hard to replicate elsewhere. During the 2016 presidential campaign, Donald Trump claimed that victims of eminent domain have nothing to complain about because "when eminent domain is used on somebody's property, that person gets a fortune." The history of the Secure Fence Act takings - and many other condemnations - proves otherwise. If it were really true that having your property condemned is a great way to make a fortune, the Donald Trumps of the world would be lobbying the government to take their property, instead of lobbying to condemn that of the politically weak in order to build parking lots for their casinos. If[...]

Butterflies, Border Walls, and Property Rights

Wed, 13 Dec 2017 11:15:00 -0500

Trump's border wall will be bad for people and bad for property rights. It will also be bad for butterflies. On Monday the North American Butterfly Association (NABA) filed a lawsuit in D.C. District Court alleging a pattern of intrusion and harassment by Customs and Border Protection (CBP) officials preparing for the construction of a border wall. Federal personnel and contractors, the lawsuit claims, have entered and cleared land on NABA's privately owned 100-acre Butterfly Center in southern Texas without the association's permission, in violation of several statutes as well as the Fifth Amendment to U.S. Constitution. "They've cleared vegetation that we wanted there that we placed there for butterflies. They stopped our employees from going on our private property," says NABA President Jeff Glassberg. Future plans to build a wall along a levee that bisects the Butterfly Center—an area that NABA has spent $7 million turning into a wildlife refuge for some 235 species of butterflies—would make over two thirds of the property inaccessible to visitors or staff, the lawsuit claims. "If you're an American citizen," Glassberg tells Reason, "you ought to be very concerned that the government can come on with no authorization and do whatever they want." The trouble began on July 20, when Marianna Trevino-Wright—the Butterfly Center's executive director—came across a team of uninvited workers using chainsaws and heavy equipment to clear vegetation along a private road that is wholly on the center's property. "I was like, 'Hi, what are y'all doing back here.' I mean was really that casual," says Trevino-Wright. "One of the guys with chainsaws said, 'We're clearing this land.' I said, 'You mean my land.'" A supervisor for the work crew told her that the men were there doing work for Customs and Border Protection. He did not elaborate, but he said that someone from the agency would be in touch with her shortly. Trevino-Wright immediately contacted a community liaison officer for the agency, who couldn't or wouldn't give her any information about what those workers were doing on her land. Neither could the five CBP agents who visited her the next day. Not until an August 1 meeting with Manuel Padilla Jr., the agency's sector chief for the Rio Grande Valley, did Trevino-Wright get any answers. According to Trevino-Wright, Padilla confirmed that the contractors were there on the agency's orders, that they were clearing the land to make way for the agency's "tactical infrastructure," and that they would return with "green uniformed presence"—that is, armed federal agents—to continue their work. Padilla, who is named as a defendant in NABA's lawsuit, reportedly told Trevino-Wright that any that locks or gates that interfered with this work would be cut down. Padilla also reportedly showed Trevino-Wright diagrams of the planned border wall, which would run through Butterfly Center property and which would require yet more of the center's land to be cleared for "secondary roads and government operations." In February, then–Secretary of Homeland Security John Kelly—also named as a defendant—issued a memorandum instructing CBP to "immediately begin planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads." Reason reached out to Customs and Border Protection to confirm many of these details, but was told it was against the agency's policy to comment on pending litigation. In his meeting with Trevino-Wright, Padilla also invoked the agency's power under the Immigration and Nationality Act to warrantlessly search any vehicles and people "within a reasonable distance" of the border. In 1953, this "reasonable distance" was set at 100 miles, an area that today contains 200 million peop[...]

Judge Halts Indiana Town's Cruel Attempt to Fine Residents Out of their Properties

Tue, 05 Dec 2017 12:40:00 -0500

(image) A judge in Indiana has stopped a city's nasty plot to make people sell their homes to a redeveloper or else face thousands of dollars of rapidly accumulating fines.

In Charlestown, Indiana, a community north of Louisville with a population of less than 8,000, the mayor and other city leaders have been trying to transfer ownership of private plots of land in the low-income neighborhood of Pleasant Ridge to a developer. This developer would then raze all the properties and build an entirely new neighborhood.

Charlestown did not take advantage of Kelo v. City of New London, the Supreme Court decision that allows the government to transfer property to a private developer via eminent domain. That would have required the city to pay the property's current owners.

Instead, the city targeted Pleasant Ridge with ruthless code enforcement. Property owners were cited and fined hundreds of dollars for every individual violation. Unlike the usual practice in code enforcement, the owners were not given any grace period to correct the problems before the fines were levied: They were levied immediately and compounded daily until the problems were fixed. And even when the violations were fixed, the owners had to pay the fines. The only relief offered to them came if they agreed to sell their properties to the developer.

Once the developer bought and boarded up the homes, by contrast, the city refrained from citing it for code violations. Neighbors complained that the company's properties were overgrown and full of garbage and weeds, creating a public health risk. But the law wasn't being used to target public health risks; it was being used to target people who wouldn't sell.

In February, the libertarian attorneys of the Institute for Justice stepped in, representing several landowners and a neighborhood association. Yesterday, a circuit judge in Scott County sided with the institute and its clients. Judge Jason Mount ruled that Charlestown had violated its own code enforcement regulations in order to target Pleasant Ridge. He has ordered the city to give property owners the opportunity to appeal citations and a grace period to actually fix problems before the city is permitted to start levying fines.

In a release, Institute for Justice Senior Attorney Anthony Sanders took note of the victory and the judge's acknowledgment of the unfair enforcement:

Today's ruling unmasks the City of Charlestown's and developer John Neace's actions for what they are: a naked land grab, taking from the poor to give to the rich. With this injunction in place, the city either must force Mr. Neace's company to pay several million dollars in fines or waive the fines it has illegally and unconstitutionally issued against the residents of Pleasant Ridge.

That's two wins in less than a week for the lawyers at the Institute for Justice. That's good news for private property rights.

Read more about the case here.

Musician Wins Return of $91,800 He Supposedly Gave Wyoming Cops

Mon, 04 Dec 2017 14:00:00 -0500

Phil Parhamovich went to court in Wyoming on Friday, hoping to convince a judge that he deserved a new hearing on the question of whether the state gets to keep the $91,800 that police took from him during a traffic stop last March. Instead the judge ordered the return of Parhamovich's money after he testified that it belonged to him and he had no desire to surrender it. Attorney General Peter Michael said his office will return the money rather than pursue the case further. Parhamovich, a Wisconsin musician, was on tour when he was pulled over on March 13 for failing to fasten his seat belt. A purported alert by a drug-sniffing dog led to a search of his minivan, during which the cops found no drugs but did discover cash hidden inside a speaker cabinet, which Parhamovich had brought with him because he worried that it wouldn't be safe at his apartment in Madison. He planned to use most of the money as a down payment on a Madison recording studio. Because the police falsely insinuated that carrying large amounts of cash is illegal, Parhamovich initially said the speaker and the money belonged to a friend. The cops pressured him into signing a waiver "giving" the money to the state Department of Criminal Investigation. The Institute for Justice, which represented Parhamovich, argues that police use roadside waivers like the one he signed are a thin disguise for highway robbery, bypassing even the modest protections that property owners have under Wyoming's civil forfeiture law. "Phil would have lost his life savings over the fact that he didn't wear a seat belt while driving through Wyoming," I.J. attorney Dan Alban told the Associated Press. "That's outrageous and needs to end." The unexpectedly quick resolution of the case was yet another victory against civil forfeiture abuse for I.J., which filed motions on Parhamovich's behalf just two weeks before Friday's order. Over the years, the libertarian law firm has repeatedly demonstrated the benefits of standing up to money-grabbing bullies. Here are half a dozen other cases in which I.J. clients got their property back after the organization publicized their predicaments: Christos and Markela Sourovelis Philadelphia police seized the couple's house in May 2014 after their son was caught selling $40 worth of marijuana outside it. I.J. filed a lawsuit on their behalf that August, and the Philadelphia District Attorney's Office dropped the forfeiture case in December 2014 after it attracted national publicity. The I.J. lawsuit, which is an ongoing class action, argues that Philadelphia's forfeiture practices are unconstitutional. Last July, as C.J. Ciaramella noted here, the city tried to settle the case by suggesting a judicial order that would prevent it from using forfeiture proceeds to fund law enforcement activities. "I think it's commendable that the city and D.A. want to stop this blatantly unconstitutional practice," I.J. attorney Darpana Sheth said, "but that does not end either this claim or the lawsuit because it does nor provide our clients or the 20,000 property owners they represent with full relief." Carol Hinders The Internal Revenue Service seized $33,000 from the Iowa restaurateur's bank account, alleging that she had deliberately kept her deposits below $10,000 to avoid triggering a federal reporting requirement, an offense known as "structuring." The government did not claim that Hinders had anything to hide through this purported scheme, since her money came from a legal business. But as far as the IRS was concerned, the fact that her cash was implicated in structuring was enough to make it ripe for forfeiture. In December 2014, just a few weeks after The New York Times ran a front-page story highlighting the case, Assistant U.S. Attorney Matthew Cole filed a[...]

Libertarianism Has Nothing to Offer Populist Authoritarians

Sun, 03 Dec 2017 08:00:00 -0500

I am mystified by the claim that the long-standing libertarian critique of democracy furnishes aid and comfort to conservatives who display a taste for populist authoritarianism. Let me say at the outset that the libertarian critique has nothing to offer those who would impose legal or social disabilities on racial, ethnic, religious, and other minorities. If white supremacists see something helpful here, they are mere opportunists who would find something helpful to their cause in anything they looked at. Right off the top we may ask where is this right-wing antipathy to democracy. On the contrary, I see a right-wing embrace of democracy even in the age of Trump. (Rush Limbaugh has long called himself the "doctor of democracy.") Which branch of government have conservatives of all stripes railed against most vigorously for decades? It's the judiciary, especially the U.S. Supreme Court. And what have the courts done to make conservatives so angry? They have invalidated actions of legislators—the supposed elected representatives of the people. Robert Bork and Antonin Scalia were not the first conservatives to inveigh against unelected judges for vetoing the will of the people as expressed through the democratic branches of government. Bork, whose defeat at the hands of Democrats as Ronald Reagan's nominee for the Supreme Court, energized conservatives with his articulate defense of—wait for it— majoritarianism. Libertarians opposed him for that reason. I once heard Scalia say his job was not to strike down legislative acts that were unconstitutional, just those that were "really unconstitutional." (I did not add the emphasis.) (We note here in passing that public choice analysis demonstrates that majority rule is in fact a chimera because special interests, as a result of collective-action problems among other things, are better positioned than the unorganized masses to achieve decisive clout over policy-making. Moreover, representative government was devised as a scam to defuse public opposition to what their rulers were doing.) By pointing all this out, I do not deny the authoritarian element on the right, which Trump has brought to the forefront. There's an unappreciated connection among democracy, populism, and authoritarianism, which Friedrich Hayek noted in The Road to Serfdom. Democracy is inevitably slow and messy; it can bog down in endless debate and factionalism. Then, under certain circumstances, it can produce a strongman who condemns the dithering and promises swift action to carry out the "will of the people." In contrast to conservatives, so-called liberal Democrats typically applaud court interference with legislatures, including Congress. (Remember, among others, Brown v. Board of Education and Roe v. Wade.) So who are the democrats and who are the anti-democrats? Are libertarians responsible for the Democratic Party's support for judges who strike down democratically enacted laws? To be sure, both "liberals" and conservatives are opportunists. They support judicial activism when it suits their agendas and oppose it when it does not. And, as Ilya Somin notes, each side tries to keep the other side's supporters from expressing themselves democratically, for example, through gerrymandering. But neither has been influenced by the libertarian critique of democracy. Still, it is conservatives who make opposition to the courts their signature issue—to the point of being willing to elect any Republican president on the grounds that judicial appointments matter above all else. It is libertarians (such as Randy Barnett) who have consistently espoused "principled judicial activism" over the conservatives' beloved "judicial restraint." Principled judicial activism is the maxim that jud[...]

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 eventua[...]

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?"[...]