Supreme Court Rules Cities May Seize Homes

Actually I am pleasantly surprised at how narrow the majority was. In the eighties, when the University of Chicago's Richard Epstein started arguing against such confiscations in his book Takings, he was widely dismissed as an extremist crackpot. Now his view has come within one resignation and one appointment of being the majority view, and it even has the support of many liberal citizens, as this thread shows. So the glass is at least 4/9 full.

Here are the positions of the nine justices (along with the president who appointed each.)

Majority: Steven G. Breyer (Clinton), Ruth Bader Ginsburg (Clinton), Anthony M. Kennedy (Bush I), David H. Souter, (Bush I), and John Paul Stevens (Ford)

Dissent: Sandra Day O'Connor (Reagan), William H. Rehnquist (Nixon), Antonin Scalia, (Reagan) and Clarence Thomas (Bush I).

I respectfully submit that your dismay of Republicans has blinded you, as it has in the medical marijuana case. By your own standards, all of the good guys in this case are Republicans. A majority of the bad guys are Republicans too, but that majority is narrow (3-2). Differently put, all Democrats are bad guys, and a majority of the Republicans are good guys (4-3), judging by your own standards. Maybe after a few more surprises like this, you will come to see what I have come to see after a few similar surprises about three years ago: In your country, the consequences of having conservative justices are much more benign than the consequences of conservative legislators and executives. (Low benchmark, I know.)

Yes, I obviously overreacted. It happens, and is a textbook case of the fact that my feelings of complete disgust for bush and everything that's gone down since he stole the election in 2000 sometimes blinds me to all other things. Guilty as charged your honor. Sorry cjhsa.

As for my feelings and opinions of bushco, SCOTUS, the new republiocan party, the new country the USA is turning into, I stand firm, unrepentant and unchanged in my opinions.

Thomas, as history has noted, it's those folks classified as the lunatic fringe who are the most prophetic. Diane's anecdote is just one that reverberates.

BVT, I concur, and I fear we haven't seen the last of voting irregularities, unfortunately. It's all in the way we say it, right?

To be fair, Epstein took his interpretation of the fifth amendment's "takings clause" to a level that many would still find crazy. Still, it's nice to see the Supreme Court start taking property rights more seriously again.


I didn't see Diane posting to this thread. What did her anecdote say?


My impression is that those "irregularities" are actually the norm at the Supreme Court. I remember seeing a table with the columns representing the Supreme Court judges, the rows representing Supreme Court cases, and the color of square (x, y) representing how judge x voted in case x. (Black for dissent, white for majority vote.) The table looked pretty random to me, which suggests that it's mostly hokum how the press corpse groups the judges into political teams the way it does. That's a good thing. You can accuse the Supreme Court justices of many things, but not of being party droids.

Joe, I always understood that the function of the Supreme Court is to interpret the Constitution. Since the fifth amendment includes the clause,



it seems to me that the Supreme Court has the authority to decide what is public use in this case, not the legislature.

I agree. This clause cannot sensibly be interpreted to mean "private property shall be taken for any use any legislature may feel like, provided it can make up a reason to call that use 'public'". If a government confiscates the property of poor people for the sole purpose of passing it on to someone richer and better-connected, that is a severe breach of the dispossed people's constitutional rights. Whether or not this is what happened in this case, individuals must have a way to defend their property rights in a court whenever this does happen. In your constitutional jurisprudence, Joe, how can they do that if the city can always make up a reason to call the use "public", and the Supreme Court defers to whatever the city says?

I wouldn't be so optimistic. As I understand it, Epstein is more concerned with regulatory takings than with the kind of eminent domain takings that are involved in Kelo (I haven't read Epstein's book, so I am going on second-hand information here), and I don't see the court divided 5-4 on governmental compensation for regulatory takings. In Lucas v. South Carolina Coastal Council (in which one of Epstein's articles is cited), the court ruled 6-2 that a governmental regulation that rendered a parcel of land completely valueless was a taking under the fifth amendment. But in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the court's most recent decision on regulatory takings, the court ruled 6-3 against the argument that a temporary regulation that deprived owners of their lands' values constituted a taking (O'Connor voted with the majority in that case).

In short, Epstein's position that government regulations that act to diminish land values constitute takings has never been fully endorsed by a majority of the court, except in rare circumstances where the regulation took away all the value of a piece of land. And if Tahoe-Sierra is any indication, Epstein's position wouldn't even get four votes on the court.

My description of the majority opinion in Kelo was necessarily very brief and incomplete; I included a link so that you can read the entire opinion for yourself if you so choose.

Justice Stevens acknowledged that the court can determine what constitutes a "public use," and he acknowledged that "the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation." Stevens's point was that, in most cases, where there is arguably a public benefit involved, the courts should defer to the legislatures. That's because the supreme court has defined "public purpose" broadly, to encompass any number of projects that have at least some broadly beneficial effect (that's why the state of Texas could use its powers of eminent domain to build a baseball stadium for George W. Bush and his pals). Because the definition of "public use" is broad, it makes sense for the courts to defer to the legislature's view of what constitutes a public benefit -- the legislature, after all, represents the will of the public. To hold otherwise would be to put the court in the position of substituting its judgment for that of the legislature; in effect, the court would be saying that it knows more about the "public good" than do the public's elected representatives. And that's the sort of "judicial activism" that most conservatives deplore.

Judging by a superficial reading of the book (three hours in a bookstore, then discovered I'd left my wallet in the hotel), Epstein's specific claim about regulatory takings is the most controversial part of a general claim. It's that the Supreme Court, as of the mid eighties, had taken most of the substance out of the takings clause, and that it's time to put that substance back in again. It makes sense to me that the most controversial part of the book should be the most hotly debated. But your point is well-taken.


I am beginning to reconsider my opposition to judicial activism already. It just doesn't yield the results I like to see.

Well, this is all a bit to deep for me, I'm afraid.

Thomas, Bob posted this on WA2K radio, and it may have been there that Diane explained about a personal experience.

On ABC news last evening, I saw a man who said that he now had the unpleasant task of explaining to his elderly Italian father that he no longer owned the house that had been in his family for generations.

Joe, thanks for the link you provided. when i first read your post, it didn't occur to me that it included a link--it was just a phrase in blue. i skimmed justice Stevens' lengthy opinion, and read justice O'Connors dissent. she draws a distinction between condemnation to alleviate harm to the public, as in the cases of Berman and Midkiff, which justice Stevens cited, and condemnation to generate benefit to the public, as in Kelo:

After reading Stevens, O'Connor's, and Thomas's opinions, I am still mystified how Stevens distinguishes his guidlene about deferrence from mere "might makes right". By your standard (and apparently Stevens') if I am sufficiently rich, want to live in your house, and you're not selling, the city can broaden its tax base by disowning you and giving your house to me. The city can argue that sure, I gain gain as an individual, but that is merely a side effect of the city's broadening its tax base, and improving the aesthetics of your street because I am so much more handsome than you. So as long as I'm not actually poorer than you, and the city does not actually lower its tax base by disowning you for my benefit, Mr. Stevens will defer to the city's reasoning. Whatever the precedents, this rule just doesn't smell right. As Clarence Thomas notes, it smells like the urban improvement projects in the 50s and 60s, which were often dubbed as "negro removal projects" with good reason.

Thomas, justice Stevens also places great weight on the city's carefully considered, integrated, comprehensive economic development plan. Private citizens typically lack the resources to effectively rebut this type of material that is prepared by a team of consultants.

I'm not sure that there is a standard, apart from a kind of Potter Stewart "I know it when I see it" type of rule-of-thumb. But then the minority does not offer any kind of standard either. The majority and minority simply disagree on whether they "see it" in this case. Only Justice Thomas offers a standard: no takings at all unless everybody gets to use it.


I don't think so. Remember, Stevens cited with approval the rule that the government cannot transfer property from one individual to another solely for the purpose of the transferee's gain. But you're right: Stevens's opinion is close to saying that whatever the government decides is acceptable. But then that is what the court has said in the past regarding other takings cases and it's not much different from what O'Connor said in her dissent.


The fifth amendment clearly allows the government to take private property for public purposes. The supreme court has decided that the legislature is usually in the best position to decide what constitutes a "public purpose," since it is the legislature that acts as the public's representative. If the legislature oversteps its mandate and takes private property for a purpose that is not sufficiently "public" in the eyes of the public, then the solution is to be found not in the courthouse but at the ballotbox.

That's true -- even if the plan, however carefully considered (...), is bogus. Working for a multinational corporation, I see such plans all the time.


I hear you. Like in the medical Marijuana case, Justice Thomas is the only one who's right, while the others are just different shades of wrong. But as I read her, O'Connor does offer a standard. In my own words, a taking is constitutional if there is clear and persuasive evidence that either a) the allocation of property to its previous owners is harmful to society b) the allocation of the property to its prospective new owners is beneficial. She argues that the Hawaii case and the Washington D.C. case were correctly decided because condition a) was satisfied. In the New London case, none of the conditions is satisfied, so she dissents. In practice, as I see it, the difference between O'Connor and Stevens would be bigger than it looks. It isn't so much a difference in their substantive criteria to satisfy, but rather in who bares the burden of proof. O'Connor puts it on the confiscator by requiring that he show clear and persuasive evidence of a benefit. By contrast, Stevens requires that the confiscatee persuade the court to even take a look, which arguably puts a comparable burden of proof on him.

By the way, I am not persuaded by your argument about the Supreme Court becoming an appeals zoning board. If justice Thomas is correct about the original understanding of the takings clause -- no justice argues that it isn't -- the constitution started with a clear and simple rule. Then the Supreme Court, precedent by precedent, century by century, added distinction after distinction to this rule. And after 200 years of this, justice Stevens throws up his hands and says: "Enough with all these complications already! Let's just forget about them and defer to the legislature." I suppose you can interpret Stevens' conclusion as a logical consequence of the precedents, but that would miss the point. The point is that the Supreme Court is slicing off people's property rights piece by piece, salami-tactic-like. It hereby created the very mess that Stevens' deferrence tries to resolve. Taken in isolation, Stevens' individual slice may not be large, but the whole history looks pretty dismal. I think justice Thomas was right to send the precedents to hell and take a stand on constitutional principle.


In my example, the community's tax base gets broadened, so it's not "solely" for the purpose of the transferee's gain anymore. Anyway, I'm comfortable with my argument if we extend the hypothetical scenario from individuals to groups. Say a network of Chicago yuppies decides to gentrify a few blocks on the South Side. They're pretty successful, but a few homes on those blocks -- 10%, say -- are still owned by crack dealers, their prostitutes, and other undesirables. So Richard Daley has an idea: Why not expropriate the undesirables so the yuppies can complete the gentrification? This would move the frontier between Chicago civilization and the barbaric ganglands a few blocks further out, so there's a good chance for a social benefit. The yuppies may even volunteer to renovate some deserted factory into a museum, which is something the public uses. In this scenario, if you were the crack dealers' attorney, how would you argue against your son Mr. Daley after this Supreme Court ruling?


No, it allows it for public use, not just for any old public purpose.


I just hate it when you make my own arguments back to me! I will admit that the states rights issue lurking behind this is one good argument for the ruling. Reasonable people can disagree on how far to take private property rights. So let's have the states experiment with different setups and see what works best. (But this particular case still smells fishy.)

Much as I hate to introduce a long post, I think this may clarify the fears that some of us have about the hazy interpretation of compensation and seizure. The illustration is seizure in cases of drug activity but it gives a view as to how the legislature might choose to interpret.

Seizure Fever:
The War on Property Rights
James Bovard

Mass confiscation has become politically fashionable. Politicians and the courts have created an overwhelming presumption in favor of the government's right to seize control over private land, private homes, boats, and cars, and even the cash in people's wallets. While the dispute over property rights is often portrayed as merely an economic contest, the power of government officials to seize private property directly subjugates citizens to the capricious will of those officials.

Once upon a time, possession was nine-tenths of the law. Nowadays, gossip is sometimes nine-tenths of possession. Thousands of American citizens are being stripped of their property on the basis of rumors and unsubstantiated assertions made by the government's confidential informants.

Beginning in 1970, Congress enacted legislation to permit government to seize property of Mafia organizations and big-time drug smugglers. 1In succeeding decades, other forfeiture laws were enacted, and federal agents can now seize private property under more than 200 different statutes. 2 From 1985 to 1991, the number of federal seizures of property under asset forfeiture laws increased by 1500 percent-reaching a total of $644 million. 3 State and local governments have also seized hundreds of millions of dollars of property in recent years. 4 According to Steven Kessler, a New York lawyer who authored a three-volume 1993 study on federal and state forfeiture, "The use of forfeiture has probably increased a hundred-fold in the last ten years." 5 Thousands of Americans have had their property confiscated thanks to the forfeiture laws.

Unfortunately, the more forfeiture laws legislatures enacted, the less attention police seem to pay to major criminals. Representative Henry Hyde of Illinois noted in June 1993 that 80 percent of the people whose property is seized by the federal government under drug laws are never formally charged with any crime. 6 Representative John Conyers of Michigan declared at a June 1993 congressional hearing: "A law designed to give cops the right to confiscate and keep the luxury possessions of major drug dealers mostly ensnares the modest homes, cars and hard-earned cash of ordinary, law-abiding people." 7
Legalized Theft

Willie Jones of Nashville was flying to Houston on February 27, 199 1, to purchase plants for his landscaping business. Because Jones was black and paid cash for his plane ticket, the ticket clerk reported him to nearby Drug Enforcement Agency officers, who presumed Jones was a drug courier. DEA officers at the Nashville airport approached Jones, checked his identification, and asked permission to search him. Although Jones refused to grant permission, the officers searched him anyway and found $9,000 in cash. The DEA agents then announced that they were "detaining" the money. Jones observed: "They said I was going to buy drugs with it, that their dog sniffed it and said it had drugs on it. " (A 1989 study found that 70 percent of all the currency in the United States had cocaine residue on it.) 8 Jones never saw the dog. The officers didn't arrest Jones, but they kept the money. When Jones asked the officers for a receipt for his money, they handed him a receipt for an "undetermined amount of U.S. currency." Jones objected and asked the officers to count the money out, but the officers refused, claiming that such an action would violate DEA policy.

Federal judge Thomas Wiseman, in an April 1993 decision, concluded that "the officers' behavior at this point was casual and sarcastic ... they believed that the seizure of the currency was all but a fait accompli ... they cared little for Mr. Jones's feelings of insecurity." 9 Judge Wiseman concluded that the DEA officials' testimony on the seizure was "misleading," "unconvincing," and "inconsistent" and ordered the money returned - after a two-year legal battle. Jones observed: "I didn't know it was against the law for a 42-year-old black man to have money in his pocket." 10 A married couple in Ottsville, Pennsylvania, had their $250,000 home confiscated after police found marijuana plants inside the house; the couple and their three children were effectively evicted from their own home. District Attorney Gary Gambardella, who filed the motion to confiscate the home, observed: "People say that selling drugs is a victimless crime, but the children are the real losers here." 11

Asset forfeiture increases the power of local policemen over people they do not like. In Washington, D.C., police routinely stop black citizens and "confiscate small amounts of cash and jewelry on the streets and in parks- even when no drugs are found or charges filed." 12 Ben Davis, a resident of Washington, complained, "I've got money in both pockets, but I don't know how much. The assumption is, if I can't tell you exactly how much I have, it must be from criminal enterprise." 13

Increasingly, the mere suspicion of a government official is sufficient proof to nullify all claims that a citizen legitimately owns his property. The Volusia County, Florida, sheriff's department set up a "forfeiture trap" to stop motorists traveling Interstate 95 and seized an average of over $5,000 a day from motorists between 1989 and 1992-over $8 million dollars total. In three-quarters of the seizures, no criminal charges were filed. An investigation by the Orlando Sentinel revealed 90 percent of those seizure victims were black or Hispanic.14 When confronted with this statistic, Volusia County Sheriff Bob Vogel said, "What this data tells me is that the majority of money being transported for drug activity involves blacks and Hispanics."

People whose cash was seized by the deputies received scant due process of law; as the Sentinel noted, one deputy told two blacks from whom he had just confiscated $19,000: "You have the right to follow us back to the station and get a receipt. " Even citizens who provided proof that their money was honestly acquired (including a lottery winner's proof of his lottery receipts) were treated like drug dealers. Volusia County officials routinely offered "settlements" to drivers whose cash they seized, offering to return a percentage of the seized cash if the drivers would sign a form promising not to sue.

Asset forfeiture laws are turning some federal agents into the modern-day equivalent of horse thieves. Ranchers are being victimized by seizures based on allegations of violations of environmental laws. On March 10, 1992, U.S. Fish and Wildlife Service and state agents trespassed 15 miles onto Richard Smith's Texas ranch, accused him of poisoning eagles, and seized his pickup truck. The agents later tracked down Smith's 75-year-old father, W.B. Smith, and seized his pickup truck - threatening to leave an old man who had had five heart bypass operations ten miles out of town with no transportation. 15 The agents produced no evidence to support their accusation and returned the trucks nine months later without filing charges. 16 W.B. Smith complained: "The Fish and Wildlife Service is out of control, and the Endangered Species Act has given them the tools to destroy the ranching industry. 17

Lawyer Nancy Hollander told the House Government Operations Committee in June 1993: "All too often, in my practice back in Albuquerque, I see cases where someone loses the family pick-up truck at the time of arrest for a non-money related, non-drug federal crime. These persons frequently give up the criminal case, even when the prosecution has little merit, to negotiate the release of a vehicle which provides their livelihood. " 18

Confiscation based on mere suspicion is the essence of contemporary asset forfeiture. In Adair County, Missouri, local police seized Sheri and Matthew Farrell's 60-acre farm based on an unsubstantiated tip from a paid drug informant who claimed that Farrell had a vast field of marijuana and used tractors outfitted with special lights to harvest it at night. Police made no effort to investigate the allegations before seizing Farrell's farm. The case against Farrell and 34 other local defendants collapsed when the informant refused to testify in court - first because he claimed he had laryngitis, and then because he claimed a total loss of memory. 19 Despite the collapse of the prosecution's case, the police refused to return Farrell's farm. They had a change of heart after the Pittsburgh Press exposed the case, although they required that the Farrells sign an agreement promising not to sue before giving back the farm. The case cost the Farrells over $5,600 in legal fees.
Distorted Law Enforcement Priorities

Asset forfeiture distorts law enforcement priorities; instead of chasing violent criminals, some police target wealthy citizens. Early in the morning of October 2, 1992, a small army of 31 people from eight law enforcement agencies smashed their way into 61 -year-old Donald Scott's home on his 200-acre Trail's End Ranch in Malibu, California. The raiders were equipped with automatic weapons, flak jackets, and a battering ram . 20 Scott's wife screamed when she saw the intruders, Scott came out of the bedroom with a pistol in his hands, and police gunned him down. After killing Scott, the agents thoroughly searched his house and ranch but failed to find any illicit drugs.

Ventura County district attorney Michael Bradbury investigated the raid and issued a report in 1993 that concluded that a "primary purpose of the raid was a land grab by the [Los Angeles County] Sheriffs Department." 21 Bradbury revealed that at a briefing before the raid took place, government agents were informed that the ranch had been appraised at $1.1 million and that "80 acres sold for $800,000 in 1991 in the same area." 22 The law officers at the briefing were told that if they discovered as few as " 14 marijuana plants" on the ranch, the entire property could be seized. 23 Bradbury also concluded that a Los Angeles sheriffs deputy had lied to obtain a search warrant and declared: "This search warrant became Donald Scott's death warrant. This guy should not be dead." 24 Los Angeles officials claimed that a confidential informant told them that marijuana was being grown on Scott's ranch, but the informant denied ever making such a statement. 25

In Pittsburgh, federal prosecutors last year devastated Jane Ward after she had fully cooperated with them in testifying to help solve the murder of her husband, John Ward. Prosecutors decided that John Ward had been a drug dealer and that all of his previous income was drug-related. They proceeded to confiscate almost all of the assets of the widow (who had her own legitimate business); federal officials arrived with a truck at the Ward's home and carted off all the family's furniture. Prosecutors even sought to confiscate all the proceeds from Ward's life insurance; Jane Ward and her three children were forced to go on welfare, according to Terrance Reed, Ms. Ward's lawyer and one of the nation's leading authorities on forfeiture law.

Asset forfeiture property grabs are sparking fights across the nation-even in states known for giving government a long leash, such as Maryland. In Frederick, Maryland, police seized a 1988 Toyota pickup truck from a local resident after he bought $40 worth of a drug placebo from an undercover cop at an open-air drug market. Under Maryland law, local police and prosecutors have effectively unlimited power to confiscate any vehicle they suspect was involved, or that the owner intended to be involved, in transporting drugs. Maryland police have confiscated thousands of autos and trucks in recent years, often based on mere accusations.

After Maryland Delegate John Amick proposed a law to reform the forfeiture procedure to shore up defendants' rights, state officials went berserk. Harford County State's attorney Joseph Cassilly denounced Amick's proposal: "It's a crazy law. Absolutely crazy.... It's just going to inconvenience the hell out of everybody" by requiring police officials to testify in court to explain why cars were confiscated. 26 Frank Charles Meyer, an assistant state's attorney in Baltimore County, justified the existing law: "It hurts the bad guy, it benefits the good guy and it doesn't really Cost." 27 Police sometimes "settle" the forfeiture cases by allowing the auto owners to buy back their car for half the car's value.
Government by Gossip

The Justice Department's 1992 annual report on asset seizures declared, "No property may be seized unless the government has probable cause to believe that it is subject to forfeiture." 28 In reality, government officials are seizing people's property based solely on "hearsay" - rumor and gossip - from anonymous informants. 29 (Hearsay evidence is held in such low esteem in the American judicial system that it cannot be introduced into court in criminal proceedings.) Police routinely refuse to reveal their source of a rumor abut the forfeiture target; some policemen have likely invented anonymous informants to give them a pretext to take private property they covet. In Fort Lauderdale, Florida, police seized the $250,000 home of a dead man from his heirs who had cared for him while he was dying of cancer. The justification for the seizure? A "confidential informant told police that [two years earlier] the owner ... took a $10,000 payment from drug dealers who used a dock at the house along a canal to unload cocaine. The informant can't recall the exact date, the boat's name or the dealers' names, and the government candidly says in its court brief it 'does not possess the facts necessary to be any more specific,' " as the Pittsburgh Press reported . 30 Although the police had no evidence that the deceased homeowner was involved in drug dealing, an informant's vague, uncorroborated assertion was sufficient to evict the owners and seize the property. While government agents can use hearsay evidence to justify a seizure, property owners are usually prohibited from offering hearsay evidence to support their claims.

Law enforcement officials are also seizing apartment buildings to punish the landlords for not eradicating drug dealing in the apartments. (If the same standard were applied to inner-city public housing projects, almost every public housing project in the country could be seized from the government; in 1993 Baltimore Mayor Kurt Schmoke blamed maintenance problems at one public housing project on drug dealers who refused to let city workers enter the buildings.) 31

In Florida, the Dade County Commission revised county laws in 1989 to allow county officials "to demolish a nuisance building within 30 days after the police report drug activity at the property. Proof of drug activity is defined in the ordinance as one arrest." 32 The owner of a 36-unit apartment building in Milwaukee sought to placate the police by evicting ten tenants suspected of drug use, giving a master key to local beat cops, forwarding tips to the police, and hiring two security firms to patrol the building. The city still seized the building because, as Milwaukee city attorney David Stanosz declared, "Once a property develops a reputation as a place to buy drugs, the only way to fix that is to leave it totally vacant for a number of months. This landlord doesn't want to do that."

The owner had encouraged the police to send undercover agents into the building - but the police claimed they were too short of officers. 33 In July 1992, several Cleveland landlords informed the police of drug dealing in their buildings; the city responded by quickly seizing the buildings and evicting all tenants, even in a building where drug-dealing occurred in a single apartment. 34 Apparently, the worse the police fail to control crime, the more power police acquire to seize law-biding citizens' property.
The Long Arm of Legal Plunder

Asset forfeiture is spreading like wildfire through the statute books. Some Islamic countries impose draconian penalties on men who approach and talk to women in public. In Washington, D.C., Portland, Oregon, and Hartford, Connecticut, police confiscate the cars of men who drive up and suggest a "capitalist act between consenting adults" to streetwalkers. Customs Service officials in Texas seized a $138,000 Learjet after discovering that the owner had made a typographical error on paperwork he submitted to the Federal Aviation Administration. 35 (The FAA's usual response to such a mistake is to require the owner to correct the form.) The Immigration and Naturalization Service has seized over 30,000 cars and trucks since 1990 from either people helping illegal immigrants enter the United States or construction companies transporting illegal immigrants to job sites. 36 Customs agents confiscated the $113,000 that a Vietnamese mother had collected from 20 families in the Seattle area to take back to Vietnam for humanitarian relief for their relatives. 37 (Customs officials pronounced the woman guilty of violating the Trading with the Enemy Act.)

A New Jersey mother's Oldsmobile was confiscated by police after they alleged that her son had used it to drive to a store where he shoplifted a pair of pants.38 One New York businessman was forced to forfeit all of his gas stations because of a failure to pay New York sales tax . 39 A New Jersey construction company had all its equipment seized after state officials decided that the company was technically ineligible to bid on three municipal projects that it had already completed. 40Suffolk County, New York, legislators considered a law in 1993 to allow local officials to confiscate the "cars, boats and planes used in connection with any misdemeanor. 41

Asset confiscation programs are creating thousands of new police informants. The Justice Department routinely gives monetary rewards to individuals who report information or make accusations that lead to a seizure. The forfeiture program thus turns many airline ticket agents into conspirators with the government, since anyone who pays cash for an airline ticket stands a chance of being reported as a suspected drug dealer or an accomplice to drug dealing.
Perverse Incentives

Forfeiture is the biggest growth area in law enforcement partly because federal and local police agencies usually keep a large amount of the booty they seize. Federal Judge Richard Arnold noted in 1992 that some observers were questioning "whether we are seeing fair and effective law enforcement or an insatiable appetite for a source for increased agency revenue." 42 In Nueces County, Texas, Sheriff James Hickey used assets from a federal drug forfeiture fund to grant himself a retroactive $48,000 salary increase just before retirement ($400 a month for the previous ten years). The sheriff was indicted for embezzlement by a federal grand jury in August 1993. 43 Even internal government documents concede that federal agents have gone overboard: a September 1992 Justice Department news letter noted, "Like children in a candy shop, the law enforcement community chose all manner and method of seizing and forfeiting property, gorging ourselves in an effort which soon came to resemble one designed to raise revenues." 44

Prosecutors and legislators stack the deck against property rights. A 1990 Justice Department directive declared, "It is the Department's position that no advance notice or opportunity for an adversary hearing is statutorily or constitutionally required prior to the seizure of property, including real property." 45

Professor Claudio Riedi noted in 1992 in the University of Miami Law Review, "Frequently, the government can meet its burden of proof by simply qualifying one of its detectives as an expert, who then testifies that a particular way of bundling money is typical for drug dealers. Standing alone, such testimony may be enough for a showing of probable cause, and may therefore entitle the government to forfeiture. In contrast, an innocent owner must adduce massive evidence to prove her case." 46

The Orlando Sentinel noted, "Deputies routinely said bills in denominations of $1, $5, $10, $20, $50, and $100 were suspicious because they are typical of what dealers carry. But that leaves few alternatives for others." 47

In most forfeiture court proceedings, it is up to the owner to prove that his house, his car, or the cash in his wallet was legally obtained-the government has no obligation to prove that the property is guilty. The fact that a government official makes an unsubstantiated assertion that a piece of property was somehow involved in illicit activity effectively transfers the ownership of that property to the government.

Asset forfeiture is proliferating in part because of a technicality in the law that allows the government to claim that it is suing only the item of property, not the property's owner. This is why forfeiture cases often have peculiar titles such as " U.S. v. 1960 bags of coffee, " " U.S. vs. 9.6 acres of land and lake," or "U.S. vs. 667 bottles of wine. " And since the Bill of Rights recognizes the rights only of citizens and state governments, not the rights of chunks of land or bottles of wine, there are almost no due process restrictions on government's attacks on property. A federal appeals court recognized this when it announced in August 1992: "We continue to be enormously troubled by the government's increasing and virtually unchecked use of the civil forfeiture statutes and the disregard for due process that is buried in those statutes." 48 The citizen must show vastly more evidence to reclaim his property than the government did to seize it in the first place.

Government officials routinely refuse to return seized property even after an accused person has been tried and found innocent. The costs of suing the government to recover property are extremely high, routinely exceeding $10,000, and citizens must post a bond of up to $5,000 before filing suit. (The bond is required to cover the government's legal costs in having to defend against a property owner's efforts to reclaim his property.) The legal battles required to recover wrongfully seized property often take two, three, or more years. If the property seized is only worth a few hundred dollars, the person cannot possibly break even by suing the government. Most forfeiture statutes deny a private citizen any compensation for his attorney's fees when he successfully reclaims forfeited property.
No End in Sight

Although the number of asset forfeiture actions has skyrocketed in recent years, Justice Department officials apparently believe that the seizure bull market has only just begun. Cary H. Copeland, director of the Department of Justice's Executive Office for Asset Forfeiture, declared at a June 1993 congressional hearing: "Asset forfeiture is still in its relative infancy as a law enforcement program." 49 The Federal Bureau of Investigation announced in 1992 that it anticipated that its total seizures of private property would increase 25 percent each year for the following three years. 50 The Supreme Court marginally limited government forfeiture powers in several 1993 decisions, but Justice Department spokesman Mark Sakaley indicated that the decisions were not expected to have a major impact on forfeiture programs.

Mr. Copeland declared that asset forfeiture "is to the drug war what smart bombs and air power are to modem warfare." 51 Asset forfeiture basically allows government agencies to carpet bomb the rights of the American people. The Federal Eighth Circuit Court of Appeals complained in 1992 that it was "troubled by the government's view that any property, whether it be a hobo's hovel or the Empire State Building, can be seized by the government because the owner, regardless of his or her past criminal record, engages in a single drug transaction." 52
Conclusions and Implications

Law enforcement in the United States is reverting back toward conditions existing in England before the Magna Carta, when rulers almost automatically seized all the property of any person convicted of a felony. Such seizures spurred English barons to force King John to limit his powers in 1215. 53 Unfortunately, some federal officials appear to cherish a pre-thirteenth century philosophy of government power. (A 1992 U.S. Solicitor General's brief quoted the Old Testament and praised forfeiture as an "ancient punishment") 54 Asset forfeiture provisions presume that government officials should have the power to inflict economic capital punishment on private citizens for the breaking of scores of laws.

Many civil libertarians believed that the liberal Clinton administration and Attorney General Janet Reno would correct some of the most overt abuses in the forfeiture program. However, Reno has continually postponed substantive reform and even derailed a bipartisan liberal-conservative congressional effort to reform the forfeiture law. Instead, Reno's Justice Department has put forward its own "reform" proposal that has been derided as a "prosecutor's wish list" by forfeiture expert David Smith.

The asset seizure controversy redefines the relation between the State and the citizen: what pretext does the State need to claim that a citizen's property actually belongs to the State? Do people have a right to their property only until some "secret informant" tells police something bad about the citizen's use of his property? If Congress proposed to forcibly alter all private deeds and titles in the United States by adding a clause stating that the government acquires automatic ownership rights if any law enforcement official hears a rumor about a property's possible illicit use, the public backlash would raze Capitol Hill. But, increasingly, that is the law of the land.

http://www.libertyhaven.com/personalfreedomissues/freespeechorcivilliberties/seizurefever.html

Just curious: is Thomas your first name or your last name? :wink:


I agree. But then that means that the majority applied the same standard: it just viewed the facts differently.


Actually, for both the majority and the minority the initial burden is on the legislature to demonstrate that the taking is for a public use. The dissenters in the Supreme Court of Connecticut wanted to impose a "heightened standard" of review for "takings justified by economic development," but both Stevens and O'Connor rejected such a heightened standard. I don't see anything in either opinion to suggest that Stevens placed the burden on the landowners to convince the court that the takings were unjustified.


The history of the takings clause is a long one, and I don't have the time to go over it in detail. It is sufficient, for the moment, to state that Thomas's "originalist" version of the takings clause is unworkable: the supreme court recognized that and rejected that kind of interpretation over one hundred years ago.


I wouldn't, because I'd be certain to lose.

Clearly, there are very few practical limits on the legislature's power to take private property for public uses, just as there are very few practical limits on congress's power to regulate under the commerce clause. But, as I have explained elsewhere, that's not a problem with the supreme court's precedents, that's a problem with the constitution. Justice Thomas wants the fifth amendment to state: "[N]or shall private property be taken for public use, without just compensation and without the public actually being able to use it." Unfortunately, the takings clause doesn't include that italicized phrase.


Quite right, although, in practice, the difference is minimal.


And Stevens agrees:

We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate.

The complete text of the Supreme Court's decision
The complete text of the Supreme Court's decision:

http://a257.g.akamaitech.net/7/257/2422/23jun20051201/www.supremecourtus.gov/opinions/04pdf/04-108.pdf

Your query has made me check if Clarence Thomas should be my next avatar. But the position he took in the Guantanamo cases disqualified him.

On reflection, it just occurred to me that I don't understand something. If I am correctly informed -- and quite possibly I'm not -- both Scalia and Thomas are skeptical about the doctrine of substantive due process, and its idea that it empowers the federal government to enforce the natural rights of individuals against the states. Given that the fifth amendment only binds the federal government, nothing else entitles justice Thomas to apply his reading of the takings clause to the city of New London. Therefore, if Clarence Thomas does not believe in substantive due process, shouldn't his own standards should compel him to join the majority, and have the states sort out this takings thing by themselves? Or is this a stupid question?