Category Archives: Property Rights

Freedom Dies In My Hometown

I grew up in New Jersey in a bedroom community called Piscataway. It wasn’t (and isn’t) all that much different from any other Central New Jersey town, except, perhaps, for the fact, that it was one of the only towns north of Princeton that had an actual working farm. Cornell Farms was a little dairy farm that operated on one of the few undeveloped areas of the part of town where my family lived. I still remember passing by it every day on the school bus that I had to take when I started high school. Little did I know at the time that the powers-that-be were doing whatever they could to take Cornell Farms away from the family that owned it.

Matt Labash puts it this way in The Weekly Standard:

Piscataway (an Indian term meaning “it is getting dark”) was once a charming farm community. But like so much of America, it is now a charmless depot off the Turnpike, a 19-square-mile blur of box stores, strip malls, and high-density housing. In the middle of this, sprawled over 75 acres, sits the Halper farm, one of the last agricultural tracts in Piscataway.

The farm has been in the family since 1922 and until the city officially took ownership, in 2004, was co-owned by numerous Halper aunts and cousins, most of whom live elsewhere. Mark Halper still ran a mulch business on the land, and his cousin Gary oversaw a horse farm on another corner, making ends meet by giving pony rides to children. But Larry Halper (Mark’s twin brother) and his wife Clara still worked and lived on the land, though they owned only a one-twelfth interest in the total family acreage. Even though everyone was getting bounced, it was their plight and property that attracted Clements.

The township has made feints at taking the Halper property for decades. In 1975, it actually did force the Halpers to sell 25 acres, which Piscataway added to an adjoining park. But the current festivities got underway in earnest in 1998. Around that time, the city purportedly grew nervous that some of its last privately owned green space might fall into the hands of ghastly developers, the kind that are regularly found in bed with the local politicians, making New Jersey a notorious “pay to play” state. Take a ride around the perimeter of the Halper farm, and such concerns don’t seem to have plagued city planner consciences in the past, what with all the quaint mom ‘n’ pop operations like Wal-Mart, Starbucks, and Hollywood Tans that blanket the town like bad wall-to-wall carpeting.

From the look of things, plenty of people are making hefty profits selling Piscataway real estate off to the highest bidder. But to the city’s thinking, the Halpers shouldn’t be among them. They only worked the farm for nearly a century, why should they make money off it? Never mind that they’d received unsolicited offers for their land for decades and managed not to sell. Piscataway officials were coming after their property anyway, vowing to maintain it as “open space.” An incredulous Clements sks what could be “more ‘open space’ than a farm?”

I’m not sure whether it’s because this is my hometown we’re talking about here, but this latest example of Kelo inspired insanity gone wild has me particularly enraged. It was an open secret in town that the Halper farm was a target of the powers-that-be for some time.

How dare they operate a farm and offer horse riding lessons in the middile of our nice, peaceful NIMBY/preppie/DINK community !

How dare they provide some fun for kids !

I’ve seen alot of changes to my hometown since I moved to Virginia sixteen years ago. Many (most) of them have been improvements. But when I drive past what used to be Cornell Dairy Farm in the future, and see a Super Target (or whatever it might be) that ended up there only because the City Council decided to steal land from the Halper family, I can only mourn the fact that liberty means nothing in one town in Central New Jersey.

Lives Destroyed

aka: Just Another Day in the War On Drugs

Federal Appeals Court: Driving With Money is a Crime

A federal appeals court ruled yesterday that if a motorist is carrying large sums of money, it is automatically subject to confiscation. In the case entitled, “United States of America v. $124,700 in U.S. Currency,” the U.S. Court of Appeals for the Eighth Circuit took that amount of cash away from Emiliano Gomez Gonzolez, a man with a “lack of significant criminal history” neither accused nor convicted of any crime.

On May 28, 2003, a Nebraska state trooper signaled Gonzolez to pull over his rented Ford Taurus on Interstate 80. The trooper intended to issue a speeding ticket, but noticed the Gonzolez’s name was not on the rental contract. The trooper then proceeded to question Gonzolez — who did not speak English well — and search the car. The trooper found a cooler containing $124,700 in cash, which he confiscated. A trained drug sniffing dog barked at the rental car and the cash. For the police, this was all the evidence needed to establish a drug crime that allows the force to keep the seized money.

Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business. Gonzolez flew on a one-way ticket to Chicago to buy a truck, but it had sold by the time he had arrived. Without a credit card of his own, he had a third-party rent one for him. Gonzolez hid the money in a cooler to keep it from being noticed and stolen. He was scared when the troopers began questioning him about it. There was no evidence disputing Gonzolez’s story.

Yesterday the Eighth Circuit summarily dismissed Gonzolez’s story. It overturned a lower court ruling that had found no evidence of drug activity, stating, “We respectfully disagree and reach a different conclusion… Possession of a large sum of cash is ‘strong evidence’ of a connection to drug activity.”

The man was never charged with a crime. There was no proof offered or required that he was in any way connected to the drug trade. But in our war on drugs, that doesn’t matter. And he and his business associates are out their entire life savings.

Now, I don’t know whether his story is on the level. I’ll freely admit that someone driving a rented car not in his name, carrying $124,700 in cash, is a little suspicious. But who holds the burden of proof? If the government is going to confiscate $124,700, I’d say the onus is on them. But in the war on drugs, you have to prove your innocence. The government can come in, destroy your life, confiscate your property, and unless you prove a negative, the best you can do is ask nicely for them to make it right.

I wish I could say that any of this surprised me. But in the war on drugs, not much surprises me any more. I’ve stopped expecting anything approaching justice or common sense. It’s but one more example of our government disregarding the Constitution, disregarding individual rights, and disregarding sanity, in the quest for ever-greater power. I fear that it will get worse before it gets better, and in the meantime, I can only hope that nobody I know or care about gets hoisted on the pike as the next “victory” in the war on drugs.

But don’t just take my word for it. Below is a video from LEAP (Law Enforcement Against Prohibition), a group of current and former law enforcement personnel. As the people who have spent years as the front-line force in the war on drugs, they’ve seen firsthand exactly what has been accomplished. A string of destroyed lives, non-violent people in jail, violent people enriched by the illicit drug trade, and at the end of the day, not a whit of improvement in the proportion of our population who are addicted to drugs.

How long do we have to continue this before we can finally admit it’s not working?

Hat Tip to Radley Balko on the video. If you’re also fed up with the damage to our society, our Constitution, and our civil liberties caused by this useless “war”, please pass this video along.

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Stadium Searches

If I wish to pat you down before entering my home, to ensure you’re not carrying a weapon, it’s my property, and I have a right to do so (and you have a choice to consent to a search, or leave). If I own a store, and you have a backpack with you, I have a right to know what’s in that backpack before you enter, or you can refuse to consent to a search (and thus I turn you away).

But at some point, a judge has decided that the NFL, as the governing body of professional football, doesn’t have the same property rights with the stadiums its games are played in:

A federal judge has upheld a ban on security pat-downs outside Raymond James Stadium before Tampa Bay Buccaneers games, ruling Friday the practice violates the constitutional rights of fans.

“A generalized fear of terrorism should not diminish the fundamental Fourth Amendment protection envisioned by our Founding Fathers,” U.S. District Judge James Whittemore wrote in his 26-page order. “Our Constitution requires more.”

The ruling is a victory for Valrico civics teacher Gordon Johnston, 60, a Bucs season ticket-holder who filed suit against the Tampa Sports Authority in October 2005.

I can see some potential reasons why the judge would find this way. First, Raymond James stadium was partially taxpayer-funded, so under one reading, the government has a role in its policies and thus this is a government infringement on the Fourth Amendment. Another potential reason is that the Tampa Sports Authority, which administers the stadium’s operations, is a government agency, and thus this is government infringement on the Fourth Amendment. Since the suit was brought directly against the Tampa Sports Authority, this is where I think the reasoning must have come (having not read the ruling myself).

But I think both arguments fail due to one crucial fact. It is not the government who is setting these policies or ensuring their compliance. It is the NFL. The NFL, as the governing body of a VOLUNTARY league, have decided that their fans might feel more secure in a stadium if fellow fans are searched before they are allowed to enter the stadium. This is the NFL’s decision, not the government’s.

That being said, I think it’s a stupid decision. Given the ineffectiveness of the “search” they perform, it’s nothing more than an annoyance. It will take very little ingenuity to smuggle something past this “search”. In fact, I think it’s much more likely that the real result of this policy will be to find contraband (such as outside food and drinks), not to actually improve the safety of fans.

But I realize that it’s my choice to attend an NFL football game, and that should I determine that I want to enter the NFL’s stadium and view the game, I might have to submit to the policies that they have set. Anything else is a violation of the NFL’s right to set the conditions under which their games are played.

Norwood v. Horney: A Crushing Blow To Kelo

Duncan Currie writes in The Weekly Standard about Wednesday’s decision by the Ohio Supreme Court in Norwood v. Horney, which he calls a crushing blow to the rationale behind the infamous Kelo decision. Currie identifies three areas in which the Norwood decision undermines the rationale behind the U.S. Supreme Court’s decision in Kelo v. City of New London:

First: The Ohio High Court implicitly rejected the rationale behind Kelo. “Although economic factors may be considered in determining whether private property may be appropriated,” wrote Justice Maureen O’Connor, “the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.”

The Ohio Constitution’s public-use clause is essentially the same as the one in the Fifth Amendment to the U.S. Constitution, so the logic that the Ohio Supreme Court used in this regard applies equally to an analysis under the Federal Constitution.

Second: The court called for “heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers.”

Specifically, the Court rejected the city’s rationale, accepted by the trial court, that the use of eminent domain powers in this case was justified because the property in question was in danger of becoming “blighted.”

“We find that Norwood’s use of ‘deteriorating area’ as a standard for appropriation is void for vagueness,” wrote Justice O’Connor. “We further hold that the use of the term ‘deteriorating area’ as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.” In plain English, that means Norwood grossly abused its authority. The mere possibility–or even probability–that an area may one day be blighted can hardly pass muster as legitimate grounds for property seizures. Indeed, by the yardsticks employed in Norwood–cracked sidewalks, light pollution, proximity to the highway, weeds, dead-end streets, and “diversity of ownership”–large bits of middle-class, suburban America are “deteriorating.”

The Court also struck down a portion of Ohio’s eminent doman law that made any appeal to the Courts pointless:

Third: The court rejected as unconstitutional the portion of Ohio’s eminent-domain statute that–get this–barred judges from enjoining the seizure and redevelopment of property prior to appellant review. The law had essentially allowed developers to tear down homes after they provided just compensation but before the completion of the appeals process. According to the Ohio Supremes, this “violates the separation-of-powers doctrine.”

In other words, Norwood v. Horney is, in some sense at least, the anti-Kelo. Obviously, the Ohio Supreme Court cannot overrule a decision of the United States Supreme Court. However, the ruling that the Justices from the Buckeye State have made will, hopefully, serve as the beginning of an argument that will see sanity returned to eminent domain law at the Federal level.

H/T: Wizbang

Previous Posts:

A Post-Kelo Test In Ohio
A Victory For Property Rights In Ohio

A Victory For Property Rights In Ohio

In January, I wrote about a case being argued before the Ohio Supreme Court that was, without question the first major test of local government eminent doman powers since the Supreme Court’s Kelo decision. The case involved the city of Norwood, near Cincinnati, and its attempt to use eminent domain to take the propety of homeowners who were holding out on accepting buyouts from a private developer. Today, the Ohio Supreme Court issued a unanimous ruling that Norwood’s attempted exercise of eminent domain was improper.

COLUMBUS, Ohio — The Ohio Supreme Court ruled unanimously on Wednesday that a Cincinnati suburb cannot take private property by eminent domain for a $125 million project of offices, shops and restaurants.


The court found that economic development isn’t a sufficient reason under the state constitution to justify taking homes.

In the ruling, Justice Maureen O’Connor said cities may consider economic benefits but that courts deciding such cases in the future must “apply heightened scrutiny” to assure private citizens’ property rights.

“For the individual property owner, the appropriation is not simply the seizure of a house,” she wrote. “It is the taking of a home _ the place where ancestors toiled, where families were raised, where memories were made,”

Targeting property because it is in a deteriorating area also is unconstitutional because the term is too vague and requires speculation, the court found.

O’Connor wrote that the court attempted in its decision to balance “two competing interests of great import in American democracy: the individual’s rights in the possession and security of property, and the sovereign’s power to take private property for the benefit of the community.”

Kudos to the Ohio Supreme Court for doing what the U.S. Supreme Court was apparently incapable of, standing up for property rights. And doing it unanimously no less.

And there’s a detailed analysis of the Supreme Court’s decision by Ilya Somin at The Volokh Conspiracy, who calls the decision “A Major Victory For Property Rights”

Further information can be found at the Ohio Supreme Court’s website. And a the full text of the opinion (in PDF format) can be found here.

More at Wizbang, The Volokh Conspiracy, and How Appealing

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