Month: September 2023

From yesterday’s decision by Judge John T. Copenhaver, Jr. (S.D. W. Va.) in W. Va. Coalition Against Domestic Violence, Inc. v. Morrisey (some formatting changed); note that the court upheld some other provisions of the law, which I discuss in a separate post:

In March 2018, the West Virginia Legislature enacted House Bill 4817 [the Parking Lot Amendments], which amended the BLPA to prohibit property owners from banning firearms in the parking lot areas of their properties ….

The Parking Lot Amendments also prohibit owners, lessees, or persons “charged with the care, custody, and control” over parking lots from “violat[ing] the privacy rights of a customer, employee, or invitee … [b]y verbal or written inquiry, regarding the presence or absence of a firearm locked inside or locked to a motor vehicle in a parking lot[.]” The court will refer to this section as the “Inquiry Provision.” …

Subsection 61-7-14(d)(2)(C) prohibits the same individuals from taking “any action against a customer, employee, or invitee based upon verbal or written statements of any party concerning possession of a firearm stored inside a motor vehicle in a parking lot for lawful purposes, except upon statements made pertaining to unlawful purposes or threats of unlawful actions involving a firearm made in violation of § 61-6-24 [pertaining to threats of terrorist acts] of this code.” The court will refer to this subsection as the “Take-No-Action Provision.”

The court held that the Inquiry Provision violated the First Amendment, and that the Take-No-Action provision was unconstitutionally vague in part because of the possibility that it would be read as restricting speech as a form of action. The opinion is very long, so I thought I’d excerpt just portions of the free speech discussion (which I think is generally correct):

A content-based speech regulation is one that “singles out one particular topic of speech … for regulatory attention.” The Inquiry Provision at issue in this case does exactly that; it prohibits specific persons, those “charged with the care, custody, and control” of parking lots, from making “verbal or written inquir[ies]” on a particular topic of speech, namely, the “presence or absence of a firearm locked inside or locked to a motor vehicle in a parking lot.”

Content-based speech regulations are generally subject to strict scrutiny, “which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Thus, under strict scrutiny analysis, it would be the Attorney General’s burden to show that the Inquiry Provision furthers a compelling interest of the state and is narrowly tailored to meet that end.

The Attorney General argues that … the speech regulated by the Inquiry Provision is commercial in nature …. Commercial speech, while protected by the First Amendment, has historically been “afforded less constitutional protection than other forms of speech;” accordingly, “it is important that the commercial speech concept not be defined too broadly lest speech deserving of greater constitutional protection be inadvertently suppressed.” The Fourth Circuit has generally defined commercial speech “as speech that does no more than propose a commercial transaction.”

Nevertheless, “some speech outside this ‘core notion’ may also be deemed commercial.” To determine whether speech is commercial, courts are to analyze three factors: “(1) is the speech an advertisement; (2) does the speech refer to a specific product or service; and (3) does the speaker have an economic motivation for the speech.” …

The court finds that the Inquiry Provision targets neither “advertisements” nor “specific products or services.” Similarly, the court is unable to generally conclude that business owners, employers, or owner/operators of parking lots have an economic motivation rather than a safety concern for asking patrons, employees, customers, or invitees about the presence of firearms in their vehicles. The Attorney General’s supposition that some businesses may have a commercial interest in inquiring about firearms is speculative and fails to persuade the court that the factors described by the Fourth Circuit tilt in favor of deeming the restricted speech “commercial.” Accordingly, the court is of the notion that the speech is not commercial and therefore strict scrutiny should apply.

Notwithstanding that conclusion, “the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied.” The Parking Lot Amendments’ Inquiry Provision fails even under the less burdensome intermediate scrutiny analysis [applicable to commercial speech]. Under intermediate scrutiny, the Attorney General has the burden of proving that the provision is supported by a substantial governmental interest. Moreover, “[t]he limitation on expression must be designed carefully to achieve the State’s goal.”

The Attorney General has submitted two governmental interests for the Inquiry Provision. First, the Attorney General avers that the “Inquiry Provision protects Second Amendment rights against private encumbrances including discrimination on the basis of the exercise of the right to bear arms.” While “the protection of Second Amendment rights is a substantial government interest,” the Attorney General has failed to show both that the Inquiry Provision directly advances that interest and that the interest could not be served by less restrictive means.

The Attorney General argues that the provision “advances this interest because it prohibits businesses knowing and thus gaining the ability to discriminate against covered persons with guns.” Essentially, the Attorney General argues that by prohibiting the initial inquiry into the presence of a firearm, the state partially eliminates the ability of property owners to discriminate against gun holders.

Although the Second Amendment protects an individual’s right to bear arms from government encumbrances, no court has recognized a right against private encumbrances. Additionally, inquiry into the presence of a firearm in a vehicle does not necessarily amount to an encumbrance or attempted encumbrance. Such inquiries may very well be a welcome subject from firearm possessors.

Similarly, property owners may certainly inquire into the presence of a firearm in order to prepare for and provide for the safety of their customers, employees and invitees and do so without intending to banish or discriminate against the possessor. Accordingly, the court is unable to conclude that the Inquiry Provision advances the Attorney General’s first stated government interest.

The Attorney General has also failed to establish that there is no less restrictive means that would serve the purported goal. Other provisions of the Parking Lot Amendments already prohibit businesses and parking lot owners and operators from (1) excluding a lawfully possessed firearm from their parking lot areas when it is locked in a motor vehicle and out of view; (2) prohibiting customers, employees, or invitees’ vehicles from entering their parking lots because there is a lawfully-possessed firearm contained therein; and (3) from conditioning employment on an employee’s agreement not to keep a firearm in his or her vehicle.

It is unclear why an extra provision prohibiting inquiry into, or discussion of such weapons would be necessary to protect an employee or invitee’s Second Amendment rights.

The second governmental interest the Attorney General submits to support the Inquiry Provision is to protect the privacy of individuals exercising their Second Amendment rights. The protection of individual privacy has been recognized by courts as a substantial government interest.

Nevertheless, the Inquiry Provision is not sufficiently tailored to advance that interest. Individual employees, invitees, and customers “who have privacy concerns about information concerning their firearm ownership [and possession] can simply refuse to answer questions on the topic.” …

The court also held that the Take-No-Action Provision was ambiguous:

The Attorney General submits that the Take-No-Action Provision regulates conduct, not speech. The Coalition argues in rebuttal that the provision “squarely prohibits Coalition Members from engaging in a wide range of speech concerning gun possession in their parking lots.” The Coalition lists examples of that which it labels as “pure speech” that are prohibited by the provision:

Because the law bars them from taking ‘any’ action, it presumably prohibits shelter staff from: (1) asking people to leave the shelter property; (2) calling the police to tell them about a gun in someone’s vehicle; (3) posting signs describing the shelter’s opposition to having guns in vehicles; or even (4) telling other staff members about the risk of a gun in someone’s car. All of these ‘actions’ involve pure speech.

The foregoing examples, though referencing shelter staff and shelter property, apply equally to all businesses. Additionally, the Coalition contends that the Take-No-Action Provision regulates speech because it prohibits businesses and individuals from taking actions based upon speech. While the Coalition correctly points out examples of the Take-No-Action Provision’s inhibition of speech, it has elected to challenge this provision only facially, and not as-applied. It has, then, the burden of showing that all or most applications are unconstitutional. …

In the context of the Parking Lot Amendments of which it is a part, the ban of “any action against a customer, employee, or invitee” would, if otherwise valid, aptly include the banning of discriminatory conduct, against the possessor of the stored firearm who is in compliance with § 61-7-14(d)(1), consisting of barring entry to the store, business or facility served by its parking lot or a denial of service. “Any action against” may—or may not—also include an abundance of speech rendered in the interest of furthering the safety of all one’s customers, employees, invitees and others that simply asks the possessor of the firearm in the motor vehicle

• to remove the firearm
• to leave the premises or
• to never again bring a firearm

 

• or that which involves calling the police to ascertain whether the possessor is a convicted felon whose civil right to possess a firearm has not been restored or is a domestic violence misdemeanant similarly disqualified, or that which involves an endless variety of steps one may wish to take or request or warnings one may wish to sound that could be construed as an action against the possessor.

Because the term “any action against” is not defined, its scope is unknown and serves to chill any comment or conduct that one who is the “owner, lessor or other person charged with the care, custody and control of real property” may take or make, pursuant to § 61-7-14(d)(2)(C), based on verbal or written statements of any party concerning possession of a firearm stored inside a motor vehicle in a parking lot. The term “any action against” fails to provide a person of ordinary intelligence a reasonable opportunity to know and understand what is prohibited, so that he or she may act accordingly. “Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ than if the boundaries of the forbidden areas were clearly marked.”

It is reasonable to expect that one who is charged with the care, custody and control of the real property will ordinarily learn of the stored firearm by the statement of another “party” and, under (d)(2)(C), be frozen into inaction, whether by way of comment or conduct, against the possessor who is a customer, employee or invitee. The exercise of one’s Second Amendment right, as permitted by the Parking Lot Amendments, does not insulate one from criticism or entreaty. Yet, the ambiguity of the Take-No-Action Provision serves to silence the speaker who risks the civil penalties of the Act by speaking out and thereby taking “any action against” the possessor….

[T]he Take-No-Action Provision is [thus] facially void for vagueness for lack of notice of that which is prohibited, in violation of Fourteenth Amendment procedural due process and in violation of First Amendment free speech….

[Moreover, t]he Parking Lot Amendment is tightly drawn … whereunder a customer, employee or invitee who is in possession of a legally owned firearm may store or maintain it on a business’ parking lot when the firearm is

• Lawfully possessed
• Out of view
• Locked inside or locked to a motor vehicle in a parking lot, and
• When the possessor is lawfully allowed to be present in that area.

The Take-No-Action Provision … is not narrowly drawn to effectuate [this provision]. Rather, the owner, lessee or, more likely, the “person charged with the care, custody and control of real property” may not “take any action against a customer, employee or invitee based upon verbal or written statements of any party concerning possession of a firearm stored inside a motor vehicle in a parking lot for lawful purposes except upon statements made pertaining to unlawful purposes or [terrorist] threats.” Consequently, the Take-No-Action Provision applies even when the motor vehicle is not locked and the firearm is in view. That is, the provision applies where the firearm, possessed and stored for lawful purposes, is carelessly left in plain view in an unattended motor vehicle that is unlocked. That provision needlessly puts at risk the well-being of customers, employees, invitees and others who are present on otherwise private property should the unsecured firearm fall, opportunistically, into the hands of one intent upon mischief, perhaps of momentous proportions; it is not needed to protect the government’s legitimate interest in advancing Second Amendment rights and protecting privacy….

The post Court Strikes Down W. Va. Law Restricting Property Owners from Asking Visitors About Whether They Have Guns in Their Parked Cars appeared first on Reason.com.

from Latest https://ift.tt/SCqx4YT
via IFTTT

From yesterday’s decision by Judge John T. Copenhaver, Jr. (S.D. W. Va.) in W. Va. Coalition Against Domestic Violence, Inc. v. Morrisey; note that the court struck down two other provisions of the law, which I discuss in a separate post:

Previously, the BLPA [West Virginia’s Business Liability Protection Act] allowed property owners to prohibit the open or concealed carry of a firearm anywhere on their properties …[:] “[A]ny owner, lessee or other person charged with the care, custody and control of real property may prohibit the carrying openly or concealing of any firearm or deadly weapon on property under his or her domain.” …

In March 2018, the West Virginia Legislature enacted House Bill 4817 [the Parking Lot Amendments], which amended the BLPA to prohibit property owners from banning firearms in the parking lot areas of their properties …:

No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit any customer, employee, or invitee from possessing any legally owned firearm, when the firearm is

1. Lawfully possessed;
2. Out of view;
3. Locked inside or locked to a motor vehicle in a parking lot; and
4. When the customer, employee, or invitee is lawfully allowed to be present in that area….

No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit or attempt to prevent any customer, employee, or invitee from entering the parking lot of the person’s place of business because the customer’s, employee’s, or invitee’s motor vehicle contains a legal firearm being carried for lawful purposes that is out of view within the customer’s, employee’s, or invitee’s motor vehicle….

The court will refer to [those provisions] collectively as the “No-Prohibition Provisions.”

The BLPA also prohibits owners, lessees, and persons charged with the care, custody, and control of parking lots from “violat[ing] the privacy rights of a customer, employee, or invitee … [b]y conducting an actual search of a motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle[.]” The court will refer to this subsection as the “Search Provision.” …

Finally, the “Employment Provision” … prohibits employers from conditioning employment on an employee’s agreement to refrain from keeping a firearm locked in or locked to a vehicle in parking lot areas. {The Coalition does not challenge [a separate] subsection …, which prohibits employers from conditioning employment on “[t]he fact that an employee or prospective employee does or does not hold a [concealed carry license or provisional concealed carry license].”}

The court upheld the No-Prohibition Provisions:

[1.] The court held that, while the provisions restricted the challengers’ property rights, those restrictions were constitutionally permissible. That seems consistent with the Supreme Court’s precedents, especially PruneYard Shopping Center v. Robins (1980), which held that state decisions to require large privately-owned shopping centers to allow leafletters and signature gatherers didn’t violate the owners’ property rights.

[2.] The restrictions didn’t violate members’ constitutional freedom of association rights. The court relied here, I think correctly, on Rumsfeld v. FAIR (2006), which held that private universities’ expressive association rights weren’t violated by the requirement that they allow military recruiters on the same terms as other recruiters. (Note that, though the law in Rumsfeld was a spending condition, the Court expressly held that the law would have been constitutional even as a direct regulation.)

[3.] The restrictions didn’t violate any right of personal security that the Constitution might protect. That too, I think, is correct, given the very narrow scope of any such general personal security right that the courts have recognized.

The court also upheld the Search Provision against a vagueness challenge, again correctly, I think. And it didn’t discuss the Employment Provision separately, presumably because plaintiffs didn’t articulate enough of a challenge to it.

The post Court Upholds W. Va. Law Requiring Property Owners to Allow Guns Locked in Customer or Employee Cars in Parking Lot appeared first on Reason.com.

from Latest https://ift.tt/fMbRy1H
via IFTTT

A panel of federal appellate judges unanimously ruled Thursday that Detroit’s practice of seizing people’s cars for months at a time before giving them a chance to contest the seizure violates vehicle owners’ 14th Amendment right to due process.

The U.S. Court of Appeals for the 6th Circuit, agreeing with a lower U.S. district court, found that Michigan’s Wayne County, which includes Detroit, “violated that Constitution when it seized plaintiffs’ personal vehicles—which were vital to their transportation and livelihoods—with no timely process to contest the seizure.”

The 6th Circuit ruled that Wayne County must provide car owners a post-seizure court hearing within two weeks. Maria Miller, a spokesperson for the Wayne County Prosecutor’s Office (WCPO), said the office is currently determining its next steps in light of the decision.

The ruling is a victory for the rights of car owners, a sharp rebuke of a greedy local government, and a preview of an important issue that will soon be before the Supreme Court. As Reason‘s Billy Binion reported in July, the Supreme Court has taken up a case to decide if property owners are entitled to a probable cause hearing after a seizure, and how soon if so.

The plaintiffs in the class-action lawsuit—filed in 2020 by the Institute for Justice, a libertarian-leaning public interest law firm—included Robert Reeves. In July of 2019, police seized Reeves’ 1991 Chevrolet Camaro, along with more than $2,000 in cash, after stopping him on suspicion of stealing a skid steer from Home Depot. For more than six months, Reeves was not arrested or charged with a crime, and the WCPO didn’t file a notice of intent to forfeit his car, leaving him unable to officially challenge the seizure.

“Because of today’s ruling, the next person the county targets will have a real opportunity to go to court and challenge the seizure of their car,” Reeves said in an Institute for Justice press release. “And they won’t have to wait months or years to get it.”

Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner is not charged with a crime. Law enforcement says civil asset forfeiture is a vital tool for disrupting drug trafficking and other organized crime by targeting illicit revenue.

However, civil liberties groups like the Institute for Justice say police often target innocent owners or petty offenders—not cartel lords—and force them to bear the cost of challenging the seizure in court.

Wayne County had a particularly aggressive vehicle forfeiture program targeting illicit marijuana, prostitution, drag racing, and other public disorder and nuisance offenses. It typically offered to settle cases and return cars for $900, plus towing and storage fees. (An example of such a forfeiture notice can be seen here.) The alternative was waiting months for the WCPO to file a motion for forfeiture in court, without one’s car.

The Institute for Justice argued that forcing owners through a monthslong, onerous process to challenge a seizure was an obvious shakedown and violated their Fourth, Eighth, and 14th Amendment rights.

For example, according to the lawsuit, police twice seized the car of Melisa Ingram, another plaintiff, while her boyfriend was borrowing it—once for allegedly picking up a prostitute and another time for leaving a house connected to drug activity. Her boyfriend was never charged with a crime, nor was Ingram, but the WCPO demanded payments from Ingram to get her car back. The first time she paid. The second time she didn’t have the money and relinquished her car to the county.

Stephanie Wilson, the third plaintiff in the Institute for Justice suit, alleged that Detroit police seized two of her cars over a six-month period because she gave rides to her daughter’s father, whom police suspected of drug activity, although no drugs or guns were found in either instance. In the first case, she lost her car after missing a filing deadline. She only got her second car back after waiting two years for a court hearing.

After reviewing the plaintiffs’ cases, the panel of 6th Circuit judges could only agree that a perverse profit incentive, not crime fighting, was driving Wayne County’s asset forfeiture program.

“Although Wayne County ostensibly seized the vehicles because of reasons related to health, safety, and/or drugs, the record suggests otherwise—that the county seized the vehicles in order to obtain proceeds from fees,” the court wrote. “If Wilson’s vehicle had a dangerous connection with drugs, it is unclear why the county promptly released the vehicle after a payment of $1,355. And if Ingram’s vehicle was a public nuisance, the county’s willingness to release the vehicle for $1,800 suggests it is more interested in the money than in remedying a public nuisance.”

And as Reason has previously reported, this was happening at scale. Wayne County seized more than 2,600 vehicles between 2017 and 2019 and raked in more than $1.2 million in asset forfeiture revenues, according to public records obtained by the Mackinac Center for Public Policy, a free market Michigan think tank.

Of those seizures, 473 were not accompanied by a criminal conviction, and in 438 of those cases, no one was even charged with a crime. In 10 cases, the cars were seized under suspicion of a drug violation, even though the records say police didn’t find any drugs.

The Institute for Justice was not alone in challenging the program. In 2018, Stephen Nichols filed a class-action lawsuit after waiting more than three years for a court hearing to challenge the seizure of his car. That same year, Crystal Sisson filed a civil rights lawsuit after Wayne County sheriff’s deputies seized her 2015 Kia Soul because she allegedly possessed $10 worth of marijuana.

In a scathing concurring opinion, U.S. Circuit Judge Amul Thapar wrote that Wayne County’s scheme “is simply a money-making venture—one most often used to extort money from those who can least afford it.”

After summarizing the experiences of Reeves, Ingram, and Wilson, Thapar asked: “Does this sound like a legitimate way of cleaning up Wayne County? Or does it sound like a money-making scheme that preys on those least able to fight it? To ask the question is to answer it.”

Settlement agreements like the ones in Wayne County are not unusual, however. Before Albuquerque ended its asset forfeiture program, it would force owners, even innocent owners, to pay $850 to recover their cars. In Albuquerque resident Arlene Harjo’s case, the city offered to return her car for $4,000 after her son was arrested for drunk driving.

The Institute for Justice’s lawsuit will now head back to the U.S. District Court for the Eastern District of Michigan for further proceedings on its Fourth Amendment claims.

“The Wayne County forfeiture machine takes in over 1,000 cars every year,” Institute for Justice attorney Kirby Thomas West said. “Now, Detroit car owners can at least rest assured that they will have a speedy opportunity to challenge a seizure when they find themselves victims of this forfeiture machine.”

The post Federal Appeals Court Rules Detroit's Asset Forfeiture Violates Due Process Rights of Drivers appeared first on Reason.com.

from Latest https://ift.tt/E4oKGDd
via IFTTT

In a letter to The Wall Street Journal‘s editorial board, former President Donald Trump argues that more tariffs are needed to reduce America’s trade deficit, which has grown to a record high under the watch of President Joe Biden.

“Under Joe Biden, our trade deficits, also known as losses, have hit record highs,” Trump wrote, in response to the Journal’s criticism of his plans for higher tariffs. “Since 2000 the U.S. has racked up $17 trillion in cumulative trade deficits with the world. Only a fool or a fanatic would dismiss these facts as irrelevant.”

But only a fool or a fanatic could ignore the fact that we’ve already witnessed how raising tariffs doesn’t reduce the trade deficit, which is the gap between the total value of a country’s exports and imports. Trump’s latest protectionist proposal is undermined by the reality of Trump’s previous trade policies—and the fact that Biden has largely left them untouched since taking office. If America’s trade deficits are determined by the policies of the current president—a very iffy claim, but the one Trump is making—then the former president is equally responsible.

The numbers don’t lie. America’s trade deficit was $49 billion in March 2018, the month Trump announced his trade war and started hiking tariffs. By August 2020, the trade deficit had hit a 14-year high of $67 billion. The deficit has hovered around that same level ever since: It rang in at $65 billion in June, the most recent month for which data are available.

That increase in the trade deficit occurred alongside climbing tariff rates. The average tariff rate on imports was about 1.5 percent when Trump took office. Today, it’s over 3 percent. That’s due to Trump’s tariff increases, and Biden’s unwillingness to reverse them.

Those figures ought to raise an obvious question: If tariff rates have increased and the trade deficit has grown, why would yet higher tariffs work to reduce the gap?

Trump’s fixation on the trade deficit is not new. He spent much of the 2016 campaign and a significant amount of time during his four years in the White House complaining about the deficit, which he argues is evidence that foreign countries are somehow ripping off American businesses. (That’s wrong, but let’s not worry about that for now.)

In fact, there’s significant evidence that Trump’s tariffs actually added to America’s trade deficit. That’s because one of the consequences of higher tariffs is a reduction in exports, and fewer exports will make a trade deficit grow.

But the main reason why the trade deficit has grown in recent years is that Americans are choosing to buy more stuff from abroad. There is absolutely nothing wrong with that. Trump’s tariff plan amounts to a massive tax increase on Americans whose decisions the former president doesn’t like.

The size of the country’s trade deficit—like many other economic indicators—is largely beyond the power of a president to control. But if Trump wants to judge the current chief executive by the size of the trade deficit, he should have to answer for the same critique.

The post Trump's Tariffs Didn't Reduce the Trade Deficit. Why Would They Work Now? appeared first on Reason.com.

from Latest https://ift.tt/J9mY21h
via IFTTT

In many states, asset forfeiture laws allow law enforcement agencies to seize valuable property based on mere suspicion that it was used in a crime, and then keep it even if the owner was never convicted of any crime. On top of that, some force owners to wait many months before they even have a chance to challenge the forfeiture in a hearing. Yesterday, in Ingram v. Wayne County, the US Court of Appeals for the Sixth Circuit issued a decision holding that the Due Process Clause of the Fourteenth Amendment requires the government to give owners a hearing within two weeks, in at least some cases where their cars seized through asset forfeiture.

The ruling also features a compelling concurring opinion by Judge Amul Thapar, a prominent conservative jurist often considered a potential future Supreme Court nominee. Here’s the majority’s summary of their ruling (authored by Judge John K. Bush):

Plaintiffs allege the government of Wayne County, Michigan has a policy or practice of seizing and holding vehicles while taking months to decide whether to initiate forfeiture proceedings. Plaintiffs claim they were not provided an opportunity to be heard about the detention of their vehicles and that this failure violates the Due Process Clause of the Fourteenth Amendment. The district court held that plaintiffs are entitled to the requested hearing. We agree and hold that Wayne County violated that Constitution when it seized plaintiffs’ personal vehicles—which were vital to their transportation and livelihoods— with no timely process to contest the seizure. We further hold that Wayne County was required to provide an interim hearing within two weeks to test the probable validity of the deprivation.

Following the lead of several other circuit courts, Judge Bush concluded that the court should apply the three-part balancing test outlined in the Supreme Court’s 1976 ruling in Mathews v. Eldredge (originally developed in a context far removed from asset forfeiture): “(1) ‘the degree of potential deprivation that may be created by a particular decision,’ (2) the ‘fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards,’ and (3) the public interest.” In this case, the Sixth Circuit concluded all three factors support the property owners, and thus the latter had a right to a hearing within two weeks of seizure. But it is not entirely clear what might happen in other cases involving the seizure of cars, much less forfeitures of other kinds of property.

In his concurring opinion, Judge Thapar argues for a bright-line rule instead of a balancing test, and suggests a 48-hour standard is preferable to a two-week one:

The Constitution requires the government to provide prompt process before depriving someone of life, liberty, or property. Normally, that means a hearing. But Wayne County, Michigan hasn’t followed that simple requirement. The County has been seizing cars, holding them for months, and denying hearings to anyone bold enough to ask for them. There’s only one surefire way to get your car back: pay up. How much? $900 if it’s the first time the County seized your car. $1,800 if it’s the second time. Or $2,700 if it’s the third. Even worse, if you challenge the seizure too early or too late, the County can just keep your car.

Wayne County’s scheme violates the Constitution’s due-process requirement. Constitutional text, history, and precedent show why. History links protections for liberty and for property. And when the government arrests someone, depriving them of liberty, Supreme Court precedent requires a preliminary hearing within 48 hours. I would apply the same rule to Wayne County’s seizure of the plaintiffs’ property.

Judge Thapar’s opinion is real tour de force. It effectively explains the relevant history and constitutional text, and why property rights, especially when it comes to important property like a car, are entitled to strong procedural protection, similar—in many cases—to those provided for liberty. He also provides a strong argument for why a bright-line rule is preferable to using the Mathews balancing test:

First, Mathews suffers from problems common to many balancing tests. It requires us to
compare values that aren’t comparable: (1) the individual’s interest in more process, (2) the government’s interest in providing the same or less process, and (3) the risk of error in current procedures and the probable value of additional protections. Mathews, 424 U.S. at 335. This test puts judges in an impossible position. “It is more like judging whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 897 (1988) (Scalia, J., concurring).

Also like other balancing tests, Mathews leads to unpredictable results. With three
subjective factors at play, will two judges ever balance them in the same way? I’m skeptical. And unpredictability hurts everyone. It’s a problem for government officials who don’t know what they’re required to do. But Mathews also harms ordinary people. It prevents them from helping themselves. They can’t call out government officials for violating their rights because Mathews doesn’t say what those rights are. Instead, it says that sometime later a judge will let them know. A potential court victory years in the future is little solace for the Melisa Ingrams and Stephanie Wilsons of the world who need their cars now for work and school.

Apart from these problems, which are common to all balancing tests, Mathews also
suffers from unique shortcomings. For one, Mathews doesn’t account for all the important interests at stake. “Nowhere does the test allow the Court to weigh the plain old value of process itself, i.e., of simply knowing why the government has decided to take action against you.” Hicks v. Colvin, 214 F. Supp. 3d 627, 641 n.7 (E.D. Ky. 2016). For another, under Mathews, everything is negotiable. “[A]ll process is, potentially, up for sale.” Id. at 643 n.8. But that’s not what the Constitution says. It says you’re entitled to process when the government deprives you of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. That should be where we start and end.

The awful facts in these cases highlight the wrongs of the current asset forfeiture regime in Michigan and other similar jurisdictions. Here’s Judge Thapar again:

Wayne County claims that it seizes cars to fight crime (and holds onto them for months
for the same reason). But the County is happy to return those very cars as soon as it gets paid. That practice proves the County’s scheme is simply a money-making venture—one most often used to extort money from those who can least afford it.

Consider the plaintiffs’ experiences. Melisa Ingram works full time and goes to school at night. When her boyfriend asked to borrow her car to find a job, she loaned it to him. Rather than using it to find a job, he used the car to pick up a prostitute. The police pulled him over and seized the car. When Ingram tried to get it back, Wayne County officials told her she’d have to wait four months for a hearing. So rather than spend the long Michigan winter without a car, she paid the ransom Wayne County demanded: $1,355 (the $900 “redemption fee” plus towing and storage).

Several months later, Ingram loaned her car to her boyfriend again. This time, for him to attend a barbecue. Police pulled him over again and took the car, claiming the house he went to was linked to prostitution or drugs. Just like the last time, Ingram demanded her car back from the County. Yet again, County officials told her the best way to get her car back was to pay the redemption fee—increased this time to $1,800. But the first redemption fee had bankrupted her; she couldn’t afford to pay another one. Ingram never got her car back.

Stephanie Wilson is a single mom, pursuing her nursing degree at a community college.
Her daughter’s father is a homeless drug addict. Out of pity, Wilson twice agreed to give him a ride, and twice that cost her a car. Both times, the police took her car only moments after she picked up her daughter’s father. After the first seizure, Wilson went to the County office building to get her car back. She was told to come back later. When she did, she was told it was too late—she lost the car forever. Then, she bought a second car from a tow yard using her tax refund. The County took that one too. She insisted on a hearing, but the County delayed and pressured her to pay the $1,800 redemption fee instead. Eventually, a state judge forced the County to return Wilson’s car.

Robert Reeves, a construction worker and father of five, had his car taken by the County after leaving a job site. And it wasn’t even for anything he’d done or for anything connected to his car. His coworker had allegedly stolen a piece of equipment from Home Depot. Robert didn’t know anything about the theft and had seen rental paperwork for the equipment, but the police arrested him and seized his car anyway. The County held onto his car for more than six months even though they let him out of jail after just a few hours.

Does this sound like a legitimate way of cleaning up Wayne County? Or does it sound
like a money-making scheme that preys on those least able to fight it? To ask the question is to answer it.

The Supreme Court has not yet ruled on the extent of procedural due process protections required in asset forfeiture cases. When and if they do, I hope they follow Judge Thapar’s approach.

NOTE: The property owners in this case represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case.

The post Sixth Circuit Rules Owners of Cars Taken by Asset Forfeiture Have Constitutional Right to a Hearing Within Two Weeks of Seizure appeared first on Reason.com.

from Latest https://ift.tt/bdvZRUk
via IFTTT