The Institute for Justice is dedicated to protecting the right of every American to own and use his or her property freely. Respecting the right of private property is essential to a just and prosperous society. But government at all levels—local, state and federal—routinely infringe on these rights.
Today, two of the greatest threats to private property rights are the abuse of eminent domain and civil forfeiture laws. Eminent domain is the power of the government to take private property for a "public use," like bridges or roads. But in the 1990s and early 2000s, local governments increasingly used eminent domain for private development.
In Kelo v. New London, the U.S. Supreme Court ruled that the government could condemn homes and businesses, not for a genuine public use but to hand them over to private developers. We are committed to defending property owners who face eminent domain for private gain.
Civil forfeiture allows law enforcement to seize and keep private property, even if the owner has never been charged with a crime. We are leading the charge to restore due process and respect for property rights. No one should lose his or her property without being convicted of a crime.
In 2016, we filed 11 new property rights lawsuits, including a class action against New York City's "no-fault" evictions and challenges to civil forfeiture in California, Oklahoma, Arizona, Indiana, New Mexico and Connecticut. In addition, we launched new cases against government land grabs in Connecticut and Georgia, challenged Dallas' oppressive use of "amortization" against a popular auto mechanic, and filed a lawsuit against rental inspections in Minnesota.
Who would have thought it would be illegal to make music in Nashville? Unfortunately, the city's ban on home based businesses means local musicians, hairstylists and other aspiring entrepreneurs face steep fines and potential imprisonment if any customers physically come to their homes to do business. Nashville residents Lij Shaw and Pat Raynor have both lived this nightmare.
Lij Shaw operates a successful recording studio in his home, while Pat undertook an expensive renovation to her home to open up a hair salon that met all of Tennessee's health and safety standards. Both Lij and Pat ran their businesses for some time without any trouble. Then one day, the city government threatened to fine and take them to court unless they shut down their home based businesses.
This ban has done real damage to their ability to earn an honest living. Lij has lost significant revenue since being ordered by a city officer to stop publishing his address in advertisements for his business. Meanwhile, Pat has been forced to rent a costly and inconvenient commercial studio just to keep her hairstyling practice in business.
Home based businesses have been a common and legitimate use of property for entrepreneurship for centuries. They cost less to get off the ground, they promote healthy work-life balance, and they create jobs that otherwise might not exist. Anyone who has taken a piano lesson in their teacher's home or sent their child to daycare in a neighbor's home has been a client in a home based business.
Even Nashville's government knows it would be outrageous (and impossible) to find and destroy every home based business in the city, so it enforces its client prohibition with an unwritten don't-ask-don't-tell policy.
Rather than reform this unfair law, the city solicits anonymous complaints on its website,[1] turning neighbor against neighbor and shutting down home based businesses without any evidence of harm to anyone.
Most Nashville home based business owners never get in trouble for violating the client prohibition. Many aren't even aware of it. But the ban can be as disastrous as a lightning strike for the unlucky few who get caught. Those local entrepreneurs, like Pat and Lij, find their very livelihoods threatened.
This arbitrary law has nothing to do with regulating traffic or noise in residential neighborhoods. The city zoning code allows home based day cares and short term rentals to serve up to 12 clients a day on the property. People who live in historic homes are also allowed to use their homes for special events such as wedding receptions and catering dinners up to several times a week.
Lij's and Pat's outlawed home based businesses are as neighborhood friendly as the businesses Nashville already permits. There's no good reason for Nashville to shut them down, so Lij and Pat are fighting back. They've teamed up with the Institute for Justice and the Beacon Center of Tennessee to vindicate their constitutional right to use their home to earn an honest living.
Pottstown, Pennsylvania has a rental inspection law that forces landlords and tenants to open their properties and homes to submit to intrusive inspections. This ordinance allows the government to enter the most intimate confines of tenants' homes—including bedrooms, bathrooms, kitchens and closets—in search of housing code violations, even when landlords and tenants object.
Needless to say, some tenants do not want the government entering into these deeply personal spaces where information about their private lives may be visible. Ordinarily, when a person does not want the government to enter their home, they can request a warrant supported by some evidence that a violation of the law has occurred.
However, in Pottstown, if a landlord and tenant request a warrant, the government can go to court and readily obtain an "administrative" warrant—a warrant that does not require any evidence that anything is wrong with the home. This program makes it easier for the government to get into the homes of ordinary, law abiding citizens than the homes of suspected criminals.
And Pottstown's rental inspection program is not unique. Rental inspection programs have become increasingly common in Pennsylvania and across the country. These programs give the government the green light to conduct blanket searches of innocent people's homes without their consent and are an end-run around constitutional protections for property rights.
The Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution guarantee property rights and the right to privacy in the home. That is why the Institute for Justice has teamed up with a Pottstown landlord and his tenants to file a lawsuit challenging the government's use of administrative warrants to search the homes of ordinary people who do not want inspectors inside.
Their lawsuit does not seek to prevent tenants from inviting inspectors inside if a problem with their home has gone unaddressed by their landlord. They have filed this lawsuit to stop the government from entering private property without truly voluntary consent or a warrant that is based upon traditional probable cause.
The U.S. Customs and Border Protection (CBP) agency seized and held Gerardo Serrano's truck for over two years because he forgot he'd left five bullets in his center console. Welcome to the upside down world of civil forfeiture, where law enforcement can seize your stuff without ever charging you with a crime.
Five forgotten bullets are all it takes for the government to argue that someone is an international arms smuggler and rob them of their constitutional rights.
It all started in September 2015 when Gerardo was crossing the border into Mexico at Eagle Pass, Texas, in his nearly new Ford F-250 pickup truck. While he waited to cross, he snapped photos to share with his relatives on Facebook. Two CBP agents stopped him at the side of the road. Gerardo, the agents said, was being detained because he'd taken photos.
While detained, Gerardo watched agents search his truck. Finally, one officer gleefully said "we got him" and held up five low caliber bullets Gerardo had forgotten were in his center console. The agents told him he was free to go, but they were keeping his truck. According to CBP, the truck was subject to civil forfeiture because it was used to transport "munitions of war." To get home to Kentucky, Gerardo had to rent a car.
For over two years, the agency held Gerardo's truck without ever taking its case before a judge. Gerardo had to pay 10% of the value of the truck—around $3,800—just to contest the seizure. No court ever approved the seizure of Gerardo's truck, and Gerardo never had an opportunity to argue that he should get the truck back. The truck continued to sit in a government impound lot while he continued to make monthly payments.
Gerardo was never convicted of a crime, let alone charged with one. Indeed, forgetting a few bullets in your car is not a crime. For taking pictures, Gerardo's truck was seized under a law designed to punish international arms smugglers, not innocent Americans visiting family in Mexico.
Done waiting, Gerardo joined with the Institute for Justice to sue to get his property back. Finally, in October 2017, the government returned Gerardo's truck.
Gerardo's case is still ongoing, as he sued for more than just the return of his property. Gerardo filed suit on behalf of a class of other U.S. citizens who have had their vehicles seized by Customs and Border Protection. The suit seeks an order requiring the agency to provide a prompt post seizure hearing whenever they take vehicles for civil forfeiture. Though Gerardo recovered his own truck, he will continue to press his class action claims.
