Center for Private Property
This past week, a nursing mother was told to leave a Layton business because she was nursing. The woman claims that the establishment “broke the law” and that she “knows her rights,” and for that reason called a police officer to back her up. Facing pressure, the company issued a statement which reads, in part: “We fully respect and support the rights of women to breastfeed in public as supported by Utah law.”
What does Utah law actually say about breastfeeding? (Hint: the woman is wrong, and the company is right—sort of.)
There are only a handful of laws dealing with breastfeeding in Utah. Section 17-15-25 states that county governments may not prohibit breastfeeding “in any location where [the woman] otherwise may rightfully be…” This is not a statutorily recognized right, but rather a prohibition against county governments banning the action in places where nursing mothers have the right to be. Section 10-8-41 has the same reference, but to boards of commissioners and city councils.
Recently we interviewed a St. George resident who was warned by a city code enforcement officer that his house sharing attempts via the popular site Airbnb were in violation of an ordinance prohibiting short-term rentals. The Palmers were using Airbnb to rent the basement of their home to tourists in order to supplement their family’s income—an activity that yielded not a single complaint from anybody.
This crackdown highlights the strong arm of the regulatory state over a growing “sharing economy” which pits innovation, individual liberty, free enterprise, and private property rights against the regulatory “police power” of local government. This is reminiscent of recent actions in Utah to regulate popular ride-sharing apps Lyft and Uber, and innovative insurance broker Zenefits—except in this case the government is not just attempting to regulate commerce alone, but the very rights of an individual property owner.
In house-sharing arrangements, sites like Airbnb and VRBO match travelers with individual property owners who are willing to share all or part of their property with someone for a short period of time. In Utah you can find anything from someone’s air mattress for $10 per night to an entire luxurious ski lodge for thousands of dollars per night. Such a wide range of options do not exist in the commercial lodging market.
Jeremy Trentelman is a resident of Ogden who recently built a cardboard fort for his three-year-old daughter. While his young daughter received a lesson in fatherly love and support, she is also now learning a lesson about the raw and invasive power of the state.
Mr. Trentelman has been admonished by a code enforcement officer for being in violation of city ordinance, which reads: “It is unlawful for any owner, occupant, agent or lessee of real property within the city, to allow, cause or permit the following material or objects to be in or upon any yard, garden, lawn, or outdoor premises of such property: 1. Junk or salvage material; 2. Litter; 3. Any abandoned vehicle or inoperable vehicle.”
In an interview with the Standard Examiner, he defended his front lawn feature: “It’s obvious it’s not junk. There is a slide over the side and child graffiti all over the boxes. It looks like a fort.”
New legislation proposed by Senator Steve Urquhart seeks to legally prohibit certain landlords and business owners from discriminating against people due to their “gender identity” and “sexual orientation.” Additional legislation sponsored by Senator Jim Dabakis would prohibit discrimination in a place of public accommodation on the basis of sexual orientation, gender identity, or gender expression.
Both of these bills—along with the underlying laws they seek to amend—violate property rights and should therefore be opposed.
In a press conference this morning, the LDS Church announced its support for the general idea behind these measures. Advocating “fairness for all,” proponents argue that common decency demands enacting laws that will protect religious liberty while protecting the “right” of LGBT persons to rent residential property or be employed at a certain business. Elder D. Todd Christofferson, kicking off the conference, called for “solutions that will be fair to everyone.”
In referencing the general idea behind the Church’s support, Sister Marriott of the Young Women’s General Presidency argued that “basic rights such as securing a job or a place to live should not depend on someone’s sexual orientation.” However, no person has the right to somebody else’s property; it is incorrect to say that person X has a right to employment in person Y’s business—for any reason. A right for one person creates a corresponding duty for another; if a gay man has the right to rent an apartment from a person who personally detests gay people, that implies that the landlord has a moral duty to do so. He does not, and therefore the right does not exist.
U.S. Attorney General announced today that his office would no longer allow state and local law enforcement officials to participate in the Equitable Sharing civil asset forfeiture program, with limited exceptions.
Under this program, police officers could transfer a civil asset forfeiture case to federal agents, where lower legal standards made it easier to forfeit—and cash in on—the seized assets. 80% of the resulting revenue would flow back to the state or local agency, creating an easy and enticing avenue for generating funds for the department.
This “policing for profit” was the highlight of an Institute for Justice report that revealed the prevalence of this problematic violation of property rights. The Washington Post also recently published a lengthy investigation into the issue, helping to bring it to the fore of public consciousness.
In a presentation to the Law Enforcement and Criminal Justice Interim Committee this week, a representative from the Utah Commission on Criminal and Juvenile Justice presented legislators with a report on how much money has been obtained through forfeiture for the past year.
There are two types of forfeiture: civil and criminal. The former involves seizing property from a person who has not been charged with—let alone convicted of—a crime. See here for more information.
CCJJ’s report this week combines both types of forfeiture into a single data point, making it impossible to distinguish how much property was seized under the objectionable civil form.
Throughout the country, police officers are able to seize a person’s property without that person being charged with—let alone convicted of—a crime. The policy giving legal sanction to this action is known as civil asset forfeiture, one of worst by-products of the so-called “war on drugs.”
Civil asset forfeiture has received modest media attention over the years, and was thrust into the spotlight once more by a lengthy investigative piece by The Washington Post titled “Stop and Seize.” This article surveys to what extent this legal strategy has been used to confiscate a citizen’s property since 9/11, finding that officers charged with upholding the law (and presumably protecting people and their property) have seized, without a warrant, $2.5 billion since that time from innocent individuals.
Concurrently released with the Post article is a new report on civil asset forfeiture by the Institute for Justice, titled “Bad Apples or Bad Laws?” “The study concludes that civil forfeiture abuse isn’t a problem of just a few ‘bad apple’ police officers or rogue prosecutors, but rather bad laws that encourage bad behavior,” said Scott Bullock, a senior attorney at the Institute for Justice. “Civil forfeiture creates a real and perverse incentive for law enforcement to pursue profits instead of justice.”
In a throwback to English feudalism, the United States Government currently claims ownership of over 60% of Utah’s land mass and even higher portions of land in many other western states. The vast ownership and retention of land by the federal government is an aberration in the history of the United States where the general policy for public land was one of disposal and settlement rather than retention and federal management. In Utah, lawmakers have sought to assert Utah’s claim for such lands to be disposed of as promised by the federal government when Utah was created as a state.
In 2012 the Governor signed HB 148: The Transfer of Public Lands Act (TPLA), sponsored by Representative Ken Ivory whom we interviewed about this subject last year. The bill passed with healthy majorities in both chambers and was also ranked in our Libertas Legislator Index for 2012. The new law directs the United States Government to transfer title for public lands back to Utah as promised in the Utah Enabling Act. Under TPLA, this transfer is called for by December 31st, 2014. The bill also called for a study which was subsequently released by the Utah Constitutional Defense Council. Earlier this year, a BYU Law Review Article evaluated the legal issues surrounding the TPLA.
We agree with The American Lands Council and other groups calling for such transfers. The transfer of public lands is critical to ensuring the state sovereignty envisioned by the founders for our federal system. The retention of land by the federal government is an inappropriate and unjust arrogation of power—a power not based in constitutional principles, but the loose and broad interpretation, or outright violation, of them.
The following are some of the key legal arguments for the transfer of public lands:
“What [government does] is either hurtful or profitless, injurious or ineffectual. It never can bring any useful result.” —Frederic Bastiat
The Salt Lake City Council is proposing to increase the scope of government interference in private property rights and free market commerce. According to their website, they propose to require that businesses with drive-through services accommodate all potential customers (whether on foot, bicycle, motor vehicle or other mode of transportation) to the same extent that they accommodate motor vehicle drive-through customers. The Council proposes to require that, during the hours in which any business offers drive-through services, they must also offer a walk-up window and/or walk-in services.
The proposal also includes new design standards for future development, including direct entry through the front of the building, paths leading to the entrance, well-established pedestrian routes, decorative paving, etc.
These requirements clearly violate basic private property rights. We have discussed these general rights in previous posts, and we have discussed specific violations of these rights as other government entities, such as Highland City, San Juan County, Sandy City, the State of Utah, Woods Cross, and Cedar Hills, have violated or considered violating these rights.
Private property can only be so called if the owner has the right to determine what he or she will or will not do with that property. So long as the property owner does not use the property to violate the rights of others, then no other individual or group of individuals (even under the guise of government) can rightly interfere.
We urge Salt Lake City residents and all Utahns to oppose the Council’s proposal. They request your feedback here.
“The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property”—John Locke, Second Treatise of Civil Government
Last night the City Council for the City of Springville considered an ordinance that would permit residential homeowners to keep and raise chickens in their backyard—albeit subject to heavy regulations and a license. After robust public comment, including input from Libertas Institute, the ordinance was passed with only one dissenting vote. While we applaud this move and welcome Springville to the growing club of cities allowing residential hens, we argue that it shouldn’t take an official ordinance to permit something that is fundamental to private property rights in the first place.
The property rights that John Locke spoke of in his treatise were not just residential property rights, but the right to productively use one’s own property for gain, subsistence, and enterprise. Since the 13th century when King John acquiesced to the Magna Carta, the English tradition of property rights has led to a modern world where nearly any person can enjoy the ownership of property. However, over just the last century in our country, a troubling trend of growing government authority in our lives has placed property rights under direct and sustained attack. From asset forfeiture to the expanded use of eminent domain, and even to zoning regulations, property rights have waned over the last century.