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.
As industrialization of America’s food system has increased in the past half a century, so too has its centralization. The average person has become almost totally disconnected from their food supply.
This distance between farm and fork has led to a lengthy list of regulations, intended to protect the health of the uninformed consumer who does not, and cannot, know anything about the safety, security, or quality of what they are buying.
Such regulations are unnecessary, and therefore should not be required, of producers who sell directly to informed consumers who can either inspect the farm’s assets and processes, or buy a product knowing that it is free of regulation.
Freeing up small farmers will increase their number, reduce restrictive compliance costs, and protect the freedom of both parties, thereby confining regulation to its proper domain.
The EPA has recently adopted a final rule to redefine the term “waters of the United States” in the Clean Water Act in a way that would expand the agency’s regulatory authority to many intrastate waters.
This rule threatens the property rights of Utahns across the state as it would allow federal agencies to impose permit requirements on the most routine industrial or agricultural activities when it concerns even the most insignificant bodies of water.
This rule exceeds the intended limits set by Congress, violates 10th Amendment principles, and is an assault on property rights and Utah’s economy.
Utah should actively oppose this federal bureaucratic overreach by refusing to comply with the EPA’s new rule and also by prohibiting state agencies from cooperating.
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: