Is Property Protected from Government Retaliation?

Morse v. Frederick, the "Bong Hits 4 Jesus" case, captured most of the media attention at the Supreme Court yesterday. The other case on the Court's Monday docket, Wilkie v. Robbins, is potentially just as significant. One of the issues in the case is whether the Fifth Amendment protects private property owners against retaliation by government officials for exercising their constitutional right to exclude others from their land. The U.S. Court of Appeals for the Tenth Circuit said yes. The Justice Department says no.

The facts of the case are straightforward: The federal Bureau of Land Management acquired an easement on a ranch, but neglected to record it. Robbins subsequently purchased the ranch and, due to the BLM's mistake, acquired the property sans easement. BLM officials demanded that he sign it over anyway, and when Robbins refused the government officials sought to give him a "hardball education" and retaliated by, among other things, harassing Robbins and his guests, filing trumped up charges against him. After this conduct continued for some time, Robbins had enough and sued the BLM agents involved for damages, and won [the right to pursue his claims in federal court].

R.S. Radford and Tim Sandefur of the Pacific Legal Foundation (an amicus supporting Robbins) write about the importance of the case in the Legal Times:

It’s hard to imagine what else property rights might mean, other than that an owner can refuse the government’s demands without fear of reprisal. The defining characteristic of property is that it insulates us from others — creating a locus of security, privacy, and autonomy. Official retaliation for the assertion of property rights violates their very essence by piercing that shield and striking at the independence that private property protects — thus, in Blackstone’s words, “abridging man’s natural free will.” . . .

. . . To have a right to something means to be free to act without fear of injury or prosecution: to be free to choose for oneself, rather than being coerced. When government intimidates people into acquiescing to its demands, their rights are rendered meaningless.

While there are seven amicus briefs supporting the landowner in this case, mostly from various property rights or resource user groups, the lone brief supporting the government is this one from the National Wildlife Federation. According to NWF, protecting landowners from this sort of action could negatively impact federal land management and environmental protection.

The various briefs are available here. The transcript is here.

UPDATE: While "the facts of the case are straightforward" as I wrote above, the procedural issues are certainly not, and this may prevent the Court from reaching the issue I discuss in this post. For a concise and readable summary of the legal issues, see here.

Related Posts (on one page):

  1. Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:
  2. Is Property Protected from Government Retaliation?