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A Much Better Sotomayor Property Rights Opinion:

In my previous post, I criticized Judge Sotomayor's flawed ruling property rights ruling in Didden v. Village of Port Chester. It is only fair that I point out that, in 2002, she wrote a much better opinion in another significant property rights case, Krimstock v. Kelly. In Krimstock, Sotomayor wrote an opinion invalidating New York City's policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding. The city had not yet initiated any civil forfeiture proceedings against them. Sotomayor correctly ruled that this policy violates the Due Process Clause of the Fourteenth Amendment, which mandates that citizens cannot be deprived of property without "due process of law." It may not be clear how much process is "due" in any given case under the Amendment. But seizure of property for up to several years at a time with no process at all is surely too little.

The Krimstock case is similar to the recent 7th Circuit decision in Alvarez v. Smith, which I blogged about in February. Krimstock may actually have been slightly less egregious because three of the owners of the vehicles in Alvarez had not even been charged with a crime, while the seven plaintiffs in Krimstock had pleaded guilty to the charge of driving while impaired (though forfeiture of property was not part of the legally mandated sentence for this offense). It's hard to dispute Sotomayor's conclusion that:

A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.

What does Krimstock say about Sotomayor's broader attitude towards constitutional property rights? I tend to doubt that it tells us very much. For reasons I elaborated more fully in my post on Alvarez, I think these cases are relatively easy. Surely holding onto valuable property for years at a time with no legal process at all is not "due process" under any defensible definition. However, the fact that the Supreme Court granted cert in Alvarez and may end up reversing it suggests that the state of protection for constitutional property rights is so bad that we can't take anything for granted. Therefore, Sotomayor does deserve some substantial credit for her opinion in this case. I do not believe that it fully outweighs what she did in Didden, however. In her time on the Second Circuit, Sotomayor ruled on two important property rights issues where the legal argument against the government was extremely strong. A 50% batting average in such situations is a lot better than 0%, but is still troubling.

markH (mail):

A car or truck is often central to a person's livelihood or daily activities.

Empathy?
5.26.2009 4:59pm
Cornellian (mail):
Dude, Where's My Car?
5.26.2009 5:00pm
Ilya Somin:
A car or truck is often central to a person's livelihood or daily activities.


Empathy?


I don't think you have to base that conclusion on "empathy." Simple common sense is sufficient.
5.26.2009 5:00pm
AJK:
So criminals' property rights are important to her, but not those of regular citizens'. Awesome.
5.26.2009 5:05pm
J. Aldridge:
Sotomayor correctly ruled that this policy violates the Due Process Clause of the Fourteenth Amendment, which mandates that citizens cannot be deprived of property without "due process of law."

Property = estate, not common property like vehicles. I don't think very many construe "property" under the Takings Clause to mean common merchandise like vehicles. And of course this is confirmed by the 39th chapter of the Magna Carta which Bingham had said the words meant under the 14th.
5.26.2009 5:09pm
Ilya Somin:
I don't think very many construe "property" under the Takings Clause to mean common merchandise like vehicles.

Actually, to my knowledge, American courts have always treated personal property - including "common merchandise" - as property under the Fifth and Fourteenth Amendments. Otherwise, it would be perfectly constitutional for the government to, for example, confiscate all cars in a city without any Due Process and without paying any compensation.

Founding-era sources such as James Madison's essay "On Property" also make clear that the concept of property extended to personal property, not just real estate.
5.26.2009 5:13pm
levisbaby:
markH's comment is spot on.

The due process clause of the 14th amendment says nothing about property that is "central to a person's livelihood or daily activities". This is dangerous, empathy-based activism.

We need judges who simply apply the law without any attempt to understand the reality of people's lives.
5.26.2009 5:14pm
Preferred Customer:
@AJK:

Speaking of due process, note that the decision involved defendants "accused of DUI and other offenses" (emphasis added). Such people are not "criminals" until they are actually convicted.
5.26.2009 5:18pm
Ilya Somin:
The due process clause of the 14th amendment says nothing about property that is "central to a person's livelihood or daily activities". This is dangerous, empathy-based activism.

It is not unreasonable to assume that the amount of process "due" depends in part on how important the property interest in question is. Moreover, a weighing of importance was required by Supreme Court precedent that Sotomayor was applying (Matthews v. Eldridge(1976)).
5.26.2009 5:23pm
Ilya Somin:
Such people are not "criminals" until they are actually convicted.

True, but as the opinion notes, they all in fact pleaded guilty to the lesser of offence of driving while impaired.
5.26.2009 5:24pm
AJK:


Speaking of due process, note that the decision involved defendants "accused of DUI and other offenses" (emphasis added). Such people are not "criminals" until they are actually convicted.


Actually all of them were convicted, and thus are criminals!

I was mostly joking with my comment -- I certainly agree with the decision. But I also think that the issue in the Port Chester case was a much more important one, and I continue to find Sotomayor's stance disconcerting.
5.26.2009 5:27pm
Oren:

It is not unreasonable to assume that the amount of process "due" depends in part on how important the property interest in question is.

Indeed, I can't think of any other method to figure out what sort of process is due in a particular seizure.
5.26.2009 5:29pm
levisbaby:

The due process clause of the 14th amendment says nothing about property that is "central to a person's livelihood or daily activities". This is dangerous, empathy-based activism.



It is not unreasonable to assume that the amount of process "due" depends in part on how important the property interest in question is.


So if the person were wealthy and had several other cars from which to choose, then the one seized would not be "central to [that] person's livelihood or daily activities."?

So, in effect, people who are poor have a greater due process right to have their vehicles returned?

Seems like dangerous, empathy-based judicial activism to me.
5.26.2009 6:01pm
J. Aldridge:
Actually, to my knowledge, American courts have always treated personal property - including "common merchandise" - as property under the Fifth and Fourteenth Amendments. Otherwise, it would be perfectly constitutional for the government to, for example, confiscate all cars in a city without any Due Process and without paying any compensation.

Generally when one spoke of "property" they spoke of "real property" or "private property," and all other property was qualified as personal, public, etc. The distinction Madison and others put on the word was the common law mode in which property descended upon death. Real property, being fixed and transferred through deed, went to the eldest son if there was no will. Personal property was divided in the event of no will.

Govt cannot just confiscate personal property because there is no constitutional provision for them to take personal property outside of civil or criminal law.
5.26.2009 6:07pm
Dilan Esper (mail) (www):
It is not unreasonable to assume that the amount of process "due" depends in part on how important the property interest in question is.

Of course. The problem with your position is that you don't see how empathy can be helpful in making that determination.
5.26.2009 6:45pm
geokstr (mail):
Look, all this debate about "property" is a waste of time. It was declared irrelevant and irrefutably shown to be a concept only defended by the "ignorant" yesterday on another thread by a "Marxist theoretician" (whatever that is.) It is only through the "pleasure of the fed" that you are allowed to own anything at all.

War is Peace
Freedom is Slavery

Orwell here we come.
5.26.2009 7:01pm
Oren:

Govt cannot just confiscate personal property because there is no constitutional provision for them to take personal property outside of civil or criminal law.

Did the common law rule of nuisance get repealed somewhere, because last I checked, the States had the police power to declare and abate all public nuisances.
5.26.2009 7:24pm
Desiderius:
geokstr,

"Orwell here we come."

I've had quite enough of the Left crying wolf without the Right joining the chorus, thanks.
5.26.2009 9:47pm
clmm8899 (mail):
5.27.2009 2:58am
geokstr (mail):

Desiderius:
geokstr,

"Orwell here we come."

I've had quite enough of the Left crying wolf without the Right joining the chorus, thanks.

You and I obviously have a difference of opinion in how close to 1984 we keep inching.
5.27.2009 5:17pm

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