The Volokh Conspiracy -

Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:

I was going to write a post about Wilkie v. Robbins, the case currently before the Supreme Court that addresses the important question of whether it is permissible for government agencies to retaliate against citizens for exercising their constitutionally protected property rights. But co-conspirator Jonathan Adler has beaten me to it. I do, however, want to add a point to Jonathan's analysis: The very need to address this issue is a sign of the second class status of property rights.

For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for refusing to give the BLM an easement over his land would clearly be unconstitutional if used to punish him for exercising virtually any other constitutional right. As R.S. Radford and Tim Sandefur point out:

[BLM] agents ordered Robbins to sign over the easement, and when he refused, they grew belligerent. "The federal government doesn't negotiate," one official told him. Instead, they promised that Robbins' refusal would "come to war" and that they would give him a "hardball education." Then they began a vendetta against him that would last to the present day.

They cancelled his right of way over government-owned land, repeatedly harassed the guests at his ranch, cited him for minor infractions while letting similar violations by his neighbors go unnoticed, and brought him up on criminal charges of interfering with federal agents during their duties. The jury acquitted him after deliberating for less than 30 minutes.

If the BLM did the same thing to punish Robbins for exercising his First Amendment right to criticize the agency, his Fourth Amendment right to be free of unreasonable searches and seizures by the BLM, or his right to engage in religious practices that the BLM disapproves of, the unconstitutionality of the agency's actions would be unquestionable. Everyone agrees that these rights would be worthless, or at least gravely impaired, if government could punish people for exercising them. The same point applies to citizens' constitutional right to avoid uncompensating takings of their property in violation of the Fifth Amendment.

Note that this issue is separable from the question of the substantive scope of constitutional property rights. Even if you believe that the scope of constitutional property rights should be very narrow, there is still good reason to forbid the government from punishing people for exercising those (admittedly narrow) rights.

UPDATE: I recognize that, as explained in the SCOTUS Blog, there are two other issues in the case unrelated to the one I focus on here. That, however, doesn't undermine my main point.

UPDATE #2: Some commenters are fixated on the specific facts of this case and on the question of whether Robbins behaved badly. However, as with most Supreme Court cases, the important issues are not the specific details of this case, but the broader legal rule that will be established. If the BLM wins on the issue addressed in the post, ALL constitutional property rights will be denied protection from government retaliation, not just those belonging to owners who behave obnoxiously in some way. Moreover, as a procedural matter, the only issue before the Supreme Court is that of whether or not Robbins' case against the BLM should be dismissed on summary judgment (i.e. - without going to trial). At that stage of the proceedings, courts are required to view the facts in the "light most favorable" to the party that is seeking a trial, in this case Robbins. If the true facts are different from what Robbins claims they are, the BLM will have a chance to prove that in a trial. The only question before the Supreme Court is that of whether a trial is unnecessary because the BLM had a legal right to act as it did, even if Robbins' version of the facts is true.

	[Jonathan Adler, March 20, 2007 at 8:43am] Trackbacks 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): Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights: Is Property Protected from Government Retaliation? Comments [Ilya Somin, March 20, 2007 at 5:20pm] Trackbacks Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights: I was going to write a post about Wilkie v. Robbins, the case currently before the Supreme Court that addresses the important question of whether it is permissible for government agencies to retaliate against citizens for exercising their constitutionally protected property rights. But co-conspirator Jonathan Adler has beaten me to it. I do, however, want to add a point to Jonathan's analysis: The very need to address this issue is a sign of the second class status of property rights. For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for refusing to give the BLM an easement over his land would clearly be unconstitutional if used to punish him for exercising virtually any other constitutional right. As R.S. Radford and Tim Sandefur point out: [BLM] agents ordered Robbins to sign over the easement, and when he refused, they grew belligerent. "The federal government doesn't negotiate," one official told him. Instead, they promised that Robbins' refusal would "come to war" and that they would give him a "hardball education." Then they began a vendetta against him that would last to the present day. They cancelled his right of way over government-owned land, repeatedly harassed the guests at his ranch, cited him for minor infractions while letting similar violations by his neighbors go unnoticed, and brought him up on criminal charges of interfering with federal agents during their duties. The jury acquitted him after deliberating for less than 30 minutes. If the BLM did the same thing to punish Robbins for exercising his First Amendment right to criticize the agency, his Fourth Amendment right to be free of unreasonable searches and seizures by the BLM, or his right to engage in religious practices that the BLM disapproves of, the unconstitutionality of the agency's actions would be unquestionable. Everyone agrees that these rights would be worthless, or at least gravely impaired, if government could punish people for exercising them. The same point applies to citizens' constitutional right to avoid uncompensating takings of their property in violation of the Fifth Amendment. Note that this issue is separable from the question of the substantive scope of constitutional property rights. Even if you believe that the scope of constitutional property rights should be very narrow, there is still good reason to forbid the government from punishing people for exercising those (admittedly narrow) rights. UPDATE: I recognize that, as explained in the SCOTUS Blog, there are two other issues in the case unrelated to the one I focus on here. That, however, doesn't undermine my main point. UPDATE #2: Some commenters are fixated on the specific facts of this case and on the question of whether Robbins behaved badly. However, as with most Supreme Court cases, the important issues are not the specific details of this case, but the broader legal rule that will be established. If the BLM wins on the issue addressed in the post, ALL constitutional property rights will be denied protection from government retaliation, not just those belonging to owners who behave obnoxiously in some way. Moreover, as a procedural matter, the only issue before the Supreme Court is that of whether or not Robbins' case against the BLM should be dismissed on summary judgment (i.e. - without going to trial). At that stage of the proceedings, courts are required to view the facts in the "light most favorable" to the party that is seeking a trial, in this case Robbins. If the true facts are different from what Robbins claims they are, the BLM will have a chance to prove that in a trial. The only question before the Supreme Court is that of whether a trial is unnecessary because the BLM had a legal right to act as it did, even if Robbins' version of the facts is true. Related Posts (on one page): Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights: Is Property Protected from Government Retaliation? Comments