Why Would the Government Fight a $900 Judgment? To Make it Easier to Take People’s Land

Sometimes the most important court cases are the most obscure and hard to understand. Caquelin v. United States comes out of the government vigorously opposing a judgment that it owes Norma Caquelin $900 for the 180 days that she couldn’t use a relatively small part of her Iowa farmland. But the case is part of a larger and ongoing fight over the status of abandoned railroad tracks that affects thousands of property owners.

Railroad lines once extended throughout the United States. At the peak in 1916, more than 270,000 miles of track crisscrossed the country. As railroads became less popular, however, thousands of miles of rail lines were left unused. Since the 1980s, the Rails-to-Trails Act has converted former rail lines into hiking and biking trails. But many of those rail lines were originally easements across private property. Under common-law doctrine, when an easement is abandoned and no longer used for the original purpose, the land “reverts” back to the property over which the easement was granted. Therefore, if the government wants to use part of an abandoned rail line for a trail, it needs to pay for the land under the Takings Clause of the Fifth Amendment.

Norma Caquelin’s great grandfather purchased a prime piece of Iowa farmland in 1892. Railroad tracks were placed on the land in 1870 and were part of the property when he purchased it. The farm was still in the family when the railroad company sought permission from the Surface Transportation Board (STB) to abandon the tracks. Under the Rails-to-Trails Act, after a railroad seeks permission to abandon tracks, potential trail developers can file a Notice of Interim Trail Use (NITU) to develop the tracks into a trail. After the railroad sought to abandon the tracks on Caquelin’s land, the city of Ackley and the Iowa National Heritage Foundation filed an NITU, which began a 180-day period of negotiations with the railroad to acquire the land. In the end, no deal was reached.

This case is about an abstract but important question: when does the government take land under the Rails-to-Trails Act? Is it when the NITU is filed or after the negotiation period ends? Since an agreement was never reached, the land was eventually abandoned and reverted back to Caquelin. But what about the 180-day period after an NITU is filed? Previously, the government has argued that the land is taken when an NITU is filed. In Ms. Caquelin’s case the judge in the lower courts awarded her $900 for that 180-day period. The government has now changed its mind, however, and rather than pay $900 they’re arguing that a taking only occurs after an agreement is reached. In rails-to-trails cases, landowners’ property is often tied up for years before a trail-use agreement is either executed or rejected. Therefore, if the government prevails in here, many owners’ land could be taken without compensation.

Cato has filed a brief in the Federal Circuit supporting Ms. Caquelin, and we’re joined by the National Association of Reversionary Property Owners, the Southeastern Legal Foundation, the Reason Foundation, and Professor James W. Ely. We argue that the original judgment awarding $900 to Ms. Caquelin was correct, and the government’s new theory is both a logical and practical disaster. Moreover, if the Court accepts the government’s theory, it will throw Trails Act jurisprudence into disarray—and there are a lot of these cases because there are a lot of unused railroad tracks. The court shouldn’t pay attention to the government’s change of mind, and it should maintain consistency and workability in Trails Act cases.

Criminal Forfeiture Requires Actual Criminal Activity

Criminal forfeiture permits the government to confiscate the assets of those who have been convicted of a crime if those assets are the product of criminal activity or connected to criminal activity. Unlike civil forfeiture, which goes after assets that are merely suspected of being connected to criminal activity and requires no criminal conviction, criminal forfeiture is justified by preventing criminals from profiting from their crimes. Civil forfeiture is much more widely abused, but even criminal forfeiture can be abused, especially if law enforcement officials and departments can profit from taking assets.

Peithman v. United States is an important criminal forfeiture case currently on petition to the Supreme Court. Allen Peithman and his mother owned two “head shops” in Nebraska that sold “potpourri,” a mixture of substances that contained some illegal drugs. They were convicted of selling misbranded “potpourri,” distributing drug paraphernalia, and investing the profits from the illegal sales back into the head shops. After the convictions, the government sought to use criminal forfeiture to take various assets from the defendants. The court eventually determined that $1.1 million was traceable to criminal activity and therefore forfeitable. The court also ruled that Peithman, his mother, and two other defendants were all “jointly and severally liable” for the forfeiture amount, which means that the full amount could be recovered from any defendant.

Criminal forfeiture is fairly broad, but there are limits on what types of assets the government can seize. One such limitation comes from the 2017 case of Honeycutt v. United States, when the Supreme Court interpreted a congressional statute to mean that forfeiture is limited to “tainted” assets, meaning property that was directly or indirectly obtained as a result of the crime. The Court explained that, because of this limitation, there could not be joint and several forfeiture liability among co-conspirators. Joint and several liability would allow the government to collect the full liability amount from any co-conspirator, regardless of the role they played in the crime or the proceeds they collected. Such a rule would “by its nature” allow the government to seize “untainted” assets, equal in value to a co-conspirator’s “tainted” assets. But because Peithman and his mother were charged under a different law than the one at issue in Honeycutt, the Eighth Circuit permitted joint and several liability. 

Cato has filed a brief in support of Peithman’s appeal. We ask the Court to take the case and rule that joint and several liability cannot be used in criminal forfeiture. While joint and several liability might make sense in tort law, it does not fit within the framework of criminal law. Not only does the doctrine ignore the fundamental principle of proportionality in criminal sentencing—reflected in the Excessive Fines and Due Process Clauses—it undermines the punitive and remedial purposes of criminal forfeiture by allowing those who actually received the proceeds from a crime to potentially escape having to forfeit their assets while those who did not benefit are forced to give up their assets. Not only this, but the concept of joint and several liability does not comport with the purposes of criminal forfeiture. Criminal forfeiture ensures that the property used in the commission of a crime will not be used again for illegal purposes. Joint and several liability, on the other hand, would allow the government to take property that had nothing to do with the crime.

The Supreme Court should also take this case to ensure that the expansion and abuse of criminal forfeiture statutes does not continue to worsen. Because seized assets are often distributed to law enforcement, there are widespread and egregious abuses of asset forfeiture. Countless people nationwide, and especially those living in poverty, face great financial difficulty after losing their assets to this practice. Because of the harmful effects and the perverse incentives of criminal forfeiture, it is up to the courts to police the scope of this practice.

Iowa Channels Colonel Jessup in Prosecuting Truth-Telling

“You can’t handle the truth!” So says Jack Nicholson’s cantankerous Colonel Nathan R. Jessup in A Few Good Men upon the prosecutor’s needling inquisition into the death of a young Marine. So also say the paternalistic officials of Davenport, Iowa to tenants who seek to learn whether their eviction was motivated by what they would consider to be a good or bad reason. The Supreme Court has long held that “hurtful” speech—even outright hate speech—shares the same level of First Amendment protection as a friendly greeting. Two years ago in Matal v. Tam, the Court summarized the law thus: “Speech may not be banned on the ground that it expresses ideas that offend.”

Well, Iowa courts seem to disagree with the U.S. Supreme Court. Theresa Seeberger of Davenport leased a single-family residence to Michelle Schreur and her 15-year-old daughter. After a history of late payments and other bad feelings, Seeberger finally decided to evict the two when the daughter got pregnant. When Schreur asked for the reason for the eviction, Seeberger listed some general grievances and then said that “[n]ow you’re going to bring another person into the mix.” While there are no local laws against evicting tenants for this reason, Davenport prohibits landlords from informing evictees of potentially discriminatory reasoning (family status being a protected category for this purpose).

The Iowa appellate court upheld fines (in the tens of thousands of dollars) that the Davenport Civil Rights Commission imposed on Seeberger, reasoning that her statement to Schreur was “commercial speech” and that the law prevents “landlords from subjecting prospective tenants to the stigmas associated with knowingly being discriminated against.” The Iowa Supreme Court allowed that ruling to stand.

But the government can’t use its desire for politeness as a weapon to “protect” residents from an offensive or derogatory opinion, especially in areas as important as eviction. Prodded by certain voices in the academy, a growing segment of the American public believes that the First Amendment does not in fact protect “hate” speech (whatever that means). This despite a long line of Supreme Court opinions that protect, among other things, callous protests near a fallen soldier’s funeral, the hurtful exclusion of gay organizations from a St. Patrick’s Day parade, and neo-Nazi marches designed to intimidate Holocaust survivors. We doubt there is anything different about the “commercial” context that should allow for the restriction of speech far less offensive than some of the things said in the non-commercial marketplace of ideas.

Laws that stop us from telling the truth strike at the heart of the First Amendment and foreshadow a brave new world in which a paternalistic and inevitably puritanical state determines to prohibit that which offends, upsets, disgusts, hurts, demeans, insults, stigmatizes, or, dare we say, “triggers.” Cato has thus joined with the Hamilton Lincoln Law Institute to file an amicus brief in support of Seeberger’s petition for review by the U.S. Supreme Court, seeking reversal of a state court ruling that undermines core tenets of First Amendment jurisprudence.

Far from protecting the Schreurs of the world from the “stigmas associated with knowingly being discriminated against,” statutory prohibitions against informing tenants of discriminatory motivations behind their eviction can only do more harm than the truth—depriving people of an honest answer to a very basic question: Why are you terminating my lease?

The Supreme Court will decide whether to take up Seeberger v. Davenport Civil Rights Commission in September upon returning from its summer recess.

What Happens When the Government Goes Too Far Investigating Child Abuse?

N.B.: This post contains descriptions of medical examinations stemming from allegations of sexual abuse of a small child.

Over at Reason, Robby Soave reports a horrifying story out of Albuquerque. A kindergarten teacher alleged one of her students—pseudonymously “Becca,” age 4— had been sexually abused by both her father, Adam Lowther, and her seven-year-old brother, “Charlie.” With the aid of the police, the New Mexico Children, Youth, and Families Department (CYFD) removed the children from their parents and set off a course of events that traumatized the Lowther family and Becca in particular.

After the better part of a year, the prosecutor declined to prosecute Adam and he was reunited with his children—but after his career was derailed and his reputation in tatters after being accused of one of the most detestable crimes against his own child. Becca had been subjected to examinations and photographs of her genitals and anus without her parents present, and her family reports that she is now terrified of doctors. The Lowthers are suing all the individuals and organizations involved in the separation and investigation.

Certainly, government agencies have the responsibility to investigate claims of sexual and other abuse of children. But such investigations must be handled with the utmost care and prudence lest the investigation itself traumatize (or re-traumatize) the children involved.

According to the Reason report and the lawsuit, the authorities in Albuquerque acted in haste, with zeal, and disregard for the welfare of the Lowther children:

“The forensic interviews and physical examinations were conducted without a warrant or court oversight. CYFD, who was the guardian of the children, acted with indifference to the trauma caused by the forensic interviews and examinations. Indeed, the removal decision was made in furtherance of the criminal investigation—not to keep the children safe from harm. This itself was contrary to the children’s interests and violative of their constitutional rights.”

In a perverse and bitter irony, careless and overzealous government actors can inflict the sexual trauma they are charged with preventing.

A Pretextual Traffic Stop Should Require Sufficient Pretext

Several years ago, Atlantic writer Conor Friedersdorf asked Twitter “If you could add one Bill of Rights style amendment to the Constitution what would it be?” I responded “The Fourth Amendment and “we mean it.”

My answer may have been tongue-in-cheek, but quite seriously, the Fourth Amendment and its protections have been eroded by the Supreme Court precedents over several decades. As a result, the power of the police to intrude upon the lives of individuals has grown and they have taken advantage of that power throughout the country.

The Fourth Amendment reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place searched, and the persons or things to be seized.”

In plain English, the amendment should mean—among other things—that the police cannot stop (or “seize”) you on the street for no good reason. In the context of traffic stops, the Supreme Court held in Whren v. U.S. (1996) that the police had to have probable cause to believe the driver or vehicle is in violation of a traffic law. In the abstract, Whren makes perfect sense: If an officer observes a moving violation, he or she can stop a driver to address the issue.

In practice, however, Whren has provided virtual carte blanche for police to stop motorists due to innumerable traffic laws, many of which are vague and subjective, that most drivers violate every time they get behind the wheel. As I explained in my 2016 Case Western Reserve Law Review article “Thin Blue Lies,” police routinely use these myriad violations as pretext to stop motorists and investigate other crimes entirely unrelated to traffic safety. Officers understand if they follow any driver long enough, they can almost certainly find a pretext for stopping the vehicle and conducting an informal roadside investigation, subverting the spirit (if not the letter) of the Fourth Amendment’s protection against arbitrary seizure.

Despite this gaping hole in Fourth Amendment protections, police officers in Nebraska initiated a traffic stop on a vehicle without probable cause of any traffic violation whatsoever. (This isn’t hyperbole. In court filings, the State of Nebraska stipulates there was no traffic violation.) As a result of the stop, the driver of the vehicle, Mr. Colton Sievers, was questioned and eventually arrested for methamphetamine possession after a search of his vehicle. He moved to have the evidence thrown out because the original stop was an illegal seizure under the Fourth Amendment.

In a rather unusual decision, the Supreme Court of Nebraska found that the stop was legal under a different case, Illinois v. Lidster (2004), which allowed police to stop vehicles at checkpoint to seek eyewitnesses to a recent crime in the area, not to investigate drivers for criminal wrongdoing. The merits of that decision aside, neither Sievers nor the State of Nebraska argued Lidster would have permitted the stop at issue in the present case.

So unusual is the Nebraska Supreme Court decision that law professor Orin Kerr, to whom Cato scholars often find ourselves in opposition regarding Fourth Amendment jurisprudence, has joined the Sievers legal team and co-authored a cert petition to the U.S. Supreme Court (SCOTUS). The petition asks SCOTUS to either hear Sievers v. Nebraska or summarily reverse the decision below.

In a Volokh Conspiracy blogpost about the Nebraska Supreme Court decision, Kerr wrote:

It’s true that Lidster allowed a suspicionless “information-seeking” checkpoint stop, which is effectively an exception to the usual rule that reasonable suspicion is required under Terry v. Ohio. [note: Terry v. Ohio (1968) preceded Whren, requiring police to have reasonable suspicion to initiate a pedestrian stop.] But the key to Lidster was that the officers were only trying to find innocent eyewitnesses to a past crime. The police set up the checkpoint at the scene of the accident hoping to find a member of the public who had seen the crime and might be able to give the police some leads. This fell out of the usual Terry requirement of suspicion, the Lidster Court held, because the police where just asking members of the general public if they could help the police.


It seems obvious that Sievers was different. This was not a case of “seeking information from the public.” The officers testified that they stopped the truck because they thought it might contain evidence of crime – specifically, stolen goods that they thought were being stored at the house where the truck had been parked. When the stop occurred, the officer who ordered the stop “advised the [other] officers to make a traffic stop to prevent the truck from leaving with any stolen items.” The lead officer explained that they need to stop and search the truck “for any items taken from the [firearms] burglary.”

And when Sievers was stopped, the officers didn’t treat him like a member of the public who perhaps just might have seen a crime. Instead, Sievers was treated as a dangerous suspect.

Hopefully, SCOTUS agrees to hear the Sievers case or summarily reverses the Nebraska Supreme Court. SCOTUS has already ceded too much leeway to police to stop motorists as pretext, but police officers should at least meet the minimum standard for a legal stop.

You can read the whole cert petition here.

Climate Change: What Would Kavanaugh Do?

In a 2012 dissent from a District of Columbia Appellate Court opinion, Supreme Court nominee Brett Kavanaugh acknowledged that “dealing with global warming is urgent and important” but that any sweeping regulatory program would require an act of Congress:

But as in so many cases, the question here is: Who Decides? The short answer is that Congress (with the President) sets the policy through statutes, agencies implement that policy within statutory limits, and courts in justiciable cases ensure that agencies stay within the statutory limits set by Congress.

Here he sounds much like the late justice Antonin Scalia, speaking for the majority in the 2014 case Utility Air Regulatory Group v. EPA:

When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy” we [the Court] typically greet its announcement with a measure of skepticism.  We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.”

Scalia held this opinion so strongly that, in his last public judicial act, he wrote the order (passed 5-4) to stay the Obama Administration’s sweeping “Clean Power Plan.” Such actions occur when it appears the court is likely to vote in a similar fashion in a related case.

This all devolves to the 2007 landmark ruling, 5-4, in Massachusetts v. EPA, that the EPA indeed was empowered by the 1990 Clean Air Act Amendments to regulate emissions of carbon dioxide if the agency found that they endangered human health and welfare (which they subsequently did, in 2009). Justice Kennedy, Kavanaugh’s predecessor, voted with the majority.

Will Kavanaugh have a chance to reverse that vote? That depends on what the new Acting Administrator of the EPA plans to do about carbon dioxide emissions. If the agency simply stops any regulation of carbon dioxide, there will surely be some type of petition to compel the agency to continue regulation because of the 2009 endangerment finding. Alternatively, those already opposed to it might petition based upon the notion that the science has changed markedly since 2009, with increasing evidence that the computer models that were the sole basis for the finding have demonstrably overestimated warming in the current era. It’s also possible that Congress could compel EPA to reconsider its finding, and that a watered-down version might find itself at the center of a court-adjudicated policy fight.

Whatever happens, though, it is clear that Brett Kavanaugh clearly prefers Congressional statutes to agency fiat. Assuming that he is confirmed, he will surely exert his presence and preferences on the Court, including that global warming is “urgent and important,” but it is the job of Congress to define the regulatory statutes.

Why Judicial Independence Matters

Late yesterday The Hill posted a short op-ed I wrote on President Trump’s nomination of Judge Neil Gorsuch to fill the seat of the late Justice Antonin Scalia. As often happens, a couple of editorial changes, especially in the title, muted somewhat the central point of the piece. But even were that not so, that point is worth further attention.

It concerns judicial independence. As I wrote, facing a nominee with impeccable qualifications, Democrats are now crafting an indirect assault against Judge Gorsuch. Thus, they’re pointing to the president’s outrageous attacks on the judiciary, among other things he’s said, and contending that he’s imposed a “litmus test” on the nominee. So they’re demanding that Judge Gorsuch “very explicitly and directly” disavow the president’s remarks, which he has already done respectfully, but in addition that he “very specifically” make his own policy views known in the upcoming confirmation hearings (which we’ve just learned will begin on March 20).