Each year, the Edmondson Community Organization (ECO)—a nonprofit in Baltimore dedicated to revitalizing the city's Midtown-Edmondson area—reviews an obscure list of properties released by the government. The task is to see how many are situated within the organization's neighborhood boundaries. The fewer, the better.

The owners of the properties that do appear have fallen behind on their property taxes and, as a result, are poised to lose their real estate in an annual tax sale conducted by the government. After poring over the list, the ECO knocks on those doors to deliver the queasy news and alert the occupants to what is about to happen.

The issue is one ECO knows intimately. A few years back, the organization accrued a $2,543 property tax debt on its community center. So in 2018, the city sold that lien for $5,115 to a California-based investor, who then foreclosed on and sold the ECO's building for $139,500. In return, the ECO got a check for the difference between its debt and the lien purchase price: $2,572.

In other words, all told, the organization paid six figures to compensate for the $2,543 it owed the government, in what a new federal lawsuit alleges is a pervasive practice in Baltimore that illegally deprives people of their equity in violation of the Fifth Amendment's Taking Clause as the city attempts to satisfy modest tax debts.

Every spring, Baltimore bureaucrats conduct a mass auction online to sell off liens like the ECO's. Sometimes the unlucky debtors have fallen just hundreds of dollars behind on their taxes.

For that, they may lose their property and the vast majority of equity tied up in it. Following an investor's purchase, an owner has a certain period to satisfy the amount of the lien, along with interest and fees, to keep their property. That's a tall order when considering these parties were struggling to pay the original debt, much less the new total, which has since ballooned. In the case that debtors are unsuccessful, the investor has effectively purchased the property for the amount they paid for the lien.

In the ECO's case, that meant an investor bought their building for about 2,600 percent less than what it ultimately sold for. The ECO, in turn, was left with a fraction of what their property was worth.

That Baltimore's process robs property owners of huge chunks of equity is not just a regrettable side effect, the ECO's lawsuit alleges; it's baked into the nature of the city's approach. "The City understands there that there is a finite pot of investor capital available to purchase all the liens," reads the complaint. "This creates a perverse incentive for the City to minimize the winning bids"—a.k.a. to depress prices—"to spread that finite pot across the highest number of liens." 

Some of the moving parts of Baltimore's approach do seem to imply that the government is not merely unconcerned with owners retaining some of their equity but that they are actively seeking to keep bids low. The more glaring examples included in the ECO's suit show that the city charges a high-bid premium that punishes investors making offers above a certain threshold and opts to fulfill the law's advertising requirement in part by listing properties in The Daily Record, a business and legal newspaper that is not targeted at the general community. (The ECO says this violates state law, which stipulates that such a sale must be advertised twice in general-circulation newspapers.)

"There's a limited amount of investor money out there," says Maryland Legal Aid's chief legal and advocacy director Somil Trivedi, who is representing the ECO, "and the city has structured a system to spread that money across as many liens as possible instead of getting as much equity back for their citizens."

The ECO is not alone, according to the suit, but is one of many victims. You don't have to travel far to find others. "In the same tax sale in which a bidder purchased a lien on ECO's building, 68 properties in Midtown-Edmondson were also subject to the tax sale," states its complaint. "The winning bids on those properties totaled only 22% of the assessed value of the properties—a dramatic loss of generational wealth for the owner of each Midtown-Edmondson property that was lost in the sale."

Home equity theft, as it's sometimes called, was once an obscure issue limited to discussion in magazines like this one. But last year it took the national stage when the Supreme Court ruled unanimously in Tyler v. Hennepin County that a local government had violated the Constitution when it seized an elderly woman's condo over a modest tax debt, sold it, and kept the profit. Geraldine Tyler, the plaintiff in that suit, had fallen $2,300 behind on her taxes, which ultimately reached $15,000 after Hennepin County tacked on penalties, interest, and fees. The government then sold the condo for $40,000 and kept the additional $25,000.

While the ECO's situation isn't entirely analogous to Tyler's—the organization was paid something—Baltimore's scheme could still very well be unconstitutional, says Christina M. Martin, a senior attorney at Pacific Legal Foundation who represented Tyler before the Supreme Court. "If the procedure that you're using to sell the property is designed in a totally unreasonable manner, then obviously people are going to still get robbed of more than what they owe," she tells me. "There's a longstanding history of courts overturning sales that have a shocking result like [the ECO's]."

Tyler, in theory, should have put an end to stories like these. But the lawsuit out of Baltimore comes as some other jurisdictions have devised creative ways to comply with the law on its face but not really in practice. After Michigan's Supreme Court ruled the practice unconstitutional, for example, the state passed a convoluted debt collection statute that requires owners to complete a Herculean legal obstacle course to reclaim their equity. It is a difficult course to win.

"It is the government's choice in the first place to collect property taxes, to decide what regime they want to use to enforce the collection of those property taxes, and so it can't then complain that the regime that it chose to engage in for an amount of money that it chooses to collect is then too difficult to do constitutionally," says Trivedi. "There are lots of jurisdictions around the country that do it differently. Some don't even have tax sales. Some have much longer periods of negotiation and payment plans….Municipalities around the country have figured out ways to collect taxes without doing it unconstitutionally."

The post Baltimore's Tax Sales Are Robbing People of Their Equity appeared first on Reason.com.

VinFast, a Vietnamese automaker that builds electric vehicles, announced in July that it would not begin production at its North Carolina plant for another four years. While the news is certainly a setback, the disappointment is compounded by the fact that the state is trying to bulldoze a number of private homes, and a church, to make the project happen.

In March 2022, North Carolina Gov. Roy Cooper announced that VinFast would build its first North American plant in Chatham County. The company would spend $4 billion and create 7,500 jobs, with production from the completed factory set to begin in July 2024. At its peak, the facility would be capable of producing 150,000 vehicles per year.

In exchange, North Carolina lawmakers agreed to give the company $1.25 billion in incentives, including $450 million for infrastructure, including "roadway improvements" and building out the water and sewer capacity; $400 million from the county; and a $316 million state grant paid out over 32 years, linked to the company's job creation promises. In effect, North Carolina taxpayers would be financing over 30 percent of the project.

President Joe Biden called the project "the latest example of my economic strategy at work." CNBC lauded the state's Democratic governor and Republican Legislature for "managing to put aside their very deep political divisions to boost business and the economy" when it named North Carolina America's Top State for Business.

But within two years, the deal was on shaky ground. The company announced in March 2023 that it would not be able to begin production at the factory until at least 2025 "because we need more time to complete administrative procedures," according to a company spokesperson.

Then in July 2024, in a press release about manufacturing output in the previous quarter, VinFast announced that it had "made the strategic decision to adjust the timeline for the launch of its North Carolina manufacturing facility, which is now expected to begin production in 2028," in order to "optimize its capital allocation and manage its short-term spending more effectively."

While this is disappointing news for many—company executives, shareholders, North Carolina state officials—it's worse for residents in the area.

Many of the state and county incentives are dependent upon VinFast meeting certain metrics: While the state doled out $125 million to reimburse the company for site preparation costs, it can claw back that entire amount if VinFast fails to hire at least 3,875 people—just over 50 percent of the required total. There are further clawback provisions if it doesn't hire at least 6,000 people and doesn't invest at least $2 billion into the project.

But even if the deal falls apart and the state gets its money back, some things can't be undone. As part of the deal, the North Carolina Department of Transportation (NCDOT) would conduct "roadway improvements" at the future site of the facility. As detailed in an August 2022 project overview, "private property is needed to construct the improvements proposed by the roadway project." And while the NCDOT "works to minimize impacts such as the number of homes and businesses displaced by a road project, some impacts are unavoidable."

In total, the state expected that the roadwork would "impact" five businesses, 27 homes, and Merry Oaks Baptist Church, which had stood since 1888. This meant the state was authorized to purchase the properties from the owners—or if the owners refused to sell, the state could simply take the properties through eminent domain.

Eminent domain, authorized by the Takings Clause of the Fifth Amendment, allows government entities to seize private property for public use, as long as the owner receives "just compensation." Of course, the only thing that separates this from a normal real estate transaction is that the use of eminent domain implies that the property owner did not want to sell but was forced to anyway.

While an electric car factory does not qualify as a "public use," the state is planning to bulldoze the houses, businesses, and church to make way for a new roadway interchange that will accommodate traffic to and from the site. Of course, under the U.S. Supreme Court's 2005 decision in Kelo v. New London, the state would also have been justified to seize property to give to a purely private party, with Justice John Paul Stevens writing that "there is no basis for exempting economic development from our traditionally broad understanding of public purpose."

In fact, that seems to be just what happened: In July, after VinFast announced its latest delay, the Raleigh News & Observer reported that so far the state had spent $96 million—nearly all of it on site preparation and infrastructure—and purchased four homes, with negotiations ongoing with other homeowners and two businesses. And sadly, "North Carolina has acquired two businesses and Merry Oaks Baptist Church through eminent domain, meaning negotiations fell short and the state took over the land after paying the previous owners fair market values assessed by a state-approved appraiser."

In July 2023, VinFast offered to donate up to three acres of land from its 2,000-acre parcel to Merry Oaks Baptist Church so the congregation could relocate. But a better solution would have been for VinFast to simply shoulder the burden of development in the first place, first by footing the bill for the project itself and then by obtaining land where the government did not forcibly remove any obstacles in the way.

The post VinFast Delays Production After North Carolina Seizes Property for Factory Site appeared first on Reason.com.

The Supreme Court on Friday ruled that the right to a trial by jury and to due process apply to people who face a steep sentencing enhancement under federal law, in a ruling that transfers some power from the hands of judges to the public and will affect many criminal defendants' future punishments.

The procedural history of the case is a bit of a whirlwind. But at its center is Paul Erlinger, who was charged in 2017 with being a felon in possession of a firearm and sentenced to 15 years under the Armed Career Criminal Act (ACCA), which increases the punishment for that offense—felon in possession of a firearm—from a 10-year maximum to a 15-year minimum if the defendant has been convicted previously of three violent felonies or serious drug offenses on separate occasions.

At sentencing came one of the initial twists, when the judge who handed down the 15-year punishment made clear it was inappropriate. Erlinger, who pleaded guilty, had gained steady employment, started a family, and remained drug-free in the more than a decade since his previous convictions, so a five-year sentence, the judge said, would be "fair." But under the ACCA, the court's hands were tied.

Then came the U.S. Court of Appeals for the 7th Circuit, which said shortly thereafter that two of Erlinger's offenses considered for the purposes of the ACCA did not actually qualify as violent felonies or serious drug crimes. Prosecutors, however, were undeterred. They returned to court and invoked convictions related to burglaries Erlinger committed 26 years before the felon in possession of a firearm charge, when he was 18 years old. Erlinger countered that the burglaries in question had been a part of one criminal episode—not distinct events as the ACCA requires—and that, most importantly, a jury would need to make the consequential determination about the separateness of those offenses.

The sentencing court disagreed, ruling it was the judge's decision and that the court was bound by the ACCA, thus reimposing the 15-year sentence that it once again called "unfortunate" and "excessive."

But Justice Neil Gorsuch, writing for the 6–3 majority opinion, explained that Erlinger did indeed have the 5th Amendment and 6th Amendment right to ask a jury whether those offenses were committed separately and if he is therefore vulnerable to the massive increase in incarceration that the sentencing court itself characterized multiple times as unjust. The outcome was at least somewhat predictable when considering yet another twist: After Erlinger appealed on the grounds that his constitutional rights had been violated, the government agreed. But the 7th Circuit still refused to reconsider his sentence, leaving Erlinger to ask the Supreme Court.

Core to Gorsuch's opinion is Apprendi v. New Jersey (2000), a Supreme Court precedent that ruled it was unconstitutional when a judge sentenced a defendant more harshly on the basis that a shooting had allegedly been motivated by racial animus, because no jury considered or made any determination beyond a reasonable doubt on that factor. A jury and a jury only, the Court ruled, may find "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" when it will cause the penalty to exceed the prescribed statutory maximum.

But Gorsuch also says the Court has something else on its side today: history. "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury,'" he writes. "The Fifth and Sixth Amendments placed the jury at the heart of our criminal justice system" in order "to mitigate the risk of prosecutorial overreach and misconduct" and serve as a check on the government.

This is not a novel area for Gorsuch, who has made clear his respect for the right to a trial by jury. Last month, he rebuked the Court's demurral from hearing a case concerning Florida's use of six-person juries as opposed to the traditional, historical practice of using 12-person panels.

Though much has been made of the ideologically fractured nature of the current Court, the decision in Erlinger did not fall neatly along partisan lines. Among the dissenters were Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson, the latter of whom argued that Apprendi—and, as an extension, the case law that has sprung from it—was wrongly decided. "I recognize that many criminal defendants and their advocates prefer the Apprendi regime, which provides some defendants with more procedural protections at sentencing," Jackson writes. "In my view, however, the benefit that some criminal defendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative systemic effects that Apprendi has wrought," which she says has hamstrung judges and increased sentencing disparities.

"The only thing judges may not do consistent with Apprendi is increase a defendant's exposure to punishment based on their own factfinding," counters Gorsuch. "Does Justice Jackson really think it too much to ask the government to prove its case (as it concedes it must) with reliable evidence before seeking enhanced punishments under a statute like ACCA when the 'practical realit[y]' for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison?"

The post The Supreme Court Again Strengthens the Right to a Jury Trial in Criminal Sentencing appeared first on Reason.com.

The job of the prosecutor is to hold the public accountable. But when the tables are turned—when the prosecutor is the one who allegedly flouted the law—it is, paradoxically, enormously difficult for victims to achieve recourse. Lawyers yesterday sparred at the U.S. Court of Appeals for the 5th Circuit over one such barrier preventing someone from suing a former assistant district attorney accused of misconduct so egregious that one judge on the 5th Circuit described it last year as "utterly bonkers."

At the center of the case is Ralph Petty, whose yearslong career included work as both an assistant district attorney and a law clerk—at the same time, for the same judges. In practice, that means his arguments as a prosecutor were sometimes performance art, because, as a law clerk, he had the opportunity to draft the same rulings he sought in court. It doesn't take a lawyer to deduce that the set-up presents troubling implications for due process.

One of Petty's alleged victims, Erma Wilson, would like the opportunity to bring her civil suit against him before a jury. In 2001, she was convicted of cocaine possession after police found a bag of crack on the ground near where she and some friends were gathered. Law enforcement offered to let her off if she implicated the guilty party; she said she didn't know.

Years later, that conviction continues to haunt her. Most notably, it doomed any chance of her fulfilling her lifelong dream of becoming a nurse, because Texas, where she lives, does not approve registered nursing licenses for people found guilty of drug-related crimes.

Wilson's conviction coincided with the beginning of Petty's dual-hat arrangement in Midland County, Texas. Though he was not the lead prosecutor on her case, she alleges he "communicated with and advised fellow prosecutors in the District Attorney's Office" on her prosecution while simultaneously working for Judge John G. Hyde, who presided over her case, giving him "access to documents and information generally unavailable to prosecutors." (Hyde died in 2012.)

"Further undermining confidence in Erma's criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma's case," her lawsuit reads. "Consequential motions, such as Erma's motion to suppress, were resolved in the prosecution's favor throughout trial. And despite the weak evidence against her, Erma's motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma's trial. Together, these facts eviscerate it." 

Typically prosecutors are protected by absolute immunity, which, as its name implies, is an even more robust shield than qualified immunity. But that issue is not before the 5th Circuit, because Wilson must overcome another barrier: Someone who has been convicted of a crime may not sue under Section 1983—the federal statute that permits lawsuits against state and local government employees for alleged constitutional violations—unless "the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."

But Willett—the same judge who characterized Petty's alleged malfeasance as "utterly bonkers"—did not appear happy with his own ruling, which he said came because his hands were tied by precedent. He invited the 5th Circuit to hear the case en banc, where all the judges on the court convene to reconsider an appeal, as opposed to a three-judge panel (the usual format for evaluating cases).

The court accepted. "The defendants say that [Wilson is] forever barred from invoking that federal cause of action or any other federal cause of action unless she first persuades state officials to grant her relief. If they never do, she can never sue," Jaba Tsitsuashvili, an attorney at the Institute for Justice who is representing Wilson, argued yesterday. "In most circuits, that argument would be rejected, and rightly so."

At the center of the case is Heck v. Humphrey (1994), a Supreme Court precedent that, as Willett noted, forecloses Section 1983 relief for plaintiffs alleging unconstitutional convictions if his or her criminal case was not resolved with "favorable termination." The catch: Most federal appeals courts have established that Heck does not apply when federal habeas relief is no longer available, as is the case with Wilson. The 5th Circuit is an exception.

Perhaps soon it won't be. Yet even if the judges agree with Tsitsuashvili's interpretation of the law, Wilson is not in the clear. She will then have to explain why Petty is not entitled to absolute immunity, which inoculates prosecutors from facing such civil suits if their alleged misconduct was carried out in the scope of their prosecutorial duties. It is nearly impossible to overcome. But Petty may not be a candidate for it, because his malfeasance was technically not committed as a prosecutor. It was committed as a law clerk.

Should Wilson be granted the privilege to sue, it will be the first time an alleged victim of Petty's gets a tangible chance at recourse. There was, of course, the fact that he was disbarred, but defendants whose trials were marred by Petty likely take little comfort in that, particularly when considering it came in 2021—two years after he retired.

The post Can This Woman Sue the Rogue Prosecutor Who Allegedly Helped Upend Her Life? appeared first on Reason.com.

A federal court yesterday heard arguments in an appeal concerning an area of law that, while niche, has seen a streak of similarly situated plaintiffs pile up in recent years. At stake: When a SWAT team destroys an innocent person's property, should the owner be strapped with the bill?

There is what I would consider a commonsense answer to that question. But in a reminder that common sense does not always guide law and policy, that is not the answer reached by several courts across the U.S., where such victims are sometimes told that "police powers" provide an exception to the Constitution's promise to give just compensation when the government usurps property for public use.

It remains to be seen where the U.S. Court of Appeals for the 6th Circuit will fall as it evaluates the complaint from Mollie and Michael Slaybaugh, who are reportedly on the hook for over $70,000 after a SWAT team destroyed much of their home in Smyrna, Tennessee.

In January 2022, Mollie Slaybaugh stepped outside her house and was greeted by a police officer with his gun drawn. She was informed that her adult son, James Jackson Conn—who did not live with her but had recently arrived to visit—was wanted for questioning concerning the murder of a police officer, which she says was news to her. Although she offered to speak to Conn and bring him out of her house, law enforcement declined to permit that, or to let her re-enter at all, so she went to stay at her daughter's house nearby.

The next day, police broke down the door and launched dozens of tear gas grenades into the Slaybaughs' home, laying waste to nearly everything in the house. Their insurance declined to assist them, as their policy—like many policies—does not cover damage caused by the government. Yet both Smyrna and Rutherford County said they were immune from helping as well.

But despite Mollie Slaybaugh's offer to coax Conn out sans tear gas, her complaint does not dispute that it was in the best interest of the community for law enforcement to do as they did that day. It merely contests the government's claim that innocent property owners should have to bear the financial burden by themselves when police destroy their homes in pursuit of a suspect.

"Law enforcement is a public good. Through our taxes, we pay for the training, equipment, and salaries of police officers. We pay to incarcerate criminals. We pay for a court system and public defenders," reads her complaint. "When the police destroy private property in the course of enforcing the criminal laws, that is simply another cost of law enforcement. Forcing random, innocent individuals to shoulder that cost alone would be as fair as conducting a lottery to determine who has to pay the police chief's salary each year."

That hypothetical is absurd. And yet the spirit of it is at the heart of several court decisions on the matter. That includes the U.S. District Court for the Middle District of Tennessee, which ruled last year that the Slaybaughs were not entitled to a payout because, in the court's view, the Takings Clause of the Fifth Amendment does not apply when the state seizes and destroys someone's property in the exercise of "police powers."

The Slaybaughs are unfortunately not alone. The notion that "police powers" immunize the government from liability is what doomed Leo Lech's lawsuit, which he filed after a SWAT team did so much damage to his home—in pursuit of a suspect that broke in and had no relation to the family—that it had to be demolished. In 2020, the Supreme Court declined to hear the case.

Similar claims are continuing to accumulate. The city of Los Angeles refused to compensate Carlos Pena after a SWAT team destroyed his North Hollywood print shop in pursuit of a suspect who barricaded himself inside, and the government in McKinney, Texas, turned away Vicki Baker after police ruined her home and much of its contents while, again, trying to catch a fugitive. After a legal odyssey of sorts, Baker was able to secure a judgment from a federal jury—though that was ultimately overturned by the U.S. Court of Appeals for the 5th Circuit, which ruled there was a "necessity" exception to the Takings Clause. Most recently, the local government in South Bend, Indiana, rejected Amy Hadley's pleas for help after police mutilated her home in search of a suspect she'd never met and who'd never been to her home. An officer's botched investigation led law enforcement to her house, and she has been forced to pay the price of that blunder. Accountability should not just be for the little people.

"The plain text of the Just Compensation Clause contains no exemptions for the police power, for public necessity, or for damage done by law enforcement. And the government bears the burden of establishing that any such exception is grounded in our nation's history and tradition," Jeffrey Redfern, an attorney with the Institute for Justice representing the Slaybaughs, told the 6th Circuit yesterday. "But the government hasn't even tried to meet that burden. Instead it asks this court to blindly follow decisions from other jurisdictions—decisions whose reasoning the government isn't really defending."

In some sense, the government is throwing what it can at the wall to see what sticks. And a fair amount of nonadhesive material is successfully latching on—an exception to the laws of nature that few entities other than the government could reasonably hope to enjoy.

The post A SWAT Team Blew Up This Innocent Couple's Home and Left Them With the Bill. Was That Constitutional? appeared first on Reason.com.

Is TikTok's time finally up? On Saturday, the House of Representatives passed a measure that would require a change in the app's ownership or ban it if that doesn't happen.

Called the Protecting Americans from Foreign Adversary Controlled Applications Act, it's essentially the same divestiture-or-ban bill I wrote about in this newsletter back in March, now tucked into a larger bill (H.R. 8038, the insanely named 21st Century Peace through Strength Act) that deals with everything from fentanyl trafficking to Russian sanctions, Iranian petroleum, Hamas, and boatloads of foreign aid.

The most talked-about part of the Protecting Americans from Foreign Adversary Controlled Applications Act would ban TikTok unless it completely breaks ties with its Chinese parent-company, ByteDance, within 270 days.

But the bill goes far beyond TikTok, and could be used to justify a ban on all sorts of popular apps tied to China, Russia, Iran, or any other country that gets deemed a foreign adversary.

Specifically, the bill makes it illegal "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application." And the bill's definition of "foreign adversary controlled application" is really broad.

It specifically defines TikTok, ByteDance, and subsidiaries or successors thereof as foreign adversary controlled applications.

The definition would also apply to an array of websites, apps, and "augmented or immersive technology" (with a focus on large social media entities), if they are headquartered in, principally based in, or organized under the laws of a foreign adversary country or if any person or entity with at least a 20 percent stake is based there.

And it would grant the president broad power to determine who meets this bill, opening the measure up for all sorts of potential abuse.

There are multiple ways in which this legislation likely violates the Constitution.

The most obvious constitutional problem is the First Amendment. The bill suppresses the free speech rights of Americans who post to TikTok and of those who consume TIkTok content.

It may also amount to a bill of attainder—a law punishing a specific person or entity, without a trial—and those are unconstitutional.

And it may also violate the 5th Amendment, as Sen. Rand Paul (R–Ky.) noted in a Reason article last week.

Paul thinks the Supreme Court "will ultimately rule it unconstitutional because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves," and "rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court."

Paul's point brings up an important—and often overlooked—factor in all of this: No one has produced evidence of any specific legal infractions committed by TikTok, let alone proven such offenses took place. There's a ton of speculation about what TikTok could be doing, but that's it. A lot of people seem sure that TikTok is a tool of the Chinese Communist Party and you're a fool if you think otherwise. And maybe it is! But that still doesn't mean we can simply sanction the company with no due process, as Paul points out.

Speculation about what the app's ties to China mean may be a good reason for certain people to approach TikTok with caution. But they cannot justify legal action against TikTok.

More Sex & Tech News

• The coddling of the American parent: "Jonathan Haidt's new book…blames youth mental health issues on social media in a way that's easy, wrong, and dangerous," Mike Masnick writes in The Daily Beast.

• Colorado activists failed to collect enough signatures to get an anti-abortion constitutional amendment on the state's ballot this fall.

• Laura LeMoon writes about fighting financial discrimination against sex workers.

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The post TikTok Measure Passed by House Is Unconstitutional in Multiple Ways appeared first on Reason.com.

As we keep more and more personal data on our phones, iPhone and Android devices now have some of the most advanced encryption technology in existence to keep that information safe from prying eyes. The easiest way around that, of course, is for someone to gain access to your phone.

This week, a federal court decided that police officers can make you unlock your phone, even by physically forcing you to press your thumb against it.

In November 2021, Jeremy Payne was pulled over by two California Highway Patrol (CHP) officers over his car's window tinting. When asked, Payne admitted that he was on parole, which the officers confirmed. After finding Payne's cellphone in the car, officers unlocked it by forcibly pressing his thumb against it as he sat handcuffed. (The officers claimed in their arrest report that Payne "reluctantly unlocked the cell phone" when asked, which Payne disputed; the government later accepted in court "that defendant's thumbprint was compelled.")

The officers searched through Payne's camera roll and found a video taken the same day, which appeared to show "several bags of blue pills (suspected to be fentanyl)." After checking the phone's map and finding what they suspected to be a home address, the officers drove there and used Payne's keys to enter and search the residence. Inside, they  found and seized more than 800 pills.

Payne was indicted for possession with intent to distribute fentanyl and cocaine.

In a motion to suppress, Payne's attorneys argued that by forcing him to unlock his phone, the officers "compelled a testimonial communication," violating both the Fourth Amendment's protection against unreasonable search and seizure and the Fifth Amendment's guarantee against self-incrimination. Even though the provisions of his parole required him to surrender any electronic devices and passcodes, "failure to comply could result in 'arrest pending further investigation' or confiscation of the device pending investigation," not the use of force to make him open the phone.

The district court denied the motion to suppress, and Payne pleaded guilty. In November 2022, he was sentenced to 12 years in prison. Notably, Payne had only served three years for the crime for which he was on parole—assault with a deadly weapon on a peace officer.

Payne appealed the denial of the motion to suppress. This week, in an opinion authored by Judge Richard Tallman, the U.S. Court of Appeals for the 9th Circuit ruled against Payne.

Searches "incident to arrest" are an accepted part of Fourth Amendment precedent. Further, Tallman wrote that as a parolee, Payne has "a significantly diminished expectation of privacy," and even though the conditions of his parole did not require him to "provide a biometric identifier," the distinction was insufficient to support throwing out the search altogether.

But Tallman went a step further in the Fifth Amendment analysis: "We hold that the compelled use of Payne's thumb to unlock his phone (which he had already identified
for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking," he wrote. "The act itself merely provided CHP with access to a source of potential information."

From a practical standpoint, this is chilling. First of all, the Supreme Court ruled in 2016 that police needed a warrant before drawing a suspect's blood.

And one can argue that fingerprinting a suspect as they're arrested is part and parcel with establishing their identity. Nearly half of U.S. states require people to identify themselves to police if asked.

But forcibly gaining access to someone's phone provides more than just their identity—it's a window into their entire lives. Even cursory access to someone's phone can turn up travel history, banking information, and call and text logs—a treasure trove of potentially incriminating information, all of which would otherwise require a warrant.

When they drafted the Fourth Amendment, the Founders drew on the history of "writs of assistance," general warrants used by British authorities in the American colonies that allowed government agents to enter homes at will and look for anything disallowed. As a result, the Fourth Amendment requires search warrants based on probable cause and signed by a judge.

Tallman does note the peculiar circumstances of the case: "Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device." But, he adds, "the outcome…may have been different had [the officer] required Payne to independently select the finger that he placed on the phone" instead of forcibly mashing Payne's thumb into it himself.

The post Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone appeared first on Reason.com.

A San Marcos, Texas, couple would like to remove a reference to a Ku Klux Klan supporter from the front of their home, but the local historic preservation board has said no dice.

The reference in question is a large metal "Z" bolted to a wrought iron Juliette balcony on the front of Kristy Kay Money and Rolf Jacob Sraubhaar's house in San Marcos' Burleson Historic District.

That "Z" is the initial of the home's owner and builder, Frank Zimmerman, a prominent local businessman and owner of the city's downtown historic theater who served as San Marcos mayor from 1949 to 1951.

Zimmerman also has ties to the Ku Klux Klan. His theater hosted Ku Klux Klan days and screenings of Birth of a Nation.

Given this legacy, Money and Sraubhaar decided they wanted to remove the balcony and its large "Z" from the front of their home.

But because their home is in a historic district, although not a historic structure itself, the couple needed to get the sign-off of San Marcos' Historic Preservation Commission to alter its façade. In May 2023 the commission voted unanimously to deny their application to remove the balcony from the front of the house.

In response, Money and Sraubhaar sued San Marcos in federal court, arguing that the city's refusal to let them remove the balcony and initial is an uncompensated physical taking in violation of the Fifth and 14th Amendments and an unconstitutional exercise of police powers under the Texas Constitution.

"It's an occupation of property for a public benefit. It's for an alleged public purpose, in this case, the people on the design review board want to look at it. So, we think that's a taking," says Chance Weldon, a lawyer with the Texas Public Policy Foundation, which is representing the couple.

In response, San Marcos filed a motion to dismiss the case, primarily arguing that Money and Sraubhaar should first have to appeal their case to the city's Zoning Board of Adjustment before taking their case to court.

The U.S. District Court for the Western District of Texas Austin Division is currently considering the case.

"We think it's wholly un-American that if you want to change something to the aesthetic of your property, you have to get sign-off from a board of unelected bureaucrats based on what they think looks right," Weldon tells Reason.

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