Kelo v. New London

The Dangerous Minds of Urban Planners

by Marc Scribner on August 12, 2010 · 7 comments

in Deregulate to Stimulate, Economy, Legal, Personal Liberty

Since the U.S. Supreme Court’s 2005 Kelo v. New London decision, significant attention has been paid to the way government interacts in the property development realm. The case centered on a comprehensive redevelopment plan meant to augment pharmaceutical giant Pfizer’s new research and development campus (Pfizer announced construction in 1998 and decided to close the facility in 2009). The city devised a plan, financed in part by $15 million in bonds, which included financing for the Fort Trumbull State Park and a mixed-use development adjacent to the Pfizer campus. City planners estimated that the project would create 1,000 jobs and bring in new tax revenue.

After several homeowners refused to sell, the city of New London, Connecticut, initiated eminent domain condemnations through a public development corporation set up to complete the plan. The private developer of the mixed-use property was to receive a 99-year lease at $1 annually in exchange for developing the property in a manner consistent with the city’s plan.

The U.S. Supreme Court—in an unfortunate 5-4 decision—upheld the Supreme Court of Connecticut’s ruling. The lower court found that projected increased tax revenues and job creation resulting from potential economic development satisfied the requirements of the Fifth Amendment’s Takings Clause, which restricts private property condemnations by government only when the land is taken for “public use” and that the owner is given “just compensation.” This ruling, many scholars fear, has essentially rendered the Takings Clause meaningless in terms of its ability to actually protect individual property owners from unnecessary and unjust seizures. Justice Sandra Day O’Connor went as far to write in her dissent that the U.S. Supreme Court’s decision was “to wash out any distinction between private and public use of property—and thereby to effectively delete the words ‘for public use’ from the Takings Clause.”

Fundamentally, property development is an area where government has very little positive to contribute. Government cannot accurately forecast future economic conditions, as the New London-Pfizer situation demonstrates, and public officials have far less expertise in real estate development than private sector investors. Moreover, land-use restrictions such as zoning distort the real estate markets and are often used to justify public-sector involvement in real estate, as the private sector isn’t capable of fighting city hall—or so the story goes.

A recent study on New York City rezoning found that upzoned areas (those where zoning restrictions were eased to allow more types of development) were predominately populated by lower-income minorities outside of “high growth areas.” While upzoning will have beneficial effects on the neighborhood and the city as a whole, eliminating burdensome land-use restrictions such as zoning altogether should be preferred. Removing these restrictions would also neutralize the red-tape cutting argument for more government involvement in real estate development.

Real estate development policy nationwide has also become more beholden to ideological planners. The so-called “smart growth” and “New Urbanism” movements, which aim to promote “sustainable” and “livable” urban development, have begun to dominate urban development policy discussions across the country. These ideological movements have also received support from government bureaus such as the Environmental Protection Agency. Proponents desire to limit “suburban sprawl” and attempt to create denser developments closer to the urban cores, supported by expensive public “livability” projects and transit systems. A new method of promoting and enforcing this ideology is the form-based code.

Form-based codes, which have become quite popular as zoning alternatives in the southeastern United States, go far beyond the government invasiveness of Euclidian zoning regulation. Unlike traditional zoning, form-based codes specify regulatory compliance and land-use requirements that go beyond broad separation of uses restrictions. While they are touted as an improvement over zoning, form-based codes are in reality considerably worse. Public-sector meddling (and the resulting distortions) is increased across the board, which includes new requirements on green space (e.g., shade trees on private property and public parks), accessibility to public transit, and construction guidelines. In essence, form-based codes further undermine the spontaneous order that largely characterized the real estate market prior to the Euclid v. Ambler Reality decision by greatly enhancing the ability of central planners to dictate the terms of development.

Government in recent years has grown more interested in “aiding” the private sector in real estate development through public-private partnerships. The justifications generally given are that markets alone can’t bring about redevelopment—although, if true, policy makers rarely try to understand why that is the case (perhaps consumers don’t want them in the first place?)—and the existing public institutions are inadequate or counterproductive. Most often, this entails either a comprehensive redevelopment plan as was seen in Kelo or the development of large single-purpose structures such as stadiums and indoor shopping malls.

Unfortunately, these are merely symptoms of the disease: the command-and-control urban planning mindset. Planners presumably get the same rush that the political class feels when it “democratically” exercises its authority over the unwashed masses, and have convinced themselves (and much of the rationally ignorant public) that they produce significant social returns. This is not the case. In reality, they are merely misdirecting taxpayer dollars and private investment into development projects that no one desires enough to privately provide—another example of the road to Hell being paved (a bit more literally in this case) with good intentions.

Five Years After Kelo

by Marc Scribner on June 23, 2010

in Economy, Legal, Personal Liberty

Today–this June 23–marks the fifth anniversary of the U.S. Supreme Court’s wrongheaded ruling in Kelo v. New London. Here’s my piece on Kelo+5 in The Daily Caller. The reasoning behind the opinion relied primarily on three past (although modern) Supreme Court decisions involving definitions of “public use”:

  1. Berman v. Parker (1954) — This case upheld the right of municipalities to declare entire areas blighted, even if the property in question isn’t blighted. It also accepted Washington, D.C.’s argument that the area condemnation was necessary to prevent future blight. An all around terrible decision.
  2. Hawaii Housing Authority v. Midkiff (1984) — This case involved redistribution of land titles in Hawaii. When the state moved to seize the properties, 49 percent of land in Hawaii was controlled by government and 47 percent was controlled by 72 owners. The Court failed to recognize the central problem with land distribution in Hawaii at the time: almost half of the property was controlled by government, which created massive real estate market distortions–in addition to Hawaii’s odd economic history. While Justice Sandra Day O’Connor wrote the majority opinion in Midkiff, she also wrote a scathing dissent in Kelo, where she regretted her broad language in the Midkiff ruling that opened the door for a terrible opinion like Kelo.
  3. Ruckelshaus v. Monsanto Co. (1984) — This case involved chemical industry trade secrets. While it was solely about intellectual property, the Court argued that this case was relevant because it dealt with public use in a purely economic context. The enormous distinctions between intellectual property and real property were lost on the majority in Kelo.

While the ruling itself was terrible, the events of New London demonstrate the fallibility of the municipal planner world view–that they somehow possess more market information than actual market players, and can in essence predict the future. In 2009 of last year, Pfizer announced it was closing the research facility that spawned New London’s redevelopment pipe dream, which in turn led the city to seize and demolish the petitioners’ homes. The land where their homes once stood is now largely vacant, with waist-high weeds supporting a thriving community of feral cats. Just another sad example of how economic development by fiat is bound to fail.

Property Rights Under Siege

by Marc Scribner on March 9, 2010

in Economy, Legal, Personal Liberty

Since the Supreme Court’s poorly-reasoned majority opinion in 2005′s Kelo case, Americans have been aware of the grave threats facing their homes, businesses, and property. This awareness–while driving some meaningful reform–has unfortunately not translated into iron-clad property rights protections for most Americans. Municipal planners and rent-seeking private developers still engage in the back room wheeling-and-dealing that undermines our basic rights to own and use property as we see fit.

Today, I wrote about Detroit Mayor Dave Bing’s plan to “downsize” the city in the Detroit News, and warn city officials that redevelopment takings are far more harmful than most planners realize and to avoid using eminent domain–an issue I go into at greater length in my recently released CEI OnPoint. Put simply: government has an incentive to abuse redevelopment processes and is incapable of knowing key economic variables necessary to promote long-term growth. In addition to the actual land grab, cities often bungle the public financing mechanisms to such a great degree that they often end up far worse than they started from a fiscal perspective.

So what potential relief can property owners and taxpayers reasonably expect to get? Following the Kelo decision, a federal court redefining the public use doctrine seems like a long shot. The more promising avenues appear to be state courts and particularly state legislatures (or ballot initiatives, if your state permits them). As I’ve discussed before, implementing the following reforms would be a great first step forward:

  1. Enacting state legislation mandating the creation and maintenance of a public eminent domain database accessible via the Internet. Currently, data on development takings are difficult to obtain due to the fact that eminent domain condemnations are ordered at the local level. Right now, an empirical analysis of takings within a state would require contacting every county clerk and requesting specific filings. A central state database would allow social scientists, journalists, and the public to examine the economic effects of eminent domain use and abuse.
  2. Enacting state legislation defining “public use” as “use by a government body,” which would deny municipalities the opportunity to claim that their takings deals with private developers serve the “public purpose” because they will ostensibly increase tax revenue at some future date.
  3. Enacting state legislation mandating that blight be determined on a parcel-by-parcel basis.
  4. Enacting state legislation mandating that Tax Increment Financing (TIF) be limited to the length of time required to complete public infrastructure improvements within a given TIF district. This would reduce the ability of rent-seeking private developers to collude with local officials to subsidize development projects.

Pfizer to Close Facility Behind Kelo Case

by Marc Scribner on November 10, 2009 · 1 comment

in Economy, Legal, Personal Liberty, Politics as Usual, Zeitgeist

Yesterday, Pfizer announced it was closing its research and development facility in New London, Connecticut. This is the same complex that was at the center of the redevelopment plan at issue in Kelo v. New London. From the Castle Coalition:

This was the same bogus development plan that five justices of the U.S. Supreme Court refused to question when the property owners of New London pleaded to have their homes spared from the wrecking ball.  Justices mentioned that there was a plan in place, and that so long as lawmakers who are looking to use eminent domain for someone’s private gain had a plan, the courts would wash their hands.  Now, more than four years after the redevelopment scheme passed constitutional muster—allowing government to take land from one private owner only to hand that land over to another private party who happens to have more political influence—the plant that had been the magnet for the development is closing its doors and the very land where Susette Kelo’s home once stood remains barren to all but feral cats, seagulls and weeds.

This turn of events underscores the argument, often employed by eminent domain opponents, that government-sponsored development corporations lack the economic foresight to efficiently make long-term development investment decisions. Those decisions are best made by economic actors in an open marketplace, not by bureaucrats hungry for additional tax revenue and rent-seeking private developers who have no problem promising the moon to said tax-dollar-sign-eyed officials.

The poorly-reasoned Kelo decision did do some good in galvanizing a nation-wide property rights movement, which resulted in the majority of states enacting additional property protections. While the movement has lost a little steam recently, Texas voters just approved a constitutional amendment (with 81 percent support) that will outlaw several more egregious development takings practices.

For more on moving forward on the eminent domain front, see my previous post which outlines four practical reforms for curtailing eminent domain abuse.

Land Grabbers Attack Free Speech

by Marc Scribner on August 20, 2009

in Legal, Personal Liberty, Politics as Usual, Zeitgeist

In this morning’s Washington Post, columnist George Will brings to light a particularly egregious example of politically-connected developers abusing the legal system to silence their land-grab critics:

When Kelo was decided, H. Walker Royall, a Dallas developer, already had designs on some property that for more than a decade has belonged to the Gore family shrimping business in coastal Freeport. In 2003, Royall signed an agreement with that city’s government to build a yacht marina, hotel and condominiums using property the city would seize by eminent domain.

The day after the Supreme Court made its Kelo mistake, Freeport intensified its pressure against the Gores, whose stout resistance caught the gimlet eye of Carla Main. An experienced journalist (former associate editor of the National Law Journal, she has written for the Wall Street Journal, National Review and numerous other publications), Main has recounted the case in her book “Bulldozed: ‘Kelo,’ Eminent Domain and the American Lust for Land.” Her thesis is that many “takings” of property for economic development are taking a terrible toll on the rights of everyday Americans.

In October 2008, Royall sued Main and her publisher (Encounter Books), seeking monetary damages and a ban on further production and distribution of the book. He also sued the Galveston newspaper that reviewed the book and the reviewer. A judge dismissed, on jurisdictional grounds, Royall’s suit against Richard Epstein, professor of law at the University of Chicago and New York University, whose offense was a dust-jacket endorsement of the book as a report on an “unholy alliance” between government and a private interest.

Royall’s defamation suit against Main appears ridiculous on its face, and his support for redevelopment takings is countered by a growing body of research. Moreover, Royall’s development plan was finalized before the state had even acquired the affected property, which is generally a good indication that the “economic redevelopment” in question is really just a transfer of wealth from legitimate property owners to the politically-connected developer. As I have noted in the past, these pretextual takings are recipes for economic and fiscal disaster–benefiting a few government officials and rent-seeking developers, but harming taxpayers, entrepreneurs, and homeowners.

Unfortunately, the silence-through-litigation strategy being employed by Royall has become increasingly common in the years following Kelo. The Institute for Justice, in its backgrounder on Royall v. Main, mentions the following cases:

In Clarksville, Tenn., when the city council considered a redevelopment plan that allowed the use of eminent domain for private development, a group of home and business owners formed the Clarksville Property Rights Coalition (CPRC).  Because the group dared to speak out against the project in an advertisement in a local newspaper, a member of the Clarksville city council and a member of the city’s Downtown District Partnership filed a frivolous libel lawsuit against the CPRC and demanded the group pay them $500,000. The Institute for Justice is defending the CPRC in this suit.

In Renton, Wash., eminent domain activist Inez Peterson led a successful fight against a blight designation—which would have enabled the use of eminent domain—that the city sought to place on the Renton Highlands neighborhood.  Prominent Renton developers Denny and Bernadene Dochnahl sued Peterson for various statements she made about them, such as when Peterson in an email called Ms. Dochnahl “a haughty and proud Pharisee.”

In St. Louis, the city government itself is trying to shut down a protest of its abuse of eminent domain.  Jim Roos owns well-maintained property that, as a public service, houses the urban poor.  The government has slated the property to be taken by eminent domain because of its location in a redevelopment area.  Roos decided to fight back with free speech.  On the side of one of his buildings, he placed a five-story-high mural that called for the city to “End Eminent Domain Abuse.”  Employing the city’s restrictive sign code, St. Louis is now trying to force Jim to remove the mural. The Institute for Justice is fighting to save the mural in litigation in federal court.

(Photo by Asa Gauen for IJ)

Brooklyn Land Grab Opponents Allege Government Corruption

by Marc Scribner on August 5, 2009

in Economy, Legal, Personal Liberty

Develop Don’t Destroy Brooklyn (DDDB), a group opposed to the taxpayer-financed development project Atlantic Yards, filed a motion with the New York Court of Appeals alleging that the environmental impact statement authored by the Empire State Development Corporation was illegally biased and predetermined in a manner that favors the property developer.

Specifically, according to DDDB, the latest brief filed in the case that challenges the environmental review asks the Court of Appeals to hear its case and address the following:

“1. Whether ESDC’s purposeful denial and mischaracterization of the uncontroverted economic conditions and trends in the project area, and its knowing misrepresentations of crime data in the project area, to support its ‘blight’ determination, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its determination that the area is ‘substandard and insanitary’ for purposes of designating the project a ‘land use improvement project’ under the Urban Development Corporation Act (UDCA).

2. Whether ESDC’s purposeful denial and mischaracterization of the uncontroverted economic conditions and development trends in the project area, in order to justify its rejection of project alternatives, demonstrate a degree of bias and corruption on the part of ESDC which warrants invalidation of its rejection of project alternatives under State Environmental Quality Review Act (SEQRA).

3. Whether ESDC was required to consider the economic conditions and development trends in the project area in order to exercise its authority to designate and undertake the project as a ‘land use improvement project’ under the UDCA.

4. Whether a sports arena leased for one dollar per year to a private, for-profit entity to be operated as a professional sports facility, with trivial civic benefits, may nevertheless be designated a ‘civic project’ under the UDCA.

5. Whether the standard of review of an agency action under CPLR Article 78 is the same as the standard of review in a taxpayer action under section 51 of the General Municipal Law.”

The proposed Atlantic Yards project is financed in part by $1.6 billion+ in government subsidies. Forest City Ratner, the developer, is attempting to seize many of the affected parcels through eminent domain in order to construct high rise commercial and residential towers, along with a 20,000-seat arena. As noted by Daniel B. Kelly in the forthcoming Supreme Court Economic Review 2009 (ungated working paper available at SSRN), illegal pretextual takings–use of eminent domain when a deal between government and preferred private developer has already been reached–are far more common when development agencies author environmental impact statements and undertake “blight” determination studies. These analyses typically ignore current local economic trends and attempt to paint the economic landscape in the bleakest terms possible in order to convince the appropriate bureaucrats that a state-run, public-private “economic rehabilitation” plan is neccessary.

But, largely due to the poorly-reasoned majority opinion in Kelo v. New London, property owners now often face a Sisyphean task when they are forced to confront an unholy alliance between government bureaucrats and rent-seeking private developers.

Prof. Gates’ property rights likely violated in arrest — but Obama was wrong to weigh in

by John Berlau on July 30, 2009 · 5 comments

in Culture, Odds & Ends, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

Amid all the endless media psychobabble about “national conversations” and “teachable moments” – and we will no doubt here more of this in the reporting of the “beer summit” at the White House today — I have been trying to weigh the established facts surrounding Henry Louis Gates’ arrest from a libertarian, constitutional liberties perspective.

I have come to a conclusion siding with Gates against the officers – but only in a limited sense. Although I disagree that this was a case of racial profiling, I do think the charging of Gates with disorderly conduct for yelling at the officer in Gates’ own home was an improper and likely unconstitutional infringement on both Gates’ free speech and property rights.

Generally, unless a something like a bullhorn is involved, a homeowner cannot “disturb the peace” on his own property, not matter how obnoxious the content of his speech might be. And the Cambridge police made a serious error in the charge against Gates in describing Gates’ own front porch as a “public place,” rather than the private property that it is.

But I also believe President Obama should not have weighed in on this or any other pending legal dispute. In so doing, he broke a longstanding precedent that presidents should not make any comments as to the guilt or fault of individuals in an ongoing or potential legal case, because they could compromise the impartiality of the proceeding. 

In fact, as I detail below, Obama’s speaking out may hurt Gates’ chances of prevailing in a lawsuit against the Cambridge Police Department – a lawsuit that I believe would be merited.

If anyone is owed an apology in this drama, it is Gates’ alert neighbor Lucia Whalen

Before I get to the main parts of the Gates controversy, let me say how heartened I am at the vindication of Lucia Whalen, who did what any good neighbor should do: report what she thought might be a break-in at her neighbor’s property.

Whalen’s 911 call released this week by the Cambridge Police Department shows that she never identified the race of Gates and the driver who were trying to force their way in (when pressed by the 911 dispatcher she guessed that one might be Hispanic), and acknowledged the suitcases and the possibility that they could “live there.” Here’s the audio and transcript of the call, and here’s video of Whalen’s press conference yesterday.

 And it wouldn’t rally have mattered even if she had identified race. Black or white or whatever, if people are shoving themselves at a door and trying to force it open, as Gates and his driver were, there is more than a good chance that they are would-be burglars and not the home’s owners. In too many cases, burglaries and other crimes could have been prevented if neighbors had been more alert. For example, many incidents have been reported of burglars cleaning out houses in broad daylight by posing as movers. A curious neighbor calling the police could have foiled these thefts and saved those homeowners — whatever race they were —  much anguish.

If anyone is owed an apology, it is Ms. Whalen, who was attacked by Gawker’s John Cook (who called her “racist” – and did apologize after the 911 call was released), Daily Kos blogger BabylonSista (who called her a “nosy bigot,” and so far still hasn’t apologized), and countless others. Before jumping to these conclusions now exposed for the idiocies they are, they just should have listened to Gates, who to his credit had nothing but praise for the watchful neighbor. “I’m glad that someone would care enough about my property to report what they thought was some untoward invasion,” Gates told the Washington Post last week.

(Note: I use Whalen’s name because it is now part of the public record, although it never should have been. Unfortunately, it wasn’t redacted from the police report that leaked out onto the Internet. Her name has been bandied about in blog posts and several news stories, and she has even had to hire an attorney. One of the “teachable moments” from this saga should be that police departments must do a better job protecting the privacy of those who report potential crimes.)

 Whatever Gates said to Sgt. Crowley, Gates should not have been arrested for “disturbing the peace” on his own property.

Both Whalen’s call to the Cambridge police and Sgt. James Crowley’s quick response to the dispatch should be praised. Where it gets murky is the exchange of words that occurred after Crowley stepped on Gates’ front porch.

According to Crowley’s police report, Gates immediately responded to Crowley’s announcing that he was investigating a reported break-in by that shouting that he was being targeted because he was a “black man in America.” He then hurled several insults, called Crowley a racist, and, in an allegation backed up by the report of a fellow officer who appeared on the scene named Carlos Figueroa, yelled that Crowley didn’t know whom he was “messing with.”

A major point of contention concerns IDs — both those of Gates and Crowley Crowley wrote that Gates “initially refused” to show him identification, demanding that Crowley show his police ID first, “but then did supply me with a Harvard University identification card.” But a statement from Gates’ attorney Charles Ogletree says Gates promptly handed Crowley his Harvard ID and Massachusetts driver’s licenses. Moreover, the statement says that Gates asked several times for Crowley’s name and badge number, but “the officer did not produce identification nor did he respond to Professor Gates’s request for this information.”

Then Gates obliged Crowley’s request to step out on the porch, continued the yelling of insults (according to Crowley and Figueroa), and was then arrested and placed in handcuffs on his porch – as the picture that has gone round the world shows. In Crowley’s description in the report, Gates “was placed under arrest … after exhibiting loud and tumultuous behavior, in a public place.”

But, wait a minute, “public place!” The public place in question was Gates’ own front porch, part of Gates’ private property. And “disorderly conduct” is usually intertwined with the charge of “disturbing the peace,” which require a public to disturb.

Crowley’s report notes that Gates’ “actions” on the porch – the porch that Crowley directed him to –  “caused citizens passing by the location to stop and take notice while appearing surprised and alarmed.” But no one forced the neighbors to stand around and watch the drama on Gates’ porch, and they could have been just as easily “surprised and alarmed” by the sight of so many cops there.

If Gates’ were truly yelling loud enough that Crowley couldn’t radio his findings to the police department, there might have been cause to arrest him for interfering with an investigation. But this was not the charge – “disorderly conduct” was, and this charge was dropped by the Cambridge police with good reason. Regardless of the content of Gates’ remarks to the officer — and Gates’ comments seemed pretty obnoxious from the account in the police report — unless there is something like a loudspeaker involved, one cannot “disturb the piece” by yelling on his own property. This lack of knowledge about property rights is unfortunately repeated by government at all levels.

Thus, in my opinion, the arrest not only violated Gates’ free speech rights in the First Amendment, as others have noted, but also the restrictions of the Fifth Amendment’s ”takings clause” against expropriating private property for “public use.”

Having said that, there is no evidence Crowley was influenced in making the arrest because Gates was black. He had taught a course in racial profiling, and black fellow officers have rushed to his defense. He very likely may also have hauled in a white homeowner who mouthed off to him.  But the focus on whether racial profiling occurred obscures the important issue raised in this case of constitutional liberties for all citizens: namely the fact that even though Crowley may be a good cop, in this instance, he stepped over the line and made what courts would more than likely find to be a “false arrest.”

Indeed, it is hard to find an expert who has read Crowley’s report – even if they defend him from charges of racial profiling – who argues that Gates’ arrest was justified.

National Review’s Jim Geraghty is hawkish on foreign policy and pretty much what would be called a law-and-order conservative. But on the Gates arrest, he wrote, “Being short-tempered, ill-tempered, shouting, etc., are all bad, but I do not think they ought to automatically trigger an arrest.”

He added that “if Gates’s account is correct and the officer would not provide his name, it is troubling.” He even argued that the Cambridge police “put the officer on paid leave” while it reviewed the incident. I agree.

But now of course, Sgt. Crowley is President Obama’s new best friend, on his way to the White House for the ultimate sensitivity session that goes beyond even “South Park” parody (Those readers who have seen the “Sexual Harassment Panda” and “Dr. Nelson” episodes will get this reference. For the rest of you, start watching “South Park”!) After first saying that he “acted stupidly,” Obama refined his remark to say in a special appearance in the White House press room that Crowley was “an outstanding police officer and a good man.” And that while he continued to believe “there was an overreaction” in the arrest, “Professor Gates probably overreacted as well.”

And this brings me to my third point:

3. President Obama, in the interests of justice, please follow precedent and just SHUT UP about specific and pending legal cases!

On President Obama’s butting in to this unresolved dispute, where should I start? Since he and the media don’t seem to understand what a transgression it is for a president to take anyone’s side in an ongoing or potential legal case, I’ll start with the consequences of President Richard Nixon’s unwise comment on a very different legal proceeding in 1970.

In 1970, Nixon remarked during serial killer Charles Manson’s ongoing trial that  Manson was “guilty, directly or indirectly of eight murders.” This resulted in multiple delays — with antics like Manson flashing a newspaper containing the Nixon story before the jury and his defense demanding the judge declare a mistrial due to a compromised jury — before Manson was convicted.

Since then, presidents have steered clear of weighing in on the guilt or fault of parties in dispute before a hearing or trial affirms a verdict. For instance, President Clinton never weighed in on O.J. Simpson’s innocence even after Simpson was acquitted in the criminal trial or found liable for wrongful death in the civil trial, except to say – both times – that the public should respect the jury’s verdict. “We all agreed that the president’s statement should be as neutral as possible,” recalled  fromer Clinton aide (and now ABC newcaster) George Stephanopoulos in a Newsweek essay.

President Obama can say that Gates is a friend. He can say that racial profiling is a problem. But while can speak about what the process should be, but he has to remain neutral among the two parties while that process is playing out.

In his criticism of the Cambridge Police Department, Obama has ironically aided its defense team in any potential lawsuit from Gates. Police lawyers can now legitimately ask to bar strong Obama supporters from the jury because their impartiality could be compromised by his criticism of the officers’ conduct.

As Leftie commentary site FireDogLake.com  legal blogger Bmaz, who favors a false arrest suit against the Cambridge cops, notes: “Thanks to President Obama declaring the actions of the Cambridge Police Department ‘stupid’ and wrong, the attorney defending the Police Department now has a lever in his favor should the case go to a jury. You can expect said defense attorney to move the court for a jury questionnaire to survey the jury pool as to who saw or heard said comment by the President of the United States, and in that local pool, the people who saw and/or heard of it are going to be the jurors Plaintiff Gates wants in the jury box the most.”

President Obama seems to understand neutrality in foreign policy (except in the case of Honduras, where he is openly siding with the Chavez and Castro-backed president who was ousted after flouting ruling of the country’s Supreme Court.). He needs to get his arms around the concept in the President’s relation to domestic disputes. Even if something good comes of the meeting on Thursday, the White House calendar would fill up very quickly if “Beer Summits” were utilized for every confrontation between citizens.

Bottom line: Racial profiling charges obscure real violations of civil liberties and property rights in Gates’ arrest and in other government policies. Your home is no longer “your castle,” in many instances.

One of the best summations of the flaws of the Gates arrest comes from an article by Sophia A. Nelson on TheRoot.com, a web site where for which Gates happens to serve as editor-in-chief.. Although the site deals mostly with racial issues, Nelson, ever so briefly in her column, gets to the crux of the issue of abuse of government power in the Gates incident. “Is it now unlawful to talk trash in your own home/porch if you don’t like something? … A man’s home is his castle-or is that no longer true in America?”

Unfortunately, in many cases it is no longer true in America – for black, white and all citizens – that individuals’ homes are their castles. The Institute for Justice’s Castle Coalition (named after the expression “your home is your castle.”) points to homes being confiscated and razed to make room for shopping malls, hotels, and other private commercial enterprises that do not meet the definition of “public use” in the Fifth Amendment’s Takings Clause. But these violations of property rights were unfortunately given the “green light” in the 2005 Supreme Court case Kelo v. New London.

The government is also turning property owners’ “castles” into sand through environmental rules that reach into the most routine activities of land use for homeowners and farmers. For instance, the so-called Clean Water Restoration Act, supported by Obama making its way through Congress, would remove the current Clean Water Act requirement of “navigable waterways” affecting lakes and rivers for government regulation of private land. As a consequence, “the regulatory reach of the act would extend to all water — anywhere from farm ponds, to storm water retention basins, to roadside ditches, to desert washes, to streets and gutters, even to a puddle of rainwater,” according to a letter to the Senate from the American Farm Bureau Federation. And  this act would broaden and retain the criminal penalties already in the Clean Water Act, for which a Wall Street Journal editorial has noted, “law-abiding citizens … can go to jail for moving sand on their own land.”

Although African-Americans have indeed been victims of these efforts to weaken property rights both through eminent domain and overreaching environmental restrictions (see my 2002 article from Insight magazine on black farmers whose livelihoods were threatened by a “smart growth” plan), these statist schemes threaten the liberties of all Americans with the prospect of arbitrary state power over their land and homes.

Gates told the Washington Post that his experience has inspired him to produce a documentary on race and criminal justice. He would be doing a great service to the country if he were to broaden his topic to include the erosion of property rights for all citizens.

So if we have to have a “national conversation,” let’s have that conversation be about overweening government and the effect on the constitutional liberties and property rights of everyone.