Could You Be The Next Star Chamber Victim?

John Kerr | Communications Fellow, Institute for Justice

Have you broken the law today? Don’t be too quick to say no.

In fact, the country’s vast array of rules, statutes and regulations – local, state and federal – defies tabulation, like a precise figure for grains of sand. And the number continues to grow as each year thousands of new state and municipal laws take hold across the country. Meanwhile, the Code of Federal Regulations has expanded to more than 174,000 pages in 2013, up from about 71,000 in 1975.

Even the criminal codes – supposedly more targeted due to constitutional restraints – aren’t immune. An American Bar Association task force concluded in 1998 that, “So large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.”

The situation persists today. Boston civil liberties lawyer Harvey Silverglate argues that the average American now unknowingly commits as many as three felonies a day thanks to the throng of vague and overly broad statutes or regulations that can ensnare otherwise law-abiding citizens engaged in routine activity. “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” retired Louisiana State University law professor John Baker recently said. “That is not an exaggeration.”

Russ Caswell would agree. Mr. Caswell owns the Motel Caswell, a business his father built in the late 1950s in Tewksbury, Mass. In 2009, the federal government moved to seize his inn, arguing that a tiny percentage of guests over the previous 15 years had committed drug-related offenses on the property.

Mr. Caswell was never charged with any crime. His business was in good standing with municipal licensing authorities. He had “zero warning” that his livelihood was in danger until he was served with the forfeiture notice. “They never accused me of anything,” Mr. Caswell, now 71, said recently. “Never said do this, do that. … It was something you’d expect to happen in some Third World country, not in America.”

What Mr. Caswell didn’t know is that under civil forfeiture statutes, law enforcement officials have widespread authority to seize private property even if the owner is never formally accused of breaking the law. There is no “presumption of innocence,” as in criminal proceedings – instead, the property itself is “charged” with wrongdoing and the burden rests with the owner to prove otherwise, a costly and difficult task.

These statutes also allow law enforcement agencies to pocket a portion of the profits derived from such seizures, creating an obvious and perverse incentive for abuse. In the case of the Motel Caswell, prosecutors targeted the establishment after a special agent with the DEA flagged the motel while checking a newspaper article about an arrest at the property.  He then checked to determine whether the property had a mortgage and its total value ($1.5 million), before recommending it to his superiors for forfeiture.

Despite settlement offers from the government, Mr. Caswell fought back. “I was beyond mad,” he said. After a bench trial in November 2012, a federal magistrate last year ruled resoundingly in his favor. Not only were the government’s allegations against the property without merit, the judge held, authorities had never even attempted to work with Mr. Caswell to address the purported problem.

Today, Mr. Caswell is in the process of selling his motel. He thinks he may have found a buyer. The four-year ordeal extracted its toll. “Even now,” he said, “I wonder how something like this ever happened in the first place.”

Across the country in Washington state, Robin Farris shares Mr. Caswell’s frustration. In 2010, Ms. Farris, a retired Naval officer and political neophyte, launched a campaign to recall the Pierce County assessor-treasurer for mistreating employees, among other matters. But as she tried to exercise her First Amendment rights she found herself caught in the maw of restrictive campaign finance and disclosure laws – even facing fines and jail.

In addition to gathering the requisite signatures – a common requirement for recall efforts everywhere – Ms. Farris was subjected to myriad provisions and restrictions governing recalls in Washington, including an $800 limit on contributions. She quickly attracted the attention of the Public Disclosure Commission, a board of unaccountable appointees charged with overseeing the state’s campaign finance statutes, which accused Ms. Farris and her recall committee of breaking the law by accepting more than $800 in free legal work that helped her navigate the regulatory maze the state had erected to govern such efforts.

Ms. Farris challenged the contribution limit and won in 2012 when the 9th U.S. Circuit Court of Appeals upheld a lower court’s ruling vindicating Ms. Farris’s “free speech and association rights.” The Public Disclosure Commission didn’t back off, however, and the 23-year Navy veteran faces up to $500,000 for not reporting on required financial forms the pro bono legal work she had received to successfully challenge the $800 contribution limit. The case continues to wind through the courts.

“It’s hard to describe how frustrated I am,” Ms. Farris said about her real-world civics education. Thanks to Washington’s elaborate campaign finance requirements – designed, in truth, to protect incumbents and beat back those who might challenge the political establishment, “The average person really can’t recall an elected official,” Ms. Farris concluded.

Melony Armstrong knows a thing or two about challenging the establishment. Ms. Armstrong ran head-on into the regulatory bureaucracy when in 1999 she sought to open an African hair-braiding salon in Tupelo, Miss., and to teach others how to make a living at the craft. But Mississippi law required her to undergo 3,200 hours of “cosmetology” training – more than was demanded of budding paramedics, firefighters and law enforcement officers.

Nor was Mississippi unique. States throughout the country have erected elaborate systems of occupational licensing that now encompass such jobs as fortune teller, interior designer or locksmith. Imposed under the guise of consumer protection or public safety, many of these restrictions actually discourage job growth and innovation while amounting to thinly veiled protectionism shielding existing practitioners from competition.

Ms. Armstrong, however, was undeterred. She channeled her entrepreneurial energy into lobbying state lawmakers to vastly simplify the regulations and in 2005 the Magnolia State’s governor signed legislation to do just that. Today, more than 800 Mississippi women support themselves in this occupation, free to earn an honest living braiding hair without being forced through a gauntlet of costly and time-consuming restrictions.

In March, Ms. Armstrong testified before a U.S. House small business subcommittee.

“Imagine the creative forces that would be unleashed if government respected the rights of other would-be entrepreneurs who want to braid hair, or drive cabs, or sell flowers by the roadside, or pursue any of a hundred or more occupations that would otherwise be easy to pursue if only the government didn’t needlessly stop entrepreneurs from doing so for no better reason than to protect the politically powerful from competition,” she said, adding later, “Regulators often don’t care about people’s dreams, they only care about enforcing codes, laws and regulations that justify their existence.”

As Melony Armstrong, Russ Caswell and Robin Farris can attest, the ever-widening web of codes, laws, rules and regulations has left more and more honest, hard-working Americans at the whim of the agents and bureaucrats who enforce them. Most of us try to follow the rules. Unfortunately, the rule book has mushroomed into a massive olio of indecipherable complexity, inaccessible to average citizens yet potentially threatening their liberty, property and livelihoods.

Welcome to the new Star Chamber. 

John Kerr is a communications fellow with the Institute for Justice, a non-profit, public-interest law firm in Arlington, Va.

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