Property Rights in South Carolina

private property sign

PRIVATE PROPERTY IS TOTALLY SECURE IN THIS CONSERVATIVE STATE, RIGHT? WRONG.

In the wake of the landmark U.S. Supreme Court’s Kelo decision, South Carolina attempted to shore up property rights with a constitutional amendment. As it now stands, however, the state constitution does not protect private property from seizure by government or even private companies. Currently, in fact, private property can be seized at the discretion of the legislature.

At present, private property may only be taken for “public use”: for example, to build a road or to construct a public building. But the state constitution doesn’t define public use, with the result that state laws may be passed by the legislature and upheld by the courts that allow government to take land for almost any reason at all. The constitution allows, for example, for condemnation and seizure of property if it does not have sufficient ventilation or light.

Further, South Carolina’s laws on civil asset forfeiture are stacked against citizens. Currently, the state must only show probable cause to seize property.  The difficulty comes in trying to have property returned in cases in which it was taken wrongfully. If your property was seized under South Carolina asset forfeiture laws, you must prove that your property was not forfeitable. A simple example: A farmer going to buy a tractor with cash is pulled over. The police decide that cash may be drug profits and they seize the truck and cash. For that property to be returned, the burden of proof isn’t on the police but on the farmer.

This flips the traditional notion of justice on its head.  In essence, property seized by the state is automatically assumed to be justly taken; the owner must prove it wasn’t.

Even worse are the perverse incentives that encourage the practice. For example, 95 percent of assets seized, or the profit from their sale, are retained by law enforcement, with 5 percent going to the state. Equally worrying is the fact that there is virtually no requirement on government to report seized property in a transparent, accessible way.

Eminent domain in recent legislation

Eminent domain, next to the power of imprisonment, is the most serious power given to government. It may be a necessary one under tightly restricted circumstances, but it is no less dangerous. When the state can condemn your property, seize it, and give it to another, the reason for doing so must be strictly defined and utterly necessary – as is also the case with regulations on the Second Amendment.

During the 2016 session, a bill was introduced that would have allowed private pipeline companies to seize private land. That bill was changed to prohibit private companies seizing private land, but the General Assembly then passed a law establishing a committee to “study matters related to the presence of petroleum pipelines in South Carolina.” That law allows the committee to examine “whether other states permit petroleum pipeline companies to exercise eminent domain, and if so, under what circumstances.” The committee met recently to discuss the feasibility of pipeline companies using eminent domain, but the discussion focused on how other states permit this – not why it shouldn’t be permitted.

The past four years have seen an increasing number of similarly framed bills empowering the state to seize the property of private citizens in the name of rehabilitating run-down buildings, and then either repair or demolish the property. In these bills, typically, the owner of the property would be billed for the repairs or be forced to sell it. Gone in this legislation is any assumption that the owner of property has a right to it.

Civil asset forfeiture

Attempts to reform the state’s civil asset forfeiture laws have been consistently stopped.

In South Carolina, a citizen’s property can be held indefinitely by law enforcement agencies, even without a finding of probable cause. Legislation introduced in 2013 would have required law enforcement agencies to return confiscated property to its owner within 30 days absent a finding of probable cause. That bill died in the House Judiciary Committee.

In a similar approach, a bill introduced in 2015 would have reformed asset forfeiture laws by requiring a criminal conviction before property could be confiscated by law enforcement. The confiscation of property by law enforcement prior to a conviction prevents citizens from using their resources to defend themselves in court – an egregious infringement on property rights. This bill, similarly, died in the Senate Judiciary Committee.

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The dominant trend in recently years is away from property rights and toward greater state infringements on private property. In general, lawmakers engaging in debate on questions of property rights fail to ask some version of this question: Is there an overwhelming reason to allow the state greater power to seize private property? Or, to put it differently, is this erosion of property rights being undertaken because there is no other way to protect some other constitutionally protected right? If the answer is No, lawmakers have the duty to reject it.

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