Brothers Ben and Hank Brinkmann never had a chance when they decided to expand their chain of Long Island hardware stores to a fifth location on a commercial lot in Southold, N.Y.
Hostile to the Brinkmanns’ plans, town officials ensured their project failed. The town demanded tens of thousands of dollars for an impact study, interfered with real estate transaction closing, and passed a building permit moratorium affecting a small stretch of road near the Brinkmanns’ newly acquired land.
“No matter what we did, they were going to find one more roadblock to put in front of us,” Hank Brinkmann said.
After all other ploys failed, Southold took the land using eminent domain. The town’s problem was the Constitution. Under the Fifth Amendment, taking private property requires a “public use,” and stopping lawful entrepreneurship does not count.
To proceed, the town officials would have to lie.
This turned out to be easy. Officials simply declared a need for a public park at the precise spot occupied by the Brinkmanns. No land improvement would be necessary, the town declared. It could just relabel the empty field as a “passive-use park” without doing anything.
A person walking past would not see a difference. But the Brinkmanns would be gone.
Such abuses of eminent domain have gone unchecked for far too long. The brothers decided to fight back in court with representation from our public interest law firm, the Institute for Justice. The case raises questions with national implications: Can public officials invent pretextual reasons to justify using public power to take people’s land? Or are courts obligated to scrutinize those reasons when people allege unconstitutional conduct?
What happens in many cases is blind acceptance. Incurious judges defer to government officials without holding them accountable.
Judge Steven Menashi resisted this trend when the Brinkmann case reached the 2nd U.S. Circuit Court of Appeals. “In my view, the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause,” he wrote.
This should be obvious. Yet, Menashi provides the dissent, not the majority opinion, in a 2-1 decision for Southold on March 13. His colleagues took the town at its word and refused to look deeper.
“We conclude that when the taking is for a public purpose, courts do not inquire into alleged pretexts and motives,” the majority held.
Telling the truth would have derailed Southold’s scheme to stop the Brinkmanns. So, the town feigned compliance with the Fifth Amendment by inventing a “public use.” Menashi, at least, recognized the harm of rewarding dishonesty.
“(T)he court’s decision depends on the Town lying about its purpose,” he writes. “In this way, the court’s decision grants governments virtually unlimited power over private property — as long as the governments are willing to act in bad faith.”
The Brinkmanns will petition the Supreme Court to intervene and enforce the Fifth Amendment’s protections. While they wait, other examples of government duplicity abound.
Officers in East Cleveland, Ohio, showed up at the home of political activist William Fambrough and towed his van in 2022 for supposed parking violations. The reason for the police visit was not public safety. Fambrough’s actual “crime” was loud support for the mayor’s political rival.
Applying the 2nd Circuit’s logic, no court would need to consider the First Amendment — only the parking code and the government’s bare assertions — to avoid remedying the unconstitutional retaliation.
The lack of judicial engagement is not hypothetical for Sylvia Gonzalez, a former alderwoman in Castle Hills, Texas. Local officials jailed her on allegations of mishandling her citizen petition, a bogus charge that was later dismissed. But the real reason for her booking was criticizing city hall and participation in a grassroots movement to oust the city manager.
When reviewing her First Amendment lawsuit, the 5th U.S. Circuit Court of Appeals considered only whether city officials had probable cause for an arrest warrant — not whether they had targeted Gonzalez to silence her.
The Supreme Court heard her appeal on March 20, and a decision is pending. If the 5th Circuit opinion stands, officials bent on revenge could pore over the books looking for a crime — any crime — to pin on their enemies, even if the point is public humiliation with little hope of conviction.
Invoking fake parks and fake crimes to cover abuse must never stand. If officials lie, courts must not defer to them by default. Constitutional rights deserve absolute, not fake, protection.
Daryl James is a writer at the Institute for Justice in Arlington, Va. Arif Panju is a managing attorney at the Institute for Justice in Arlington, Va.
Reprinted with Permission from DC Journal – By Daryl James & Arif Panju
The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.