The Volokh Conspiracy

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Property Owners' Lawsuit Against Seattle Over Its Toleration of the "CHOP" Takeover Can Go Forward

Plaintiffs allege that Seattle affirmatively supported the Capitol Hill Occupying Protest (rather than just declining to stop it).


From Hunters Capital LLC v. City of Seattle, decided Friday by Judge Thomas S. Zilly:

[1.] Procedural Due Process Violation—First Cause of Action

Plaintiffs plausibly allege that they had a protected property interest in the full use and enjoyment of their property and that the City's affirmative actions in support of CHOP caused Plaintiffs to suffer a temporary deprivation of those interests.

Specifically, Plaintiffs allege that from June 8 to July 1, 2020, CHOP participants used City-provided barriers, with the City's approval, to block access from their properties to streets, sidewalks, and other public rights-of-way. Many of the Plaintiffs also allege that because of CHOP's existence, and the rampant crime and vandalism that ensued, they were deprived of all (or nearly all) economic use of their properties. At least one Plaintiff alleges that CHOP participants physically invaded its premises by setting up, without permission, a "makeshift medical tent," to which the City provided beds and medical equipment.

Those allegations are sufficient to support Plaintiffs' claim that they were deprived of state-created property interests. See Guimont v. Clarke (Wash. 1993), abrogated on other grounds by Yim v. City of Seattle (Wash. 2019) (holding that "a regulation that compels a property owner to suffer a 'physical invasion' or 'occupation' of his or her property is compensable no matter how weighty the public purpose behind it or how minute the intrusion" and regardless of whether the invasion was "temporary or permanent"); Keiffer v. King County (Wash. 1977) (concluding "[t]he right of access of an abutting property owner to a public right-of-way is a property right" under the Washington State Constitution).

Plaintiffs further allege that "the City provided Plaintiffs with no notice or opportunity to be heard before or after depriving Plaintiffs of the freedom of movement, the right to access their properties, the right to use their properties, and the right to exclude others from their properties." "[I]n the absence of a sufficient countervailing justification for the" City's actions, the Court concludes that Plaintiffs plausibly asserted a procedural due process violation.

[2.] Substantive Due Process Violation—Second Cause of Action

… "[A]s a general matter, … a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."  There are, however, certain exceptions to this general rule[, f]or example … [if] (1) "[government] officers' affirmative actions created or exposed [plaintiff] to an actual, particularized danger that she would not otherwise have faced," (2) "the injury … suffered was foreseeable," and (3) "the officers were deliberately indifferent to the known danger." …

Plaintiffs plausibly allege that the City's actions—encouraging CHOP participants to wall off the area and agreeing to a "no response" zone within and near CHOP's borders—foreseeably placed Plaintiffs in a worse position than they would have been in absent any City intervention whatsoever. Their allegations are also sufficient to show that the City acted with deliberate indifference to that danger. See Hernandez v. City of San Jose (9th Cir. 2018) (allegations that officers "shepherded [plaintiffs] into a violent crowd of protestors and actively prevented them from reaching safety … even though [the officers] knew the mob had attacked" others earlier, were sufficient to state a substantive due process claim).

[3.] Unlawful Taking—Third Cause of Action

Under Washington law, "[t]he right of access of an abutting property owner to a public right-of-way is a property right which if taken or damaged for a public use requires compensation." …

Plaintiffs allege that from June 8 to July 1, 2020, the City allowed and encouraged CHOP participants to block access from Plaintiffs' properties to streets and other public rights-of-way, resulting in the deprivation of all or nearly all economic use of their properties. Those allegations support Plaintiffs' assertion that the City's policies and practices related to CHOP deprived them of protected property interests, albeit temporarily, without just compensation…. "[T]emporary takings are subject to the same categorical treatment as permanent takings where a regulation denies all use of the property." …

The Court acknowledges that judgments about where and to what degree the police should be deployed in these types of emergency situations are best left to the City. Under Plaintiffs' theory of the case, however, the City is not liable under § 1983 simply because its response to the creation of CHOP was "too little, too late," or because the City failed to prevent CHOP participants from physically invading their properties.

Rather, Plaintiffs plausibly assert that the City's endorsement of, and the provision of material support to, CHOP set in motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of protected property interests. These allegations support the claim that the City's conduct was "causally related to [the] private misconduct" and it was "sufficiently direct and substantial to require compensation under the Fifth Amendment."