Property Rights

Rethinking the Seattle "CHOP" Takings Case

Property owners are suing the city for helping far-left activists seize control of their property during the period when it allowed the latter to rule an "autonomous zone" covering 16 blocks in the area.

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The Seattle "CHOP" zone. June 2020.

 

Throughout much of June 2020, far-left activists exercised control over a part of Seattle that came to be known as the "Capitol Hill Organized Protest Zone" (CHOP). City officials allowed the activists to control the 16-block area in the wake of clashes with police arising from protests triggered by the brutal killing of George Floyd by police officers in Minnesota. During the three week period of CHOP "autonomy" (which was finally ended when the mayor ordered police to clear the area on July 1), there was extensive violence and property damage in the area.

Property owners have sued the city, seeking compensation for the damage they suffered, and for temporary loss of access to their land and buildings. One of the claims they have made is a demand for compensation under the Takings Clause of the Fifth Amendment, and the equivalent provision in the Washington State Constitution. As co-blogger Eugene Volokh notes, a federal district court recently denied a motion to dismiss three of the claims made by the plaintiffs, including the takings claim.

When I initially heard about the takings claim in this case, I was very skeptical. But reading Judge Thomas Zilly's careful opinion has led me to reconsider. I'm not yet sure who deserves to prevail here. But the plaintiffs may have a much better case than I previously thought.

The reason for my initial skepticism was that the Takings Clause and similar provisions in state constitutions generally only require compensation for the seizure of property rights by the government. If, for example, the government takes your land to build a road or a military base  on it, the state must pay "just compensation" (usually the fair market value of the property taken). On the other hand, you generally cannot sue the government for a taking if your property was seized by private criminals acting on their own. Thus, if a (private) thief steals your car, there is no taking for which the government is liable. And that's still true even if the thief got away with it because the local police do a terrible job of deterring and apprehending auto theft. The thief himself may be liable (if you can find him!). But not the government.

On the other hand, the government can still be liable for a taking if they have somehow helped a private party gain control over your property. If, for example, the government delegates the power of eminent domain to a private firm, such as a railroad or a public utility, they are still required to pay compensation under the Takings Clause. The same is true if the government itself seizes the land for purpose of transferring it to a private party, as in the notorious 2005 Kelo case, where the Supreme Court ruled that the government can take private homes for purposes of transferring them to another private owner in order to promote "economic development." While the parties in that case disagreed over whether the taking was for a purpose that qualifies as a "public use" (as required by the Fifth Amendment), no one denied that a taking had occurred and that the government owed compensation to the owners, if the state's actions were constitutionally permissible at all.

The CHOP case falls somewhere in between the scenario where the state merely failed to prevent a purely private theft of property and one where it deliberately seizes privately owned land for purposes of transferring it to another private owner. No one suggests that the City of Seattle deliberately set out to help the CHOP activists seize private property. But the plaintiffs claim that the City's actions did knowingly facilitate the deprivation of their rights. As Judge Zill explains:

On June 8, 2020, with nationwide civil rights protests ongoing, the City "abruptly deserted" the Seattle Police Department's ("SPD") East Precinct, located on the corner of Twelfth Avenue and East Pine Street in Seattle's Capitol Hill neighborhood. First Amended Class Action Complaint ("FAC") at ¶ 3 (docket no. 9). Almost immediately after the SPD abandoned the East Precinct, protestors declared the area "Free Capitol Hill" to create a "no-cop" zone, and they used large barriers that the City left behind to block off streets within one block of the precinct. Id. at ¶¶ 36–38. As the zone expanded, it first became known as the "Capitol Hill Autonomous Zone," a.k.a. "CHAZ," and eventually became known as the "Capitol Hill Organized Protest" or "Capitol Hill Occupying Protest," a.k.a. "CHOP" (collectively, "CHOP"). Id.at ¶¶ 1, 38. CHOP's unofficial boundaries stretched north to East Denny Way, east to Thirteenth Avenue, south to East Pike Street, and west to Broadway Avenue, encompassing Cal Anderson Park and 16 city blocks in all. Id. at ¶ 39. CHOP participants claimed the area as their own, which was allegedly governed by a "loose form of governance and justice" and which they secured by physically barricading and patrolling the area's borders….

According to Plaintiffs, the City "entirely handed over" the approximately 7-acre Cal Anderson Park to the CHOP participants. Id. at ¶ 49. The City also allegedly provided CHOP participants with medical equipment, washing/sanitation facilities, portable toilets, nighttime lighting, and other material support. Id. at ¶¶ 49, 179–180. The City further allowed CHOP participants to build makeshift gardens in the park "to grow food for CHOP," id. at ¶ 52, with the Mayor tweeting her support for the "new community garden popping up in Cal Anderson Park," id. at ¶ 182(g). Plaintiffs allege that members of the public could not use the park, and if they got too close, CHOP participants threatened them or their property….

As a result of the City's alleged actions, the park "was transformed into a massive tent city for CHOP participants,…"

Plaintiffs allege that the City "adopted a policy supporting the CHOP occupation, acting with deliberate indifference toward those suffering harms from it." Id. at ¶ 174. Plaintiffs also allege that because of the City-provided barriers that CHOP participants used in the streets and sidewalks, local residents could not use public streets, sidewalks,or other rights-of-way to enter their homes or businesses, they could not receive deliveries, and their clients were unable to visit their businesses. Id. at ¶¶ 70–71, 74. Plaintiffs allege that garbage and recycling services could not enter CHOP, forcing them to pile up their refuse. Id. at ¶ 73. In addition, Plaintiffs allege that they did not have "full use" of their property that was normally freely accessible, including their garages, in order to prevent vandalism to their properties. Id. at ¶ 72. Plaintiffs also allege that CHOP participants painted graffiti on most available surfaces in the area. Id. at ¶ 43. If a property owner painted over the graffiti, CHOP participants allegedly replaced the graffiti or threatened business owners if they painted over the graffiti.

Here is Judge Zills' summary of the relevant takings doctrine:

The Takings Clause, which applies to local governments through the Fourteenth Amendment, provides: "[N]or shall private property be taken for public use, without just compensation." U.S. Const. amend. V… To establish a violation of the Takings Clause, a plaintiff must show that "'an independent source such as state law' . . . define[s] the range of interests that qualify for protection as 'property' under the Fifth and Fourteenth Amendments…."

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…."  Washington courts generally distinguish between an unlawful taking, which "is a permanent (or recurring) invasion of private property," and a "temporary interference with a private property right, which is not continuous nor likely to be reoccurring," N. Pac. Ry. Co. v. Sunnyside Valley Irrigation Dist., 85 Wn.2d 920, 924, 540 P.2d 1387 (1975) (citations omitted). This distinction loses force, however, where the government "compels a property owner to suffer a 'physical invasion' or 'occupation' of his or her property."Guimont, 121 Wn.2d at 597–98 & n.3….

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, FAC at ¶¶ 70, 177, 211–13, resulting in the deprivation of all or nearly all economic use of their properties, id. at ¶¶ 97, 101, 109, 113–14, 118. 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….

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 the 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," id. at 1255, 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. FAC at ¶¶ 174, 182, 212–13. 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." YMCA, 395 U.S. at 93.

As I see it, the key question here is whether the City's actions were closely enough connected to the CHOP activists' violations of the owners' property rights to be considered as assistance "sufficiently direct and substantial" enough to qualify as a taking.

Given the scale of the city's alleged assistance to the private occupiers, I tentatively think the answer is yes. The city authorities apparently provided extensive aid to the CHOP activists both by giving the material assistance, and by allowing them to use city property. And it was foreseeable they would use these resources to violate local landowners' property rights.

However, I hasten to add that this is a fairly murky area of takings jurisprudence, and I'm not aware of another case with closely analogous facts. It isn't easy to figure out where to draw the line between essentially private violations of property rights, and those that are sufficiently facilitated by the government to qualify as takings. As this case makes its way through the legal system, it could potentially set an important precedent on that issue.

In addition, it is important to remember that the summary of the facts quoted above is that provided by the plaintiffs. When defendants file a motion to dismiss a case, the court must view the facts in the light most favorable to the plaintiffs, to see if there is any possible basis for allowing their case to proceed. But Seattle undoubtedly has their own version of events, which may well differ on key points from that of plaintiffs. They will get a chance to present that version as the case moves forward.

In the meantime, as Robert Thomas points out at the Inverse Condemnation blog, "this is a good opinion to read and a case to watch."

If the plaintiffs' account of events is largely accurate, it reveals terrible behavior by city officials (as well as the by CHOP activists). That is deeply troubling even if the city cannot be held legally liable under the Takings Clause.

Perhaps it should not be necessary to say this. But I also want to emphasize that recognizing the City's bad behavior in this case is entirely compatible with recognizing that police abuse and racial profiling are also serious problems. I have previously written on  a variety of reforms that we can adopt to curb both police abuse of civilians generally, and racial profiling specifically. People of all races are entitled to have law enforcement protect their lives and property against criminals, while also holding police officers accountable for their own abuses and violations of constitutional rights. And the government should neither violate those rights itself, nor—as apparently happened in this case—help private parties do so.

NEXT: ACB on RAP

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  1. The City also allegedly provided CHOP participants with medical equipment, washing/sanitation facilities, portable toilets, nighttime lighting, and other material support.

    Why is that a list of material supports, instead of a list of mitigation of harms?

    1. Because without the material support, the po’ “only black lives madda” rioters would have left earlier.

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    2. Why is that a list of material supports, instead of a list of mitigation of harms?

      Because the items described are materials provided in support of the CHOP occupation. Are you asserting that the occupiers were there through no fault of their own?

      1. He’s asserting that woke people have the duty to seize control of racist property, because property is a racist concept and all things belong to The Woke People, and the city was merely doing its duty in assisting The Woke People.

    3. Medical equipment, I agree, is not a big deal. The city could in theory provide that for anyone who needs it. And nighttime lighting? The streets should be lit anyway.

      But the toilets and sanitation facilities strike me as very different. That’s basically explicitly saying “you are welcome to stay out here”. And that’s material support.

      1. I’m very sympathetic to the local residents and property owners, but the argument for the City is probably something along the lines of “given that we thought a military style response would do more harm than good, providing toilets was a reasonable alternative to having people poop on the street.”

        I’m not sure what the public health risks are of a tent city inside Seattle with no sanitation, but assuming there are some, the City is likely to argue it was trying its best to avoid greater harm to the protestors and property owners alike.

        1. The problem with that argument is that a military response was not necessary. When the city had had enough, the police department closed the whole thing down in a matter of hours with very little use of force and only a few arrests.

          What you describe would make sense if it were a hostage situation or CHOP was heavily armed and evicting them would create a bloodbath. But that is clearly not true. Not only did the city never ask the state or the feds for help, indicating they didn’t think they were unable to control the situation, but also, they end the whole thing very easily and could have at any time. They just chose not to because they supported it and wanted it to happen.

          1. That’s the question, and you might well be right.

            There’s something to be said for giving these situations some time, though, to let the lawbreakers get tired. That’s what we did with the Freemen (who granted, were on their own land), and arguably what Seattle did with CHOP/CHAZ.

            I tend to think you’re right, and that if Seattle had picked a good time to clear the area, like between 5 and 8 in the morning, they could have done it, but I don’t know for sure, and I assume the city will argue that their decision was within reason based on what they knew at the time.

            On the other hand, if the government tears down a bunch of houses to make a fire break and stop a wild fire, that’s still a taking, I think. It may be a *justified* taking, but I think the government still needs to pay. Maybe that’s the best case for the city here.

    4. Because unfortunately, there is earlier precedent that holds that government entities don’t have a duty to protect you or your property. So the plaintiffs have to show active support by the city to have a case against the city.

      We badly need that earlier precedent to be overturned, even if it requires constitutional change. Because so long as it stands, BLM and Antifa are going to continue turning all of our major cities into war zones like Beirut. Civilization is more important than thug lives.

      1. Yeah, that precedent is never going to be overturned, at least not in practice.

        Imagine this scenario… Three cops are arresting a man, and one decided to just wail on him, above and beyond what is needed to subdue him. The other two cops, in a world where they are obligated to intervene if they witness a crime, are now criminally responsible if they don’t stop the first cop.

        In what world do you think that is going to happen? Until cops are willing to stop cops from committing crimes (which they have demonstrated for decades they are not), any standard that demands cops intervene in crimes is DOA.

        1. In the hypothetical there is an interest for the 2 other cops to act precisely because the current standard has been changed. As it is now, the 2 cops have no incentive to act and stop the 3rd cop but do have reasons to do nothing. In the first, hypothetical, scenario they still are disincentivised (sp? Even a word? Should be if not…) against acting but now have to weigh than against the possibility of direct liability against themselves and not just against “the blue”.

  2. Floyd died of a drug overdose. He had 2x lethal levels of fentanyl in his blood. Labored breathing, which he complained of PRIOR to his takedown for resisting arrest, is a symptom of fentanyl overdose. The ME put down “cops kneeling on his neck” for political, not medical, reasons.

    1. You are a complete waste of a human being for even mentioning “resisting arrest” about a guy who was executed by a cop whose knee was on his neck for eight minutes.

      In no scenario was there any meaningful “resistance” there. When force is grossly excessive (as it clearly was here), only the worst defenders of authoritarian law enforcement trot out the “resisting arrest” BS.

      1. a guy who was executed by a cop

        There is evidence that what the cop did aggravated Floyd’s condition, but saying he “executed” Floyd is hyperbolic bullshit.

        In no scenario was there any meaningful “resistance” there.

        Well, except the one where he was actively resisting being put into the back of the PD vehicle during his arrest.

        https://www.youtube.com/watch?v=mdk6Wc_ymj8

      2. Show me the proof he was ‘executed’? You cannot immediately jump to 1 conclusion about the cause of death based on the video regardless of how you try to twist it.

        1. Yes I can. That video was conclusive.

          If you want to rush to defend what you saw on that video, that by itself indicates evil external motives on your part- racism or authoritarianism.

          1. That cop may not have executed him in the traditional sense of a bullet to the back of the head, but he was utterly unconcerned that he was kneeling on a dead man. I don’t know if that is “depraved” in the legal sense, but it qualifies in my book. Just did not give a shit. Deserves to rot in prison.

            1. charge him with abusing a corpse then.

          2. No you can’t. If you see a guy being restrained by the neck and then later you find out that he also had a toxic cocktail of drugs in his system there is no law of physics saying you must rule out the 2nd possibility and that the first killed him with 100% certainty. Its possible its the first but its not without a reasonable doubt. There are ways I can put my knee on your neck for hours and not have you die. In fact neck restraints were an established technique. If you have any rational argument to this other than simply repeating its certain he died from the neck restraint like a deranged cultist than don’t be shy.

          3. Yes I can. That video was conclusive.

            Yeah, never mind what the autopsy found. You saw a video.

            You sound like Sarcastr0 with his, “I didn’t see the movie, but I know more about it than people who did see it because I read the synopsis” idiocy.

          4. Dilan ‘s comment – “Yes I can. That video was conclusive.”

            Would that be the officer’s body cam video’s showing him resisting arrest for 10-15 minutes?

            1. Stop it. You are either being authoritarian or racist.

              The punishment for refusing the commands of a police officer (racists and authoritarians love to say “resisting arrest”, like he was punching and kicking or something, but we are NOT talking about that) is not an 8 minute torture-death penalty.

              And the video shows that’s what the cops did. Whatever Floyd did before DOESN’T MATTER except to the worst sorts of scum who just get a thrill when the cops kill a black man.

              1. Dilan – watch the police officer’s body cam videos before you continue to embarrass yourself further.

              2. “Watching a video of a guy tweaking out and resisting arrest is racist.”

    2. “his takedown for resisting arrest”

      Three cops encounter an unconscious man.

      Cop A grabs the man’s right arm and starts pulling on it while yelling “Stop resisting!”.

      Cop B grabs the man’s left arm and starts pulling on it while yelling “Stop resisting!”.

      Cop C yells “See, he’s resisting!” and kicks the man in the head.

      Resisting arrest my aunt Annie’s ass.

      1. Floyd clearly was NOT unconscious when the police encountered him, so, who are you talking about?

      2. Three cops encounter an unconscious man.

        Cop A grabs the man’s right arm and starts pulling on it while yelling “Stop resisting!”.

        Cop B grabs the man’s left arm and starts pulling on it while yelling “Stop resisting!”.

        Cop C yells “See, he’s resisting!” and kicks the man in the head.

        Uh…in what Hollywood fantasy movie was this a scene from? It sure as hell doesn’t match ANY accounts of the Floyd arrest.

      3. There was additional footage released later on showing the leadup to the arrest. Its understandable that you might not have heard of it given the lack of coverage.

    3. The autopsy didn’t even really put that down. If you read the actual autopsy its listed as cardiac arrest with a ‘complicating factor’. Which basically translates as ‘covering my ass’

    4. He died from the cop kneeling on his neck, and two autopsies agreed on that. Whether he would have died two seconds later from drugs, or 80 years later from old age, is irrelevant.

      1. which two autopsies? There was an official one which I just described that didn’t do what you are implying and then another one by doctors for Floyd’s family where they ‘autopsied’ him through video footage.

        1. Total of 2 autopsies plus the hustler’s imitation autopsy
          1) the Hennepin county ME autopsy – which showed zero trauma
          2) the autopsy done by the Dover Air force base ME at the request of the DOJ. this was a review of the Hennepin County autopsy. While it agreed with the conclusion of “homicide” , it likewise found zero trauma and unlike the Hennepin county autopsy, the report included the toxicology report.

          Both autopsies showed zero trauma, and ignored the fatal level of drugs in the system. Neither ME will enjoy their time on cross exam. Unlikely either ME will be called as experts in future cases.

      2. He died from the cop kneeling on his neck, and two autopsies agreed on that.

        Do you manufacture your own bullshit, or are you just regurgitating someone else’s?

      3. ‘A’s comment – “He died from the cop kneeling on his neck, and two autopsies agreed on that.”

        Both autopsies showed zero trauma to the neck.
        Both autopsies showed no capillary damage indicating aphixiation.

        the video shows the knee on the neck to be in the 4o’clock position on the neck. The air passage is on the front of the neck 12 o’clock position and the catorid and jugular veins are in the 2’oclock position on the neck.

        The conclusion of homicide is poorly supported by the video and the details in the actual autopsy report and the actual toxicology report.

        1. typo –

          Both autopsies showed no capillary damage indicating zero aphixiation.

    5. The most likely scenario based on the evidence is after the altercation Floyd died primarily due to the drugs with a possible contributing factor of the stress a normally nonlethal restraint (there was no physical evidence of suffocation from the autopsy). Chauvin (who I doubt hopped out of bed looking to kill anyone) panicked and froze on the corpse no knowing what to do. And the rest is herstory.

  3. The plaintiff’s version of events seems to be generally consistent with news accounts I read at the time.

  4. Plaintiffs allege that members of the public could not use the park, and if they got too close, CHOP participants threatened them or their property….

    As a result of the City’s alleged actions, the park “was transformed into a massive tent city for CHOP participants,…”

    CHOP sympathizers are not members of the public? Is their Constitutionally-protected assembly in a public space a use subordinate to all others? And what is wrong with tent cities in public parks for demonstrators? Are the parks to be open to everyone except demonstrators?

    Threats, of course, are crimes, but is there alleged city support for crimes? Undoubtedly we will hear those allegations. Let’s find out if they go farther than, “There were crimes, and the city did not prevent them.”

    Also, I have seen many demonstrations, and some riots. I never saw any situation where bystanders were categorically excluded from areas where participants were active. Not even as a white person wandering through burning blocks in DC, after the Martin Luther King assassination. I doubt any categorical exclusion of the public happened in Seattle. If it did happen, proof the city participated actively and arbitrarily will be needed.

    How did the people behind the barriers get there? Is it alleged that a would-be CHOP supporter couldn’t get in? Or that a person evincing indifference couldn’t get in?

    As a matter of public order, is there good reason a person demonstrating open hostility to demonstrators should have been allowed to go in? Should hostile people carrying arms have been allowed in?

    Once again, answers to those questions may have to account for instances of crime, but is the right to demonstrate to be conditioned—as a matter of policy—on assurance of no criminal conduct among hundreds, or thousands, or tens of thousands, of demonstrators? On that condition, there would be nothing left of the right of assembly.

    1. Of course CHOP sympathizers are members of the public. That doesn’t mean they can close the park to OTHER members of the public, and enforce the closure by threats of violence.

      This wasn’t a demonstration or a riot, it was something we really hadn’t previously seen in the US: A criminal gang literally taking over part of a city and displacing that city’s government, bizarrely, with the approval of that city government. CHOP were acting as though they were a government, enforcing laws of their own creation, levying taxes. Maybe it could be construed to be an insurrection.

      “As a matter of public order, is there good reason a person demonstrating open hostility to demonstrators should have been allowed to go in?”

      Oh, you’re saying one side in a controversy can exclude the other side from a public place?

    2. Is their Constitutionally-protected assembly in a public space a use subordinate to all others?

      There’s no constitutional right to camp out on the streets at night as a protest. See Clark v. Community for Creative Non-Violence. And you will notice that the camp is not there now, because the police cleared it and there weren’t any court injunctions requiring the City to let it spring back up.

      And what is wrong with tent cities in public parks for demonstrators?

      Even if Seattle makes the discretionary decision to allow a protest camp (a decision it is not required to make under the First Amendment), that doesn’t settle the issue of whether it might be liable for damages to private property that result from that decision.

      Are the parks to be open to everyone except demonstrators?

      The parks are open to demonstrators who are awake and demonstrating. When they want to go to sleep, the City is not required to permit them to stay in the park.

      Also, I have seen many demonstrations, and some riots. I never saw any situation where bystanders were categorically excluded from areas where participants were active.

      Really? In really contentious situations where there are protests and counter-protests (such as in front of abortion clinics, or at political conventions), it is bog standard for police to try and separate the demonstrators from each other and from the public. Indeed, one of the reasons we got the tragedy of Charlottesville is this wasn’t done there.

      I doubt any categorical exclusion of the public happened in Seattle.

      What happened, to my understanding, is that the demonstrators themselves assumed control and decided who could or could not come into the protest zone.

      As a matter of public order, is there good reason a person demonstrating open hostility to demonstrators should have been allowed to go in?

      As a matter of public order, it shouldn’t have gotten to that point. Instead, there should have been protests up until a curfew, at which point protesters would disburse. If counter-protesters showed up, they should have been separated from the protesters and also allowed to demonstrate until the curfew. Nobody should have been allowed to camp overnight (or if camping was to occur, it should have occurred in a designated site such as a park with controlled access), and ingress and egress to the protest areas should never have been controlled by protesters.

      Having said all that, I don’t know how this case should come out.

      1. “Indeed, one of the reasons we got the tragedy of Charlottesville is this wasn’t done there.”

        That’s a little passive. What actually happened is that the police forced the two sides together.

        Charlottesville had been forced by a court ruling to provide the parade permit, and were apparently attempting to manufacture a basis for revoking it.

    3. As a matter of public order, is there good reason a person demonstrating open hostility to demonstrators should have been allowed to go in? Should hostile people carrying arms have been allowed in?

      Allowed? Under color of what authority, exactly, did CHOP vigilantes decide what was allowed?

    4. The posture of the case is a motion to dismiss. In evaluating a motion to dismiss, the court mist accept well-pled facts as true. The time to determine whether they are actually true or not comes later in the proceeding.

      So this seems to be a correct decision. The plaintiffs alleged thst the Coty’s behavior towards the plaintiffs amounted to direct support.

      Let’s look at the extreme case. A white supremacist mob occupies the city and, over the course of several days, rounds up various black people, beats some, and and hangs others in the park trees, creating the proverbial strange fruit. Let’s further suppose that City officiials provide exactly the same support that they did in this case — not aactively joining, on the one hand, but providing food, medicine, toilets, and various articles to make the “protesters’” lives easier, and also giving periodic expressions of solidarity. Would you argue with the same force you’ve been arguing here that, in that case, the white-supremacist “protesters” are just members of the public, there is no state action, and the City has no liability? I would suspect not.

      What’s sauce for the goose has to be sauce for the gander. The law has to be the same whether you agree with the protesters or not.

      I think a lot depends on whether the rioting and looting could be characterized as a few isolated acts, in which case the City’s conduct could be described as supporting the protests, not the riots (and covered by Clebonre Hardware) or whether at some point rioting became the purpose and part of the organization of the protests, so the City’s conduct could be described as facilitating the rioting. It’s a fact question to be determined by the finder of fact. I doubt the facts in this case will be so one-sided as to support a summary judgment and avoid a trial.

      1. Let’s look at the extreme case.

        Okay. Most Sundowner Towns got away with it, and very few lynchers have ever been prosecuted. And in case you forgot, one of the main reasons for the protests is that people are perceiving the government as doing exactly that: letting armed thugs kill black people with no justification or consequence.

        Broadly speaking, you are not entitled to government protection from criminal activity. If you want a government that will protect you and your interests from criminal activity, then your options for recourse are political ones (that is, work to get a government that *wants* to protect you and your interests), not legal ones (that is, get the courts to say that the government *must* protect you and your interests).

    5. Lanthrop’s comment – “On that condition, there would be nothing left of the right of assembly.”

      You left out the word “peacably”

      1A “…or the right of the people peaceably to assemble,…”

    6. The thugs’ use of the space was not peaceable, and was against property rights, so it was not constitutionally protected.

  5. Weren’t there multiple lawsuits filed for around Occupy Wall Street and its various similar events? In many cases, enforcement was delayed for weeks, surely affecting adjacent or included private properties.

  6. The two main allegations (from OP at least) are: (1) City also allegedly provided CHOP participants with medical equipment, washing/sanitation facilities, portable toilets, nighttime lighting, and other material support; (2) City further allowed CHOP participants to build makeshift gardens in the park. Maybe (1) should avoid 12(b)(6), but (2) is just more “City allowed” stuff.

    The plaintiffs’ use of “deliberate indifference” cuts against their other claims.

    1. What’s the difference between “city allowed” and “city authorized”?

      I can’t imagine that New London could have avoided the takings clause by saying, “Hey Pfizer, it’s cool. Go ahead and bulldoze the houses and build your facility there.”

      1. “What’s the difference between “city allowed” and “city authorized”?”

        That’s the salient difference between the City’s liability for failing to act (none) and the City’s liability for acting.

        “I can’t imagine that New London could have avoided the takings clause by saying, “Hey Pfizer, it’s cool. Go ahead and bulldoze the houses and build your facility there.””

        I can. If the City of New London had not initiated condemnation proceedings against Kelo’s property, but had merely sat by while Pfizer did something to Kelo’s property, I don’t think Kelo would have had a takings case against the City. (I think Kelo would have had plenty of remedies against Pfizer.) That would be true even if the City’s mayor said “I really think the City’s development would be improved if Pfizer rather than Kelo had that land.”

        1. Can you elaborate on the principle at work here, or its limits?

          Suppose the mayor calls a news conference and says “Hey, a little heads up for all you burglars out there … I have instructed the police department not to answer any calls from NToJ’s address, and the prosecutor has agreed not to prosecute anyone for anything that happens there … kinda like a one-house ‘The Purge’, if y’all get my drift. Have fun everyone!”

          Your have no claim against the city?

          How is it different from finding out that the mayor instructed the motor pool to save money by running bald tires, and that causes an accident? Isn’t the city liable for the reasonably forseeable consequences of that decision? How is the ‘NToJ mini-Purge’ or CHAZ different?

          (asking, not arguing)

      2. I have a driver’s license that authorizes me to drive my car or motorcycle on city streets: the “city authorized”.

        I do not have a license, and local law strictly limits my legal right to drive an ATV on city streets, but as long as I’m not obstructing traffic, the sheriff and local police don’t give a shit: the “city allowed”.

        And we already have SCOTUS precedent that police do not have to respond to crimes, whether they’re happening in front of the police, called in, or what. They are entirely free of (legal) wrongdoing if they say “nah, I don’t feel like handling that.” So I’m not sure why you think New London would have been in trouble if they’d said “oh, someone is bulldozing your house? Hrm. Shame. Let us know how that works out. We might prosecute them later. Might not. We’ll see how we feel.”

        1. What happens, though, if the City provides port-a-potties, lighting, and medical equipment for the construction workers, and barricades the neighborhoods to keep the neighbors out of their neighborhoods while Pfitzer bulldozes the buildings, and lets the construction workers keep the bulldozers in the City park nearby?

  7. “No one suggests that the City of Seattle deliberately set out to help the CHOP activists seize private property.”

    Well, I do.

    So much so that in addition to the takings issue, I would initiate criminal proceedings against the city council as individuals engaged in a conspiracy to violate the civil rights off all property owners in the “zone”. And, oh by the way, in federal court to get around the conspirator in the prosecutor’s office.

    1. The mayor was ambivalent until protesters showed up at her house. One city councilperson participated actively in rioting, and used her keys to let rioters into City Hall. A recall effort against her is under way*. Due to incompetence and infighting, “City of Seattle” was incapable of acting with a single purpose, but your point is well taken.
      *Imagine being too extreme-left for Seattle!

      1. Ambivalent? That dumb bitch was calling it a “block party” and “the summer of love.”

        If the speds hadn’t tried to set up shop in front of her house, they’d probably still be there.

  8. 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.” YMCA, 395 U.S. at 93.

    See that, “[the]” in there. Is that something the judge put in? If so, it kind of transforms a plaintiff’s allegation into something pretty close to judicial prejudice against the right of assembly.

    1. Here’s a hint. “peaceful protest” does NOT include: trespassing in closed public parks, marching thru neighborhoods banging drums and shining light on homes at 2 am, burning, looting, rioting, etc. If you think you can sustain the 21st century “kultural revolution” a la Maoist tactics, pretty soon people are going to start objecting with 62 gr. flying missles. Especially when politicians tell the police the need to “stand down”.

    2. See that, “[the]” in there. Is that something the judge put in? If so, it kind of transforms a plaintiff’s allegation into something pretty close to judicial prejudice against the right of assembly.

      The city filed a motion to dismiss under FRCP 12(b)(6), arguing that the facts pled by the plaintiff, even if true, failed to state a claim upon which relief could be granted. The judge thus must treat the facts alleged in the complaint as true for the sake of deciding the motion. It’s not a comment on whether they actually are true.

      1. Can’t wait for discovery because I am sure there are great little tidbits out there…

        1. Email among city leaders is going to be fascinating. The steps they take to avoid that will be even more incriminating. The coverup is always worse.

    3. If so, it kind of transforms a plaintiff’s allegation into something pretty close to judicial prejudice against the right of assembly.

      Again, there is literally no constitutional right whatsoever to camp out in public spaces. There’s binding and controlling Supreme Court authority on that point.

      So any judicial conclusion should flow from the starting point that at least the overnight activities at the campsite were unlawful assemblies.

      1. Dilan, as a legal argument, that reads like:

        1.
        2.

        4.

        Where is 3, the law which was broken? And is night occupancy within the power of the city to allow?

        1. Stephen:

          Do you seriously think there are no laws against camping out on the street or unlawful assemblies in Seattle?

          Night occupancy is definitely within the power of the city to allow. But it is not a First Amendment issue; it’s an issue of the City, as a matter of grace, allowing it. And it’s potentially subject to Takings Clause analysis as well.

    4. I would assume the “the” was added to refer to the private misconduct alleged in the complaint. I think that fairly characterizes the plaintiff’s allegations. I don’t see how adding this clarification suggests any kind of prejudice one way or the other.

      1. Yeah… the “the” simply specifies that the issues at hand are referring to THESE specific examples of misconduct, not simply some ethereal idea of misconduct such as that which is referred to in the law in general.

        That’s how I read it.

  9. Seems pretty clear the city helped the “Protest Zone” exist

    “Seattle Department of Transportation (SDOT) crews installed concrete barriers wrapped in plywood in several areas of the zone along Pine Street, 10th Ave., and 12th Ave., The design (concrete with added plywood) offered space for decoration by artists affiliated with the protests.[38] The new layout was posted on Mayor Durkan’s blog, which explained: “The City is committed to maintaining space for community to come to together, protest and exercise their first amendment rights. ”

    Whaaat? The City installed barricades for the protestors? And committed to supporting them?

  10. triggered by the brutal killing of George Floyd by police officers in Minnesota

    Shouldn’t someone with lawyerly credentials refrain from asserting facts that have not been proven? What we know if Floyd died in police custody. What we don’t know is how he died or that he was brutally killed by officers. We have a number of potential causes. Was the knee on the neck proximate? The ME’s statements about trauma to the neck suggests no. More likely the introduction of Fentanyl into the body was the proximate cause. The knee on the neck, while visually disturbing, may not have exacerbated the situation at all. However, making incendiary comments about an ambiguous event does exacerbate anger and division.

    1. The evidence seem to suggest that Floyd did a good job of committing suicide by taking a bunch of drugs all at once. Had the police shown up 15 minutes later he probably would have been dead.

      1. Irrelevant what could have happened had not the cop killed Floyd by kneeling on his neck.

        1. Not even one of the many autopsies concluded the restraint method was the sole cause of death. Try again…

        2. Just as a Devil’s Advocate here… not really taking a position because I’m still unsure how I feel about it.

          BUT…

          Had the cops shown up 15 min later, Floyd may have died. This does not absolve the cops necessarily. Had Floyd not taken the drugs, he may have survived the encounter with the cops, this does seem to indicate some level of mitigation against the cops being the proximate cause. It seems that the worst one can say about the cops is that their actions, while on their own and in a different context, would have not caused any issues but given the particulars of Floyd, these actions exacerbated a situation that a) Floyd created himself absent any cops and b)the cops had no way of knowing about.

          The indifference they show is still problematic, regardless. But that is a far cry from being the cause of death.

    2. Shouldn’t someone with lawyerly credentials refrain from asserting facts that have not been proven?

      What do you mean “proven”? If you mean we have to wait for a jury to come back before we say the truth about what those cops did, the answer is no.

      The video proves that the cops brutally killed George Floyd. Other than the lawyers for the cops, who are doing their jobs, anyone saying otherwise is either an authoritarian jerk or a racist jerk, or both. If you look at that video and say “George Floyd was justifiably killed”, seriously, you need professional help.

      1. The video shows that he died in their custody, while they were undertaking actions that might have been contributory, or might have simply been redundant, depending on the extent Floyd’s numerous underlying conditions and intoxication were responsible for the death. If you’re going to say somebody was “brutally” killed, I’m going to expect a beating, not a restraint hold 99% of the population would experience as merely mildly unpleasant. (I’ve been through far worse holds in high school wrestling, and never thought I was being brutalized.)

        1. It may have even been a restraint in an attempt to save his life. I have seen video training on “excited delirium”, a condition that can be fatal, and one of the tricky aspects of dealing with someone who has this condition is restraining them in such a way that they don’t hurt themselves or others.

          Letting them rant and rave isn’t necessarily an option, either — the mere condition of being overly excited can lead to death, even if no one is attempting to restrain them.

      2. The video proves that the cops brutally killed George Floyd. Other than the lawyers for the cops, who are doing their jobs, anyone saying otherwise is either an authoritarian jerk or a racist jerk, or both.

        Or…someone who isn’t blind, and who can read a fucking coroner’s report.

  11. There is more than enough here to charge many city and state officials with conspiracy to deny civil rights. This was no an issue of selective enforcement of scarce law enforcement resources as people like Sarcastro would like to lead us to believe in complete bad faith. This is a whole sale denial of civil rights to law abiding, tax paying, citizens who should be able to enjoy their property and freedom to travel without having lawless thugs run their neighborhood with the implicit endorsement of the local and state government.

  12. Professor Somin, when you get right down to it, this case brings out a great question. What does a citizen do when government abdicates their responsibility to it’s citizens?

    In this instance, citizens are sueing to force the Seattle city government to be accountable for their (in)action. The alternative here is that citizens start taking matters into their own hands, and I really don’t think we want that.

    Let’s recall…in CHOP, petty and violent crime frequently happened. Property destruction, rape, robbery, assault & battery, just to name a few. The government has a duty and responsibility to protect life, liberty and property. Seattle singularly failed in all three.

    I am glad to see you rethink this case. You should.

    1. The government has a duty and responsibility to protect life, liberty and property.

      Perhaps in a moral or ethical sense, but police won their cases, so not in a legal sense.

  13. typo –

    Both autopsies showed no capillary damage indicating zero aphixiation.

  14. It’s long been estabilshed that
    (1) you are not entitled to police protection
    (2) police are not expected to stop crimes in progress
    (3) that police are not obligated to respond to calls for help (made through 911 or other sources)

    Hell, for that matter
    (4) police can not be expected to know the law (and precedent) in their jurisdiction
    (5) police can not be held responsible for rights violation unless there is a near perfect applicable precedent

    So I’m not sure where the legal argument is that the City did anything wrong by not dealing with the situation earlier. Precedent is on their side: police are entirely off the hook for sitting on the sidelines saying “that’s neat. someone should probably do something about this.”

    Or, to put it in other words… unless police reforms obligate police to actually respond to crimes in progress, and to be liable for civil damages if they do not, this seems pretty bunk to me.

    1. Abiding by those horrible rules doesn’t mean that the city did no wrong, only that no court has had the guts to hold a city to its moral duty.

      1. That police and city governments are doing morally wrong but legally permitted things is one of the things being protested.

        So… yes. Very much so. And that’s part of the problem. In defense of police, the courts have freed them from almost all responsibility and liability, and stripped citizens of most forms of recourse.

    2. Right.

      But “the police didn’t stop them” isn’t the argument set down by plaintiffs.

      Their argument is that the city actively aided the rioters in their endeavors by providing them with material support such as medical help/supplies, sanitation, lighting, etc.

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