The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.