The Volokh Conspiracy
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Qualified Immunity Meets the Takings Clause
A Sixth Circuit decision holds qualified immunity protects a state elevator inspector from being sued for taking a hotel's property.
The doctrine of qualified immunity is best known - and most notorious - for protecting police officers from being held liable even for many very egregious violations of citizens' rights. The issue came to public consciousness in the aftermath of the killing of George Floyd by Minnesota police officers in 2020. But qualified immunity also protects a wide range of other government officials. In Sterling Hotels v. McKay, a recent ruling by the US Court of Appeals for the Sixth Circuit, qualified immunity enabled a state elevator inspector to avoid Takings Clause liability for shutting down a hotel elevator for reasons not authorized by state law, as understood by the state's Elevator Safety Board. Here is an excerpt from the court's summary of the facts.
Sterling Hotels operated the Wyndham Gardens Hotel in Sterling Heights, Michigan….
On the morning of November 5, 2019, ThyssenKrupp tested the battery-lowering devices and found that they functioned as intended. Later that day, a state elevator inspector, Scott McKay, visited the Wyndham to verify that Sterling had brought the elevators into compliance. But McKay "failed" every elevator, purportedly on the ground that, in case of emergency, the elevators should have been programmed to descend to the hotel's basement—notwithstanding that it lacked an exit. Although the [Michigan Elevator Safety] Board never told Sterling to program his elevators to reach the basement, McKay sealed the elevators that same day. As a result, Sterling could no longer rent rooms on five of the Wyndham's six floors….
Sterling requested relief via email from the Board, unsuccessfully, and then brought this suit against McKay, asserting federal equal protection, takings, and due process claims…
In an opinion by Judge Raymond Kethledge, the Sixth Circuit ruled that qualified immunity protected McKay because there is no "clearly established law" saying that state officials could be held personally liable for Takings Clause violations:
Sterling next argues that McKay engaged in an unconstitutional regulatory taking when
he sealed the elevators. At the time of the alleged taking, however, no court in this circuit had yet decided whether an officer could be liable for a taking in his individual capacity—which is the capacity in which Sterling sued McKay here—and at least one case suggested the contrary. See Viceroy v. Walton, 730 F.2d 466, 467 (6th Cir. 1984) ("Plaintiff cites no case, and we can find none, that suggests that an individual may commit and be liable in damages for a 'taking' under the Fifth Amendment"). McKay's potential individual liability for a regulatory takings claim was not clearly established when he sealed the elevators. That means McKay is entitled to qualified immunity on this claim.
This whole situation may seem laughable, particularly McKay's conclusion that emergency exit procedures required the elevator to be able to reach the basement, even though there is no exit from there. But it was no laughing matter to the hotel chain, which probably lost a significant amount of money - or to travelers whose reservations had to be cancelled.
To my mind, it is entirely reasonable to expect a government official to understand that severely restricting property owners' use of their land without proper legal justification might result in a takings claim. Unlike some situations involving police officers, McKay didn't have to make a split-second decision in the heat of the moment. He could have taken time to check with his agency (and its counsel) about the relevant legal issues.
I'm far from certain that the hotel would have prevailed on the takings claim. While I think this kind of regulatory restriction should indeed be considered a taking (at least in situation where it doesn't meaningfully protect public safety, and therefore doesn't fall within the "police power" exception to takings liability), current Supreme Court takings precedent arguably doesn't go that far.
Because the restriction on property rights didn't involve a physical invasion of the owner's land, did not destroy 100% of the property's economic value, and wasn't necessarily a permanent constraint, McKay's order probably doesn't qualify as a "per se" (automatic taking). It would likely be subject to the vague and overly deferential Penn Central balancing test, under which it might well have been ruled not a taking. But the hotel should at least have been permitted to raise the takings issue.
I would add that the Vicory v. Walton, the 1984 case cited by the Sixth Circuit (it's Vicory, not "Viceroy," as Judge Kethledge mistakenly spelled it), isn't much of a precedent, because it was merely a denial of a petition for rehearing en banc. The ruling on the merits in that case does not address the Takings Clause, but does include a concurring opinion by Judge Bertelsman suggesting that officials can in fact be held liable for Takings Clause claims in some situations.
Whether they be cops, inspectors, or even state university professors (like the present author!), government officials should not be allowed to escape liability for constitutional violations by relying on the bogus, judicially invented doctrine of qualified immunity. On that point, see critiques of qualified immunity by leading legal scholars, such as Joanna Schwartz, and co-blogger Will Baude.
The Sixth Circuit ruling is a reminder that police are not the only state officials who can hide behind qualified immunity.
While the Sixth Circuit dismissed the takings claim based on QI, it denied McKay qualified immunity on the hotel's Due Process Clause claim. Here, there was enough "clearly established" precedent to overcome even the ridiculous requirements of QI doctrine. The due process issue has been remanded to the district court.
