Eager to spark the socialist revolution, left-wing activists seized Ramsett Park and the surrounding area and declared an independent autonomous community dedicated to social and economic justice. The activists threw up barricades and excluded both the police and the “bourgeoisie” owners of businesses surrounding the park. Fearing a primary challenge, Mayor Gunderson ordered the police to withdraw from the area except for life-or-death situations. As days turned into weeks, the area reverted to a Hobbesian state, with violence increasing and refuge accumulating in the street. Mayor Gunderson belatedly ordered the area cleared. When the business owners returned, they found their buildings vandalized and their property stolen or destroyed. They look to hold someone responsible. But the activists have disappeared, and, in any event, hippies are notoriously judgment proof. Can Mayor Gunderson and the City be held liable for not enforcing the law?
While that hypothetical may have appeared bizarre and improbable last year, a strikingly similar situation occurred in Seattle in June, as activists seized control of a sixteen-block area that came to be known as the Capitol Hill Organized Protest (“CHOP”) Zone. Seattle did not order the police to clear the area for three weeks, during which there was extensive violence and property damage. At the end of June, local businesses and property owners in the CHOP area sued Seattle to recover for the damages they suffered and the temporary loss of their businesses and land.
Last month, a federal judge in Washington held that the lawsuit could proceed and that the property owners had pled enough facts to show potential violations of the Fourteenth Amendment’s Due Process Clause (which prohibits the government from depriving individuals of “property without due process of law”) and Fifth Amendment’s Takings Clause (which states that “private property [may not] be taken for public use without just compensation”). This post will examine how those claims would fare in Texas.
The Due Process Clause and the “State-Created Danger” Doctrine
Successfully suing a city in Texas for violating the Due Process Clause would be difficult. In 1989, the Supreme Court held that the Clause generally does not require the government to “protect the life, liberty, and property interests of its citizens from invasion by private actors. In other words, the Clause’s “purpose was to protect people from the State, not to ensure that the State protected them from each other.”
However, one exception to that general rule is the so-called “state-created danger” doctrine, under which the government can be held liable for violating the Due Process Clause if it created or increased the danger to the injured individual. The Supreme Court has never recognized this doctrine. The Fifth Circuit has not either and, in fact, has created such a stringent test that it has never found a set of facts that could satisfy it. Under that test, the plaintiff must show:
- the government created or increased the danger to the plaintiff, a known victim; and
- the government was deliberately indifferent to that danger. To show deliberate indifference, the government official must actually know of and disregard an excessive risk to the plaintiff’s health and safety. “A [government official’s] failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, does not rise to the level of deliberate indifference.”
Even assuming that the Fifth Circuit would recognize the state-created danger doctrine, the business owners in our hypothetical probably could not satisfy it. First, the City did not take an affirmative step to create the danger or make the business owners more vulnerable to it. It was an omission, rather than an act of commission. And, if the government had no hand in bringing about the peril but “simply stood by and did nothing when suspicious circumstances dictated a more active role, it cannot be held liable.” Second, it is doubtful that the business owners are “known victims” under the Fifth Circuit’s test. That court has held that the state-created danger doctrine does not extend to any foreseeable victim, because “increasing the risk of harm to unidentified and unidentifiable members of the public . . . is not sufficiently willful and targeted toward specific harm to remove the case into the domain of constitutional law.”
In contrasts, the Ninth Circuit has recognized the state-created danger doctrine, and the court in the Seattle “CHOP” case held that the Plaintiffs had pled enough facts to satisfy it. It concluded that Seattle’s alleged “actions—encouraging CHOP participants to wall of 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.”
The Takings Clause
The distinction between commissions and omissions is also critical to the business owners’ likelihood of prevailing under the Takings Clause. When the government takes private property, it must pay “just compensation,” that is, the property’s fair market value. The Supreme Court has held stated that a temporary takings claim can be maintained when the government’s action occurring outside the property gives rise to “a direct and immediate interference with the enjoyment and use of the land.” And, once the government has worked a taking of the property, “no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking is effective.”
That being said, the Takings Clause requires compensation only if the property is taken by the government, not a third party. For example, the government is not liable under the Takings Clause if a thief steals a car, even if the government could have done a better job of deterring the theft by erecting more street lights or increasing the amount of police patrols.
But providing authority or assistance to that third party changes the result. State governments have granted the power of eminent domain on private companies, such as railroads and telecommunication providers. Local governments have also seized property themselves and transferred it to private companies to promote “economic development.” Whether the latter transfers are for “a public use” is debatable (and doubtful). But they are unquestionably takings for which the government is required to provide “just compensation.”
The hypothetical above and the Seattle “CHOP” case fall between the government seizing property itself and transferring it to a third party and the government merely failing to prevent theft of and trespass on private property. In the hypothetical, a claim under the Takings Clause would likely not succeed because the City provided no assistance to the activists.
On the other hand, the court in the Seattle “CHOP” case held that the Taking Claim was viable because the property owners had pled facts indicating that Seattle’s “endorsement of, and the provision of material support to CHOP set in a motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of their protected property interest.” Specifically, the Plaintiffs pointed out that Seattle had provided “medical equipment, washing/sanitation facilities, portable toilets, nighttime lighting, and other material support.” And Seattle’s mayor tweeted her support for the activists and infamously predicted a “summer of love” in the area. Based on those facts, the court held that the City might be liable under the Takings Clause. While the Plaintiffs have not won the merits, the case is one to watch.
Tilting the Scales in Your Favor
The situation in Seattle is undoubtedly an extreme situation, but it is an important reminder that the usual recourse for the government’s failure to enforce its laws is political, rather than legal. The Seattle “CHOP” case could be groundbreaking if the Plaintiffs ultimately prevail. Regardless of its outcome, property owners should not rely solely on the government to protect their property but rather make sure that they are adequately insured against property damage and theft.