42 U.S.C. § 1983 | Civil Rights

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Here’s the latest court order telling business and property owners that they have little chance of success on the claims asserted in various mostly-constitutional challenges to shut-down orders.

This time the businesses are in North Carolina, and appear to be — ahem — so-called “gentlemen’s clubs” (and by that, we’re not referencing those in St. James’s), which asserted a host of constitutional claims (including takings), and sought immediate relief.

Today, in this order, the district court denied a preliminary injunction (having denied a TRO last week). The main relief sought is an injunction. The entire order is worth reading, even though it doesn’t focus on the takings question. Applying rational basis review, the court concluded that cases like Jacobson show that the governor’s orders “pass[] this deferential test, where it imposes temporary restrictions on businesses to prevent the spread of COVID-19[.]” Slip op. at 19. Allowing some businesses to …

Continue Reading Federal Court: Talleywhacker Not Likely To Win Coronavirus Shut-Down Takings Claim

Way back when (you know, less than 2 months ago, a lifetime in coronavirus time) when the plaintiffs filed the complaint, we noted that, win or lose, it laid out the takings argument in a comprehensive and understandable way.

It still may be that the arguments are worthwhile pursuing. Our more comprehensive thoughts on that subject here (“Evaluating Emergency Takings: Flattening The Economic Curve“). We don’t know yet, because the district court dismissed the suit because the defendants (Michigan’s governor) enjoys 11th Amendment immunity. Yes, even against claims for just compensation. Opinion and Order Granting Defendant’s Motion to Dismiss, Martinko v. Whitmer, No. 2:20-cv-10931 (E.D. Mich. June 5, 2020).

A suit against the Governor in her official capacity is a suit against the State, and there’s no takings exception to 11th Amendment immunity (according to the court). As is often the case, the harder stuff is …

Continue Reading Federal Court: Not Going To Deal With Takings Argument Because 11th Amendment

EX A

Here’s the city’s Brief in Opposition in a case we’ve been following (so closely, in fact, that we filed an amicus brief in support of the property owner – see “Amicus Brief: Invocation Of “Police Power” Is Not Dispositive In Takings“). A case in which the issues have taken on new and heightened importance.

This is the case where the municipal police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. The homeowner sought compensation for a taking. The Tenth Circuit, however, concluded “no taking” because the police were exercising the police power. And you can’t have a taking where the government is exercising the police power, right?

The homeowner filed a cert petition, arguing that “[t]he question presented is whether there is a categorical exception to the Just Compensation Clause when the …

Continue Reading BIO In “Police Power” Takings Case: Can A Municipality Be Liable For A Taking If The Police Destroy Private Property In The Course Of Apprehending A Suspect?


Here’s the recording of the Federalist Society’s Environmental Law & Property Rights Practice Group teleforum we did a couple of weeks ago, “COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?” Stream above, or download it here.

The issue: how should courts evaluate the claims for compensation arising out of emergency measures? This question is on the front burner at the moment (and will continue to be because the courts will likely be confronted from these type of claims as the fallout continues). For example, here are some of the complaints that have been filed in courts around the nation: see here, here, here, here and here.  

The two featured speakers (Professor Ilya Somin and Professor F.E. Guerra-Pujol), not only debated and answered questions for an hour…

Continue Reading Podcast: COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?”

Here’s the latest complaint that alleges a taking arising out of the coronavirus situation. It joins a long list of similar lawsuits (See here, here, here, here, here, here, here, here, here, here and here, for example.

This one challenges the State of New York’s executive order that bars property owners from pursuing residential evictions for nonpayment of rent and requires the owners to apply security deposits towards rent.

Some interesting elements in the case:

  • The complaint was filed in federal court against the Governor.
  • It avoids the Eleventh Amendment issue by not seeking compensation, only declaratory and injunctive relief.
  • Does that raise the issue of whether such relief is available for a taking?

Stay tuned, this isn’t going to be the last of these things. We wrote up how we think these type of claims should be handled…

Continue Reading Latest Coronavirus Complaint: NY State’s Order Suspending Evictions Is A Taking

Another complaint asserting that a business that had to shut down is entitled to compensation for a taking (among other claims). The business in this case is a law firm, and the complaint is a class action. This joins a long (and growing) list of similar complaints. See here, here, here, here, here, here, here, here, here and here, for example. 

This complaint alleges both a Lucas total wipeout taking, as well as an ad hoc Penn Central type taking.

Read more analysis from Allan Zhang (“Law Firm Cites Founding Fathers in Suit Against Governor Cuomo and Attorney General“) from McKirdy Riskin Olson DellaPelle, our friends and colleagues in New Jersey.

Complaint, Hoganwillig, PLLC v. James, No. 1:20-cv-00577 (W.D.N.Y. May 13, 2020)

Continue Reading New Coronavirus Complaint: Shut Down Order Took Our Law Firm (NY)

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Here’s what we’re reading today as we enter a long weekend (who can tell?):

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Continue Reading Saturday Readings: Commandeerings, Business Reopenings, #coronalaw Property Rights

Our shut-in time has got us to thinking.

We’re all environmentalists now. This is the precautionary principle writ large. In a way, this is only part of a greater problem.

Welcome to the Twitterverse. We now have access to a vast amount of data — very often on a granular level — and this moves faster than the ability

Americans like to work

Americans are pretty wiling to give our elected leaders a lot of slack

playground Constitution has serious legs

Most don’t understand that their rights are, in normal time, highly restricted, at least in courts

takings lawyers are not really surprised as everyone else – we’re used to courts deferring to what may look like excessive and unwarranted assertions of governmental power. Unlike a lot of other litigation involving the government, representing property owners in eminent domain or takings cases

basic takings doctrine is really incoherent

we already…

Continue Reading Things I’ve Learned (Am Learning) About #CoronavirusLaw

The hits keep on coming. Here’s the latest complaint alleging that a coronavirus-related shut-down order is a taking (among other things).

This joins a long list (see here, here, here, here, here, here, here, here and here, for example) of complaints alleging takings. We’re guessing there’s no horizon on such claims in sight yet.

Here’s a summary of the takings claim:

The Orders and Emergency Directives effectively amount to an impermissible “partial” or “complete” taking in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution in that the prohibition of Plaintiffs’ operation of their “Non-Essential Business” constitutes a regulatory taking of private property, for public purpose, without providing just compensation therefore. Furthermore, the Orders and Emergency Directives violate the Takings Clause of the Fifth Amendment in that the complete prohibition of the business operations of “Non-Essential Businesses&rdquo…

Continue Reading One More Coronavirus Takings Complaint (Nevada, pt. II)

Screenshot_2020-05-12 William Mary Law Review

Looking for some property and takings scholarly reading while you cool your heels at home? Well, the William and Mary Law Review has recently published no less than three worthy pieces, all available for download.

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Continue Reading Three New Property And Takings Articles From William & Mary Law Review