Rethinking the Seattle “CHOP” Takings Case
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 Zill’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 is that the Takings Clause and similar provisions in state constitutions generally only require compensation for the seizure of property by the government. If, for example, the government seizes 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
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