Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation
A horse is a horse, of course, of course…. unless the horse is the focus of a major takings case, in which a federal court will generate over 100 pages of opinions regarding whether the owner can sue under the Takings Clause to be compensated for its seizure.
The case of Fulton v. Fulton County, recently decided by the US Court of Appeals for the 11th Circuit, arose because Fulton County, Georgia authorities sought to charge Brandon Fulton (no relation to the person the county is named after) with animal cruelty. In the process, they seized his horses. Ultimately, the charges were dropped, but county authorities refused to return Fulton’s horses, or compensate him for them.
For various procedural reasons, he could not sue for compensation under either state law or federal statutes. Therefore, he sought to sue directly under the Takings Clause of the Fifth Amendment, which requires “just compensation” whenever the government takes “private property.” The issue of whether the Takings Clause is “self-executing” – whether people can sue under it in the absence of legislation authorizing a remedy – is one the Supreme Court avoided addressing last year in DeVillier v. Texas (where they held they did not have to reach it because the plaintiff had a remedy under Texas state law, which cold be pursued even in federal court).
The Eleventh Circuit has now addressed the issue in this case, in a divided 2-1 decision, which generated over 100 pages of opinions. To my mind, however, the issue is readily resolved by clear and simple points made early in Judge Robin Rosenbaum’s compelling majority opinion:
In Greek mythology, the Greek gods condemned Tantalus to eternal hunger and thirst, all while forcing him to forever stand in a shallow pool of water under a tree with low hanging fruit. Though the remedy for Tantalus’s hunger and thirst was right at
hand, he could not take advantage of it. The water receded when Tantalus bent down to drink, and the fruit rose to just above his grasp when Tantalus tried to reach it.Our Founders did not do to us what the Greek gods did to Tantalus. Our Constitution explicitly promises exactly two remedies: “just compensation” if the government takes our property, and the writ of habeas corpus if it tries to take our lives or liberty. And the Constitution delivers directly on each. It doesn’t taunt us by naming these remedies but then holding them out of reach, depending on the whims of the legislature.
So even
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