Check this out: a significant and important decision from the U.S. Court of Appeals for the Eleventh Circuit in an issue we’ve been following.
In Alford v. Walton County, No. 2021-13999 (Nov. 17, 2025), the unanimous panel concluded that the county’s Co-19 restrictions, which closed all beaches (public and private) in the county, worked a physical taking of Alford’s private property rights.
In response to the outbreak of Co-19, which the opinion notes was “a novel virus from Wuhan, China,” slip op. at 3, Florida declared a state of emergency, and followed up with an executive order that limited beach access statewide to “no more than 10 persons,” imposed a six-foot separation, among other things. Two days later, the county adopted an ordinance closing all public beaches in the county.
The following month, after the governor issued further executive orders, the county temporarily closed “[a]ll beaches” in the county, and made it a criminal offense to enter or remain on any beach. As the court put it, “[i]n other words, Ordinance 2020-09 closed all beaches in Walton County–public and private–and made it a criminal offense for private beach owners (or anyone else) to use or access their beach property.” Slip op. at 5 (footnote omitted).
Owners of private beaches sued because “Ordinance 2020-09 forbade those Landowners from entering and remaining on significant portions of their private property.” Slip op. at 6. The parties eventually each sought summary judgment.
The district court denied the owners’ motion, and granted the county’s. Relying on Jacobson v. Massachusetts, 197 U.S. 11 (1905), the district court concluded that government has wide latitude to respond to emergencies, and that this was not a physical taking but merely a restriction on use. And no Penn Central taking, in case you were wondering.
The Eleventh Circuit reversed. It first agreed with the district court that the claim for prospective injunctive relief was moot because the county’s restrictions had expired. But on the merits of whether the restrictions are a compensable regulatory taking, the court held:
This case involves a textbook physical taking: Walton County enacted an ordinance barring the Landowner from entering and remaining on their private property; Walton County’s officers physically occupied the Land-owners’ property; and Walton County’s officers excluded the Landowners from their own property under threat of arrest and criminal prosecution. In other words, Walton County wrested the rights to possess, use, and exclude from the Landowners, and it took those rights for itself. That triggers the Landowner’s right to just compensation.
Slip op. at 14.
The court’s analysis tracks the language of the Fifth Amendment. First, the court recognized that the owner’s private property rights include the right to exclude, which is the property right at stake here. Next, the court concluded the right was “taken,” holding that this was not the government physically acquiring the private beaches, but rather, the county imposed a regulation that restricted the owners’ right to use their own land. Slip op. at 16. The court held that the regulations caused a “taking”
Although this case involves a county ordinance, the Ordinance at issue effectuated a “physical appropriation” of the Landowner’s property. Id. Thus, “a per se taking has occurred, and Penn Central has no place.” Id. Ordinance 2020-09 physically appropriated the Landowners’ property because it barred their physical access to the land. And to enforce the Ordinance, the County entered the Landowners’ property at will for the specific purpose of excluding the Landowners. The County’s officers parked their vehicles on private property to deter entry, used private property as their own highway, and forced Landowners to vacate their property under threat of arrest. Put simply, the County “entered upon the surface of the land and t[ook] exclusive possession of it,” thereby triggering the right to just compensation. Causby, 328 U.S. at 261.
Slip op. at 18-19.
The court rejected the district court’s conclusion that the county’s regulations were merely restrictions on use, because all of the sticks in the owners’ property rights bundle were not taken. The owners could still sell, wait for the ordinance to expire, and use other parts of their land. But “[n]one of these points makes a difference.” Slip op. at 19. The court relied on Cedar Point, holding:
Here, the physical taking at issue is even more severe than the one in Cedar Point. Unlike the regulation at issue in Cedar Point, Ordinance 2020-09 in-fringes on the right to exclude and the rights to possess and use. The Ordinance prohibited the Landowners from entering and remaining on their own property, while County officers entered and remained at will. The mere fact that the Landowners could—according to the district court—still “exclude the public” from their property is immaterial. In Cedar Point, it made no difference that the property owners retained the right to exclude everyone but the “union organizers.” See 594 U.S. at 144. Likewise, it makes no difference here that the Landowners retained the authority to exclude everyone other than County officials tasked with enforcing the Ordinance.
Slip op. at 20-21.
The Eleventh Circuit’s opinion ended with a missive about Jacobson. “As stated in the introduction–and it bears repeating–there is no COVID exception to the Takings Clause. In fact, there is no exception for any reason[.]” Slip op. at 25. In short, the existence of a public-health emergency is not a factor in a takings analysis.
That is especially true in the Takings Clause context, where we presuppose that “the government has acted in pursuit of a valid public purpose.” S. Grande View Dev. Co., 1 F.4th at 1311 (quoting Lingle, 544 U.S. at 543). Here, the district court appears to have conflated a consideration of the Fifth Amendment’s “public use” requirement with its “just compensation” mandate. Even if Walton County had a legitimate reason to physically appropriate the Landowners’ property, Walton County “must pay” for what it took. Cedar Point, 594 U.S. at 148.
Slip op. at 26.
The entire opinion is worth a detailed read. We recommend it.
If you want to see a more complete walk-through of our thinking on this issue, we wrote about it a few years ago in “Evaluating Emergency Takings: Flattening the Economic Curve,” 29 Wm. & Mary Bill of Rights J. 1145 (2021).
Alford v. Walton County, No. 2021-13999 (11th Cir. Nov. 17, 2025)