On a day earlier this week in which a different practice group in our firm Pacific Legal Foundation (incidentally led by a Property Rights lawyer, Chris Kieser, by the way) saw the U.S. Supreme Court agree to review a very important case, we also saw the Court deny certiorari in two takings cases we were watching.
The first, O’Donnell v. City of Chicago, No. 25-1098, sought review of the Seventh Circuit upholding Chicago’s thuggish approach to parking tickets. Under a city ordinance, the city is authorized to seize vehicles for traffic violations — even other cars the violator owns that are not involved in the violations — is not a taking because its “an exercise of the City’s police power to enforce its traffic code, and thus isn’t a taking.”
The Court also denied Pena v. City of Los Angeles. No. 25-1163, a very substantial petition on the “SWAT takings” issue, where the Ninth Circuit held that the city could not be liable for a taking after SWAT officers severely damaged a home in the course of apprehending a suspect who had taken refuge there. As in O’Donnell, the Ninth Circuit held that this was an exercise of police power, and thus categorically immune from being deemed a de facto taking requiring just compensation.
Sadly yes, the Court declined to review both of these cases. But importantly, two Justices in O’Donnell issued a statement regarding denial of cert, which provides a roadmap for the future, opening up the scope of the issue. The issue in these and other cases is whether certain exercises of the police power (the sovereign’s power to regulate fundamental rights to further the public’s health, safety, welfare, or morals) are not subject to the usual rule of Pennsylvania Coal Co. v. Mahon (rights may be regulated, but if the regulation “goes too far” it will be deemed a de facto taking) because of some exigency or necessity.
There is a growing split of lower court authority on this issue (see, e.g., SWAT takings, Co-19 shutdowns, eviction moratoria, and the like). Justices Sotomayor and Gorsuch noted this issue, and although both agreed with denying cert in O’Donnell and Pena, pointed out that the issue remains unresolved and in the right case, they’d want the Court to take it up.
Justice Sotomayor wrote:
The Seventh Circuit upheld that scheme as consistent with the Fifth Amendment’s Takings Clause, reasoning that it is “an exercise of the City’s police power to enforce its traffic code.” 163 F. 4th 411, 414 (2025). I have serious concerns about that conclusion, which implicates a Circuit split over whether, and under what circumstances, exercises of the State’s police power are immune to takings claims. Because that split would continue to benefit from further percolation, however, and because this case is not the best vehicle to resolve the split, I concur in the Court’s denial of certiorari.
Our answer: we thought Pennsylvania Coal solved this question when it rejected Justice Brandeis’s dissent which argued that the Kohler Act was really necessary and thus could not require compensation. But the other eight Justices concluded that if one owner was being required to shoulder alone a public benefit, the Just Compensation requirement spread the cost of that benefit to all those who benefited.
The “public” in the “salus populi” canon includes the property owner, after all. The sovereign may have a darned good reason to take or destroy property. But that just means the cost-spreading Armstrong rationale applies even more.
Stay tuned as always.