42 U.S.C. § 1983 | Civil Rights

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Check out the U.S. Court of Appeals for the Sixth Circuit’s opinion in Howard v. Macomb County, No. 24-1655 (Mar. 28, 2025).

This is one of those post-Tyler cases asking whether the government satisfies the Fifth Amendment after it has taken someone’s home equity by satisfying the owner’s tax debt and then keeping the excess. Hold on, didn’t the unanimous Supreme Court in Tyler say no, that violates the Takings Clause?

Well yes. You remember the “render unto Caesar” thing, and the “bank robber giving back the money” thing. So there’s a taking without compensation — and thus a violation of the Takings Clause — the moment the government keeps what it is not supposed to keep. But Tyler also referred to an earlier case, Nelson v. City of New York, 352 U.S. 103 (1956), which has been read to get the government off the hook if it…

Continue Reading CA6: Property Owner Needs To Exhaust State Remedies Before Filing Takings Claim

Check out the U.S. Court of Appeals for the Tenth Circuit’s recent opinion in Knellinger v. Young, No. 23-1018 (Apr. 11, 2025). 

It’s worth reading because the court doesn’t fall into the common trap of concluding that although an owner need not exhaust administrative remedies before asserting a takings claim, he nonetheless doesn’t have “private property” because … he hasn’t exhausted administrative remedies to get his property returned. As the court summed it up:

[The owners] … argu[e] that they alleged facts sufficient to state a claim that Colorado took their property for public use without just compensation. We agree. Property owners who plausibly allege that Colorado has taken custody of their property under RUUPA, and used it for public purposes, need not file administrative claims with Colorado before they may sue for just compensation. The moment a state takes private property for public use without just compensation, a…

Continue Reading CA10: Takings Clause Means Never Having To Administratively Ask To Get Your Property Back

Purpose

Before we go further, a disclosure: this is one of ours.

Here’s the Complaint for Violations of Constitutional and Civil Rights, filed yesterday by the Santoro Family in federal court in Rhode Island. This lawsuit challenges, under the Public Use Clause, a RI town’s eminent domaining the family’s land for the ostensible purpose of building a new municipal campus. 

Sounds like a “classic” public use, you say? Not so fast. As alleged in the complaint, the actual use, purpose, and necessity for the taking is something else: to stop the Santoros from building 250+ low- to moderate-income housing.

Because this is one of ours, we won’t say more. But here’s the story, from the Complaint:

1. SCLS Realty, LLC, and Sixty Three Johnston, LLC, family-owned homebuilders whose members are Lucille Santoro, Salvatore Compagnone, Ralph Santoro, and Suzanne Santoro (the plaintiff LLCs are referred to herein jointly as…

Continue Reading Challenge To Sham Eminent Domain: The Government Can’t Lie About Why It Takes Property

What does a property owner do if she believes that the government’s eminent domain lawsuit is abusive? Is the remedy limited to the four corners of the eminent action (i.e., a counterclaim, third-party claim, etc.), or may a landowner institute a separate action which includes a tort claim for abuse of process? 

In Indiana Land Trust #3083 v. Hammond Redevelopment Comm’n, No. 24A-PL-1284 (Jan. 31, 2025), the Indiana Court of Appeals held that because the remedies in an eminent domain case and an abuse of process case are different, the owner may press claims that the “taking was for ‘discriminatory private purposes, for private gain, motivated by spite and/or that it is against public purposes[.]'” in a separate abuse of process lawsuit. Slip op. at 5. 

Here’s the order of events:

  • Redevelopment agency instituted an eminent domain case in state court to take owner’s property as part of a

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Continue Reading Ind App: Eminent Domain Abuse Is [Also] Abuse Of Process

We’ve long been fans of the Short Circuit podcast, a production of the Institute for Justice’s Judicial Engagement project. If you are not subscribed, you should be. It’s a great way to keep up on what is going on in the federal courts of appeals (ha, ha, now I get “short circuit”), with keen insight from the IJ team and others. Even us, from time-to-time.

The latest episode is no different. It covers a recent Fourth Circuit case we blogged about, in which the court rejected the property owner’s state-law inverse claims but also left some tantalizing crumbs about how to raise a claim that a taking lacks a public use or purpose. We score a mention!

As we wrote:

Now, here’s the useful dicta in the case. The court noted that it was not saying that these type of circumstances can never present a claim.

Continue Reading What Lingle Missed: Short Circuit Covers Eminent Domain Pretext

Property_rights_and_the_roberts_court_Agenda_

Register now and plan on joining us on Thursday, February 27, 2025 at the U.C. Berkeley Law School for a one-day conference: “Property Rights and the Roberts Court: 2005-2025.”

Here’s the agenda. Here’s a description of the program:

For much of the past century, property rights were relegated to second-class status compared to the rest of the Bill of Rights. However, under the Supreme Court leadership of Chief Justice John Roberts, this trend has begun to shift.

In recognition of the 20th anniversary of the Chief Justice’s elevation to the Supreme Court, Pacific Legal Foundation is partnering with Berkeley Law’s Public Law and Policy Program to host a day-long conference exploring the major property rights developments and future of property rights law in the Roberts Court.

We’ll hear from two different panels of renowned legal scholars and accomplished litigators, as well as a keynote lunch discussion between…

Continue Reading Join Us: “Property Rights and The Roberts Court: 2005-2025” (Feb. 27, 2025, UC Berkeley Law School)

The facts in D.A. Realestate Inv., LLC v. City of Norfolk, No. 23-1863 (Jan. 16, 2025), a recent decision from the U.S. Court of Appeals for the Fourth Circuit, are fairly sympathetic. And the opinion starts off with a tantalizing quote:

In 1761, Massachusetts lawyer James Otis exclaimed “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle.” John Adams’s Reconstruction of Otis’s Speech in the Writs of Assistance Case, in Collected Political Writings of James Otis 12–13 (Richard Samuelson, ed. 2015). American law has embraced that principle since our nation’s founding. U.S. Const. amend. V. But we have also long recognized that “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.” Mugler v. Kansas, 123 U.S. 623, 665 (1887).

Slip op.

Continue Reading CA4: Challenge Public Use/Pretext Under Due Process And § 1983, Not Inverse

We tend to avoid cases about insurance. Not because they are dull (as you might wrongly imagine). Indeed, there’s more excitement in insurance cases than you’d guess. But insurance law and the insurance regulation field needs a certain level of very niche expertise that we don’t possess. So normally, we would not have given the U.S. Court of Appeals for the Third Circuit’s opinion in Pennsylvania Prof. Liability Joint Underwriting Ass’n v. Gov. of the Commonwealth of Pennsylvania, No. 18-2297 (Dec. 16, 2024) a second glance.

But a case that at first glance seemed about insurance contained lot of “takings” references sprinkled across the many pages of the opinion, so it pinged our radar. And it turns out it was worth a download and review if you keep your expectations in check.

In the end, the court didn’t really tell us much about regulatory takings doctrine, even though the…

Continue Reading CA3: State-Created Association Is A State Actor With No Private Property Rights

Screenshot 2024-11-20 at 09-16-50 Lake Worth Lagoon - Google Maps
Lake Worth: the “lago” in Mar-a-Lago

You know his name. He’s taken on the City of Riviera Beach twice at the U.S. Supreme Court. And won both times. The houseboat that isn’t a boat. The government can’t shut you out from speaking your mind simply because you irritate them.

That’s right, it’s Fane Lozman. A “Florida Man” that you can like and admire. And he’s back for Round 3.

He owns property that’s mostly in (in, not near) Lake Worth. Two-tenths of an acre is uplands, and the rest (7.75 acres) is submerged. As the Eleventh Circuit noted, “[o]nly a sliver of Lozman’s property is above water.” 

The city, in accordance with the usual approach to land use regulation has a comprehensive plan. That plan designates submerged lands as “Special Preservation Future Land Use,” a label which should set off your Lucas…

Continue Reading CA11: Takings Claim Not Ready Despite Govt’s Enforcement Actions

2025 San Diego

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here’s a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to Prove “Too Far”
  • Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
  • Kelo at Twenty: What Changed, What Didn’t, and What’s on the Horizon
  • Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land’s Inverse Condemnation Taking
  • Ethics: Guiding the Trolley: Perspectives on Professional Ethics in

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Continue Reading Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don’t Miss Out!)