Any regular reader of these pages knows about the Williamson County/San Remo Hotel “ripeness” Catch-22: try vindicating a property owner’s federal constitutional right in federal court in the first instance, and the federal court will tell you that you are too early — a regulatory taking is of no constitutional moment until the…

Sometimes, you have to wonder. In an otherwise well-written opinion, in Johnson v. Manitowoc County, No. 10-2409 (Mar. 19, 2011), the U.S. Court of Appeals for the Seventh Circuit concluded that a Wisconsin property owner who suffered damage to his rental property when the authorities executed a search warrant against his tenant did not have a Fourth Amendment or takings claim.

Mr. Johnson had the bad fortune to rent his property to a guy who was accused and eventually convicted of murder, and in the course of their investigation, the police seized several of Mr. Johnson’s items, and damaged his property by “removing carpet sections and wall paneling, cutting up a couch in the trailer, and jackhammering the concrete floor of the garage.” Slip op. at 3. Mr. Johnson had yet to pursue Wisconsin procedures to get his property back and to address the damage to his property, but he filed a complaint in federal court, seeking damages under civil rights law for violation of his constitutional rights. The district court granted the County’s motion for summary judgment, and the Seventh Circuit affirmed. The search and seizure was not “unreasonable” under the Fourth Amendment, and the owner has no takings claim under the Fifth Amendment.

There’s nothing obviously outlandish about the court’s takings conclusion — it’s a result that other circuits have reached in similar circumstances. See, e.g., Amerisource Corp. v. United States, 525 F.3d 1139 (Fed. Cir. 2008) (a drug company’s product that was seized but never used in a government investigation, and which was rendered worthless in the interim, did not have a Tucker Act claim for compensation). It might be an incident of ownership that all property is subject to reasonable searches in furtherance of the state’s need to enforce the criminal law. Or, under Williamson County, a federal court could validly ask what a federal takings claim was doing in federal court while there apparently remain avenues for obtaining compensation under state law. But that’s not how the court analyzed the case.

Instead, it addressed it this way:

The Takings Clause provides, “nor shall private property be taken for public use, without just compensation.” It is made applicable to the States by the Fourteenth Amendment. Kelo v. City of New London, Conn., 545 U.S. 469, 472 n.1 (2005). But the Takings Clause does not apply when property is retained or damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain. See AmeriSource Corp. v. United States, 525 F.3d 1149, 1154 (citing Bennis v. Michigan, 516 U.S. 442, 452 (1996)). Here, the actions were taken under the state’s police power. The Takings Clause claim is a non-starter.

Slip op. at 10.

The court’s conclusion that a takings claim is a “non-starter” because the government has not invoked its power of eminent domain is utter nonsense. Indeed, the doctrine of regulatory takings is premised on the idea that the government’s exercise of power other than the eminent domain power is a taking if it “goes too far.” See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (state’s exercise of its police power was a taking).

We actually like the way this opinion is written, in plain, easy-to-understand language. See, e.g., slip op. at 1 (“A landlord is lucky when he rents a dwelling he owns to a tenant who turns out to be pretty good. When he rents to a tenant who turns out to be fairly bad, he’s unlucky.”); slip op. at 8 (“Johnson argues that the officers’ use of the jackhammer violates the reasonableness standard of the Fourth Amendment. He contends that the officers should have used a diamond or carbide-bladed saw, which would have resulted in less damage to the garage floor. Perhaps Johnson is correct, but the use of the jackhammer looks to be reasonable under the circumstances.”). So it’s a shame that an opinion that is such a pleasure to read could get its reasoning so wrong on the takings claim.

It’s not like the regulatory takings doctrine is a recent concept, or a wholly undeveloped area of law, so we fail to see how the court’s analysis was so off the mark, especially since there were, as noted above, other ways of disposing of this case without perpetuating bad law.Continue Reading Say What? 7th Circuit: “Takings Clause does not apply when property … is damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain.”