We all know that despite the heightened Twombly/Iqbal federal pleadings standard, that it doesn't mean a whole lot if a complaint survives a 12(b)(6) motion to dismiss. All this means that the court thinks it is plausible that the complaint states a claim. And that the plaintiff gets to keep going. That's it.
But when takings claims are involved, we also know that courts can be dismissive, and a property owner surviving a motion to dismiss can be kind of a big deal.
In Hunters Capital LLC v. City of Seattle, No. C20-983 (Oct. 16, 2020), the U.S. District Court for the Western District of Washington dismissed the plaintiffs' equal protection claims, but held that the procedural and substantive due process, and takings claims survived. This is the case on which we posted earlier, in which property owners in the part of Seattle known as CHOP (or CHAZ) sued for a taking and other constitutional violations, alleging that the city not only failed to prevent the anarchist takeover of the neighborhood and the plaintiffs' properties, but that the city actively aided and abetted the effort.
We urge you to read through the entire order (the takings analysis begins on page 20. The court focused on the allegations that the plaintiffs owned "private property" and interests protected by the Fifth and Fourteenth Amendments. The court held that the plaintiffs plausibly alleged that under Washington law, they possess a right of access:
Plaintiffs allege that from June 8 to July 1, 2020, the City allowed and encouraged CHOP participants to block access from Plaintiffs’ properties to streets and other public rights-of-way, FAC at ¶¶ 70, 177, 211–13, resulting in the deprivation of all or nearly all economic use of their properties, id. at ¶¶ 97, 101, 109, 113–14, 118. Those allegations support Plaintiffs’ assertion that the City’s policies and practices related to CHOP deprived them of protected property interests, albeit temporarily, without just compensation. See Keiffer, 89 Wn.2d at 372; Guimont, 121 Wn.2d at 597–98 & n.3; see also City of Seattle v. McCoy, 101 Wn. App. 815, 829, 4 P.3d 159 (2000) (“[T]emporary takings are subject to the same categorical treatment as permanent takings where a regulation denies all use of the property.”) (internal quotations and citation omitted); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–40, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982) (holding that a New York law requiring the plaintiff and other landlords to allow a third party to place cable facilities in their buildings constituted a taking).
Slip op. at 22 (footnote omitted). Property box checked.
What about the "taken" part of the takings question (the court in a footnote noted that it was looking at the allegations both through the total takings Lucas lens, as well as the ad hoc Penn Central lens, see Order at 22, n.6), and the notion that the government isn't usually liable for a taking for actions undertaken to respond to a calamity, or because of governmental omissions:
The Court acknowledges that judgments about where and to what degree the police should be deployed in these types of emergency situations are best left to the City. See Monarch Ins., 353 F. Supp. at 1255–56. Under Plaintiffs’ theory of the case,however, the City is not liable under § 1983 simply because its response to the creation of CHOP was “too little, too late,” id. at 1255, or because the City failed to prevent CHOP participants from physically invading their properties, cf. Citoli, 115 Wn. App. at 488. Plaintiffs plausibly assert that the City’s endorsement of, and the provision of material support to, CHOP set in motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of protected property interests. FAC at ¶¶ 174, 182, 212–13. These allegations support the claim that the City’s conduct was “causally related to [the] private misconduct” and it was “sufficiently direct and substantial to require compensation under the Fifth Amendment.” YMCA, 395 U.S. at 93.
Order at 23 (footnote omitted). So yes, even though this was an emergency of sorts, it wasn't the city failing to do something, it was the city providing material aid and support (so the complaint alleges). Almost an acting-in-concert or aiding-and-abetting theory.
Again, we note that this is just the plaintiffs' complaint surviving a motion to dismiss. Not a win on the merits. So don't get too excited, because the game is far from over.
But still, we think this is a good opinion to read and a case to watch.
Order, Hunters Capital LLC v. City of Seattle. No. C20-983 (W.D. Wash. Oct. 16, 2020)
